Yim and Anor and Zieth (No.2)
[2019] FCCA 436
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YIM & ANOR & ZIETH (No.2) | [2019] FCCA 436 |
| Catchwords: FAMILY LAW – Property and parenting applications – respondent father seeks summary dismissal of initiating proceeding on the ground of fraud – application dismissed in December 2018 – order for proceeding to be set down for trial in May 2019 – respondent files appeal from order dismissing application – respondent files further Application in a Case seeking summary dismissal of initiating proceeding, again relying on the ground of fraud – applicable principles – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AA, 44, 60CA, 60CC, 69ZN Evidence Act 1995 (Cth), ss.140 Crimes Act 1914 (Cth), s.35 Crimes Act 1958 (Vic), s.314 |
| Cases cited: Allesch v Maunz (2000) 203 CLR 172 Amaca Pty Ltd vKing (2011) 35 VR 280 Cooper v Board of Works for the Wandsworth District (1963) 143 ER 414 Cuan & Kostelac [2017] FamCAFC 188 Dr Bentley’s case [1723] 93 ER 698 Grimshaw v Dunbar [1953] 1 QB 408 Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712 Kioa v West (1985) 159 CLR 550 Morad v El-Ashey [2017] FCA 1136 Nichol v Discovery Africa Limited [2016] FCAFC 182 Re Brook and Delcomyn [1864] 143 ER 1184 Spencer v The Commonwealth (2010) 241 CLR 118 Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 Yim & Anor v Zieth [2018] FCCA 3797 |
| First Applicant: | MS YIM |
| Second Applicant | MR YIM |
| Respondent: | MR ZIETH |
| File Number: | MLC 10467 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 February 2019 |
| Date of Last Submission: | 18 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr Carne |
| Solicitors for the Applicants: | Oakfair Lawyers |
| The Respondent: | In person |
| Solicitors for the Independent Children's Lawyer: | Ms Walters |
ORDERS
The Application in a Case filed on 24 December 2018 be dismissed.
By 4:00pm on Friday, 5 April 2019, the applicants file and serve in electronic format a chronology of all events referred to in any affidavits which have been filed (by any party) and upon which they intend to rely at the trial of the proceeding.
By 4:00pm on Friday, 10 May 2019, the respondent and independent childrens’ lawyer each file and serve in electronic format a chronology which consolidates:
(a)all of the events referred to in the chronology prepared by the applicants pursuant to paragraph 2 of this Order and indicating (by means of a separate column) whether they agree or disagree with the event as described by the applicants’ chronology;
(b)any further events as referred to in any affidavits which have filed (by any party) and upon which they intend to rely at the trial of the proceeding.
By 4:00pm on Friday, 24 May 2019, the applicants file and serve in electronic format a document which annotates the consolidated chronology served pursuant to paragraph 3 of this Order and indicates whether they agree or disagree with each of the further events inserted in the chronology by the respondent or the independent children’s lawyer.
The parties are to describe each of the events in chronology to be prepared pursuant to paragraphs 2 – 4 of this Order and upon which they seek to rely in a neutral and non-tendentious manner.
Each of the parties make discovery of any passports held by them in the period 2003 – 2019.
NOTATION:
A. The parties have been reminded of the orders and directions made by paragraphs 2 – 7 of the Order made on 10 December 2018.
IT IS NOTED that publication of this judgment under the pseudonym Yim & Anor & Zieth (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10467 of 2018
| MS YIM |
First Applicant
| MR YIM |
Second Applicant
And
| MR ZIETH |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed on 24 December 2018, the respondent seeks orders including for a review and stay of orders made on 10 December 2018 together with summary dismissal of the applicants’ initiating application which is set down for hearing on 29 May 2019.
The orders made on 10 December 2018 dismissed an Application in a Case filed on 25 October 2018 by which the respondent sought dismissal of the proceeding. That application was dismissed for reasons contained in Yim & Anor v Zieth [2018] FCCA 3797. These reasons for judgment should be read with those reasons. The orders made on 10 December 2018 are the subject of an appeal which is pending.
Notwithstanding dismissal of the earlier Application in a Case and the pending appeal from the orders made on 10 December 2018, the respondent again seeks dismissal of the initiating proceeding and again does so on the basis that the claim is tainted by fraud. As this Application in a Case was also listed in a duty list, I reserved my decision.
Background
As these reasons for judgment concern the determination of an Application in a Case which was heard in a duty list, the evidence on which the parties relied was not tested by cross-examination. The matters addressed below do not represent any ultimate findings of fact and should not be understood as indicating a final view of the matter. The parties remain in dispute as to many of the precise dates and facts in issue in the proceeding.
On the respondent’s case, the parties commenced a de facto relationship in 2003 which ended in 2009. The first applicant claims that the relationship ended in 2015. The respondent has had two prior marriages, is aged 58 years and has one adult child from an earlier relationship. The first applicant, who has never married, is aged 40 years. Each of them is an Australian citizen. The respondent is a professional working in Melbourne while the first applicant is employed in China as a professional where her contract expires in approximately two years. Notwithstanding that she has been largely absent from Australia, the first applicant deposes to an intention to return to Melbourne upon the expiry of that contract.
There are two children of the parties’ union who are now aged 15 and 12 years respectively and are now attending a school in Suburb A. I note that following the birth of the elder child, he was sent to China to live with his maternal grandparents for about one year. Both children returned to China to live with their maternal grandparents in 2007.
In the period from at least 2007 – 2013, the parties lived a peripatetic existence. In 2007, the first applicant moved to China. The respondent deposes that in January 2009, the first applicant told him that their relationship was over. At some point, the respondent also moved to China. The first applicant contends that the respondent’s attempts to pursue a business venture in China foundered in 2010 – 2012 and following this he returned to Australia. The respondent contends that his business was affected adversely by the global financial crisis but that he has always been resident in Melbourne.
The first applicant also contends that she remained in China to pursue income earning activities at least in part by reason of the respondent’s financial difficulties. The respondent maintains that the first applicant remained in China against his wishes and that her conduct in doing so constituted her neglect, abuse and abandonment of the children.
The respondent further claims that notwithstanding the end of the relationship in 2009, he purchased two properties, title to each of which he registered in the first applicant’s name. One of those properties is situate in Property A while the other is located in Property B. Each is encumbered by a mortgage. The respondent maintains that he has made all contributions to service those mortgages and that the properties were only registered in the name of the first applicant upon the advice or recommendation of his mortgage broker.
It is common ground that the first applicant did not reside in Australia in the period 2013 – 2018. The respondent maintains that during this period, he was responsible for the financial and emotional care and development of the children. On the respondent’s case, in 2014, an onshore aged parent visa application was lodged on behalf of the second applicant which, as he contends, was part of the ‘solution’ for the care, welfare and development of the children. The respondent contends that the second applicant has become both an obstacle to the children’s development and that he has abused them. He further contends that he too has been assaulted with a chair and knife by the second applicant who, as he claims, has also threatened to destroy his business.
It appears that by August 2018, matters had escalated to a point where the respondent communicated with the first applicant to secure the removal of the second applicant from the Property A property. The respondent sought that the second applicant vacate the Property A property. The respondent deposes that on 16 August 2018, the first applicant returned to Australia unannounced for a period of two days and that shortly after her return to China, he received a letter from the first applicant’s lawyers. His evidence is corroborated by a letter dated 20 August 2018 which was exhibited to the first applicant’s affidavit. Although the respondent claims that he has wanted the dispute in relation to parenting issues to be resolved without delay, he claims that the first applicant refuses to vacate the Property A property. As the respondent is concerned, the second applicant has been the mastermind behind a plan to take his property and is using the children as pawns in achieving that objective. At first sight it appears that the catalyst for the escalation in the parties’ dispute was the respondent’s request that the second applicant vacate the Property A property followed by the sudden arrival of the first applicant in Australia for two days and the receipt of a letter of demand. The first substantive issue raised in that letter concerns a request for resolution of property interests. Then follows a proposal about parenting including that the respondent refrain from attempting to change the children’s schooling.
On 7 September 2018, the applicants filed their initiating application. Relief is sought by way of adjustment of property interests and parenting orders including that the children live with the first applicant and that they spend time with the respondent.
As concerned an adjustment of property interests, an order was sought pursuant to s 44(6) of the Family Law Act 1975 (Cth) (Act), granting the first applicant leave to file her property application out of time.
Of relevance to the present application is that on 30 August 2018, the first applicant affirmed an affidavit in support of her application and by which she recounted her version of the events giving rise to this proceeding.
The respondent contends that on about 11 September 2018 and without notice, the first applicant sought an intervention order against him on an ex parte basis. The immediate effect of this order has been to restrain the respondent from entering the Property A property. This proceeding is returnable in April 2019. The respondent has made a reciprocal application for an intervention order (albeit that it is against the second applicant). The respondent contends that the second applicant has a practice of recording the parties’ conversations and those of the children.
Each of the parties has filed a notice of risk. Despite the relatively early stage of the proceeding, subpoenas have also been issued.
The respondent engaged lawyers who filed a Response and answering affidavit. By his Response, orders are sought that the children live with the respondent and spend time with the first applicant by agreement. He also sought an order for the sole use and occupation of the Property A property. Ancillary orders were sought including that the second respondent be restrained from driving the children, for the return of his motor vehicle, for the preparation of a family report and other matters. In Part D of his Response, issues put in contest included that:
a)the first applicant had not lived in Australia since 2007 but had lived exclusively in China during that period;
b)the de facto relationship had ended in 2009 (not 2015);
c)the children had lived with the respondent until 11 September 2018;
d)the first applicant had not made substantial contributions to the acquisition of property; and
e)the court should refuse a declaration granting leave to commence the proceeding out of time seeking an adjustment of property interests as it would not result in serious injustice to the first applicant.
It is undesirable to rehearse the full history of matters as detailed in the parties’ principal affidavits. For present purposes it is sufficient to note that a large number of issues are put in contest and to the extent presently relevant are addressed below.
On 15 October 2018, orders were made for the appointment of an independent children’s lawyer and for inspection of documents produced by the Department of Health and Human Services. Other orders were made by consent which provided for the children to live with the first applicant and spend time with the respondent on alternate Saturdays (and as otherwise agreed), for the children to continue or to be enrolled at secondary college and for a family report.
On 25 October 2018, the respondent, who had now terminated the retainer of his lawyers filed an Application in a Case seeking summary dismissal of the proceeding on the grounds that it was fraudulent, frivolous, vexatious, and an abuse of process.
On 10 December 2018, orders were made dismissing that application: see [2018] FCCA 3797. In addition, orders were made that the proceeding be set down for trial on 29 May 2019, for mediation and regulating the matter for trial. As noted above, the respondent has filed a notice (and amended notice) of appeal from that decision.
Those matters notwithstanding, the respondent now pursues an Application in a Case filed on 24 December 2018 by which he seeks:
a)the review and stay of the order made on 10 December 2018;
b)dismissal of the initiating proceeding on the ground that “it is fundamentally fraudulent and an abuse of process without delay”;
c)the referral of the applicants to the appropriate Authority for providing intentionally false and misleading evidence and false statements; and
d)the setting aside of the consent parenting orders made on 15 October 2018 on the grounds of miscarriage of justice.
The respondent filed an affidavit, chronology and summary of argument and made oral submissions in support of his application.
The applicants also filed an affidavit and made submissions against the grant of the relief sought by the application. Those submissions were supported in large measure by the independent children’s lawyer. For completeness, I note that such relief as was sought by the applicants’ Response to the Application in a Case was not pressed.
Consideration
As observed in the course of the hearing, there may be real force in the submissions made by the respondent including that the first applicant has been largely absent from Australia for many years. The respondent’s evident frustration arises from circumstances in which (as he sees it), having purchased the Property A property and serviced the mortgage at all times together with assuming the vast majority of the financial and emotional care for the children, he now finds himself effectively evicted from that property by dent of a recent intervention order. His frustration is compounded by the circumstance (as he sees it), that the first applicant has installed her parents (and in particular, the second applicant) at that property and now claims a property settlement following the cessation of the relationship in 2009. However understandable that frustration may be, the immediate issue is whether the proceeding should be dismissed summarily.
Before addressing the substantive issue in the application, it is convenient to dispose of the other issues in the application, none of which were the subject of any detailed submission.
As concerns the other relief claimed in the Application in a Case, I do not regard it as open as a matter of power, or appropriate as a matter of discretion, to conduct a review of the orders that were made by me on 10 December 2018 while they are the subject of a pending appeal.
Nor is it appropriate before any final hearing has been conducted to consider and determine the contested issues of fact whether any party should be referred to any Authority upon the respondent’s submissions that any deponent has provided intentionally false and misleading evidence and false statements. Insofar as the respondent’s chronology states that he has acted on the supposed advice of a friend to report legal practitioners to the Legal Services Board, the adoption of that course is not a matter upon which I presently see any need to comment further save to recognise that the claims made in the proceeding must be determined upon their respective merits divorced from consideration of any misconduct by any legal practitioner. I have had no opportunity at this stage to examine whether there has been any misconduct in this case. If the so-called friend conceived that the reporting of a legal practitioner was a useful tactical ploy to achieve some collateral advantage in the proceeding, that is an issue which does not assist in the resolution of this application. Further, I record that the respondent, who has tertiary qualifications, was reminded of the desirability of obtaining specialist legal advice. However unsatisfactory he may have considered the services and advice of his earlier lawyers to have been, at the same time the respondent’s oral submissions recognised the skill and impartial manner in which counsel for the applicants presented his submissions. I agree. Although the respondent might again consider the availability of equally skilled counsel to furnish him with independent legal advice, this is only a matter about which he must made decisions.
For different reasons I also decline the application to set aside the parenting orders which were made by consent on 15 October 2018. The matter is listed for trial in May 2019, and it is for the court to determine what orders ought be made in the children’s best interests. Nothing on the present material has persuaded me that there has been such a wholesale change in circumstances that some new environment or risk has materialised which warrants the setting aside of those orders. It is no answer for the respondent to contend that his former lawyers were incompetent and that he should never have agreed in those orders. As counsel for the applicants observed, the parties signed minutes of those orders which were submitted to the court and made by consent.
The remaining question is whether there should be summary dismissal of the proceeding on the grounds of fraud. I have earlier observed and reiterate that allegations of fraud are serious matters which must be distinctly identified and clearly proved: [2018] FCCA 3797, [15]; s 140 Evidence Act 1995 (Cth). In particular, it is necessary to recognise that the nature of the claims made in the proceeding include parenting issues, that the subject matter of the proceeding thus involves children and that grave allegations including fraud, perjury and dishonesty are being made: pars 140(2)(a)-(c) Evidence Act 1995 (Cth).
The principles relating to summary judgment are well settled: see Spencer v The Commonwealth.[1] It is appropriate to consider those principles if only to emphasise that the caution which must be exercised when considering summary judgment is no less applicable upon the determination of a show cause hearing.
[1] (2010) 241 CLR 118.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. In Upaid Systems Ltd v Telstra Corporation Limited,[2] Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, stated a series of further propositions, including the following:
a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment.
The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited.[3]
[2] [2016] FCAFC 158, 122 IPR 190, [46]-[49].
[3][2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
Upon those principles it is necessary to consider the matters upon which the respondent relies in support of his application. The respondent was pressed to identify each of the matters on which he relied in support of his submissions that the applicants had engaged in fraud and in giving dishonest evidence. Many of those matters were recited in his affidavit sworn on 24 December 2018 and are dealt with below.
The first and apparently most galling matter arises from the first applicant’s affidavit sworn on 30 August 2018 in which she deposed at [8]:
During the relationship, the Respondent and I lived at . . . [the Property A Property].
This evidence was to be understood in the context of the first applicant’s other evidence at [6] and [9] that the parties commenced cohabitation in 2003 and that separation occurred in 2015. Counsel for the applicants frankly and properly conceded that the evidence in [8] had been unhappily worded. However, it was to be read with the first applicant’s other evidence at [14]-[19], the burden of which clearly confirms that the first applicant was resident in China, not Australia, for much of the period between 2008 – 2018. Contextually, the first applicant’s evidence at [8] may be understood as meaning that, while she was present in Australia, she had lived at the Property A property.
The respondent’s primary affidavit affirmed on 5 October 2018 addressed the matters in the first applicant’s affidavit sworn on 30 August 2018. The first applicant’s evidence at [8] set out above was addressed by the respondent in his affidavit at [46] where he stated that:
. . . although the Property A property is registered in Ms Yim’s name, Ms Yim never actually resided there until 29 August 2018. Ms Yim has remained living in China since 2007. The property was purchased by me. The children, and I have resided in the property since August 2013.
The respondent, both in his chronology of events and oral submissions, stated that the first applicant had lived in Australia for seven days in the past ten years. Contrastingly, the respondent exhibited a Movement Record obtained from the Department of Home Affairs which lent significant weight to his contention and supported a conclusion that the first applicant had travelled to and departed Australia as follows:
a)Arrive: … 2008 Depart: … 2008
b)Arrive: … 2008 Depart: … 2008
c)Arrive: … 2013 Depart: … 2013
d)Arrive: … 2013 Depart: … 2013
e)Arrive: … 2018 Depart: … 2018
f)Arrive: … 2018.
Thus is it apparent that the first applicant was absent from Australia, for the period 2009 – 2012 and again from 2014 – 2018 until she returned to Australia and promptly commenced this proceeding.
The respondent complains that the first applicant’s evidence as to the date on which the relationship ended is a lie and comprises one of the reasons why the application ought be dismissed. Whatever indignation the respondent may feel respecting the manner in which the first applicant expressed her evidence at [8], the whole of her affidavit made explicit that she had not been in Australia for much of the period in issue. As noted above, the respondent has had and taken the opportunity to respond to this issue which he has squarely addressed. I am not satisfied that the evidence given at [8], read in the context of the affidavit as a whole, was false or fraudulent in the sense contended for by the respondent. The respondent’s broad references to the offences of giving false testimony contrary to s 35(1) of the Crimes Act 1914 (Cth) and perjury contrary to s 314(1) of the Crimes Act 1958 (Vic) do not advance the contention that the court should conclude on evidence, which has not been tested by cross-examination, that the proceeding should be summarily dismissed.
The second matter arising from the first applicant’s principal affidavit in which she deposed at [9]:
Separation occurred in about mid-2015, when I told the Respondent that I wished to separate, However, I allowed the Respondent to return to Property A Property during the weekends solely for the purpose of spending time with the children.
By his principal affidavit, the respondent answered this evidence at [47], denying that the parties had separated in 2015 and maintaining that they had separated in 2009. Further, at [49], the respondent deposes that the first respondent returned to China against his wishes.
I cannot determine on a summary basis that the evidence of one witness or the other in relation to this issue is true or accurate. It follows that it remains an issue in contest which must be tested at trial. This will depend upon an evaluation of the whole of the documentary and oral evidence and the demeanour of the witnesses when giving evidence.
The third matter arising from the first applicant’s principal affidavit at [18] and [20] as follows:
In 2012, the Respondent’s business in China ceased operating. In the circumstance, the Respondent decided to return to Melbourne to focus on operating his business here. He also wished to take the two children with him to Melbourne. . . .
When the Respondent, two children, and my parents moved to Melbourne in 2013, the Respondent decided to live in an apartment at Property B as this was closer to his office. He enrolled the children into schools at Suburb A, and we purchased a property in that area. Since 2013, the children have been living with my parents at the Property A Property.
By his principal affidavit, the respondent answered this evidence at [52]-[54], deposing that he had not “returned to Melbourne” in 2012, that he had always lived in Melbourne since 1990, and that he had travelled to China for business purposes and so as to visit the children. In oral submissions the respondent was emphatic that the first applicant’s parents were not living at the Property A property with his permission and that he had sought to have them vacate the property. His chronology of events alludes to certain proceedings in the Victorian Civil Administrative and Tribunal (VCAT), apparently being pursued with a view to securing orders for the grandparents’ removal from that property. A difficulty which would seem to confront the respondent’s endeavours to secure that relief from VCAT is that the first applicant has become registered as proprietor of the Property A property. The respondent seems to consider that the relief which he claims might be more conveniently obtained in some other jurisdiction.
As to this third matter, I repeat the conclusions that I have expressed at [40] above. As presently advised, nothing in the first applicant’s evidence, which remains untested, rises to the level of fraud. Whether I remain of that view is a question that may arise at a later point.
The fourth matter arising from the first applicant’s principal affidavit in which she deposed at [23]:
Since they relocated to Melbourne in 2013, my father has been solely responsible for driving the children to and from school.
By his principal affidavit, the respondent answered this evidence at [57] stating that the second applicant (who is now aged 72-73 years) was in ill-health, spoke virtually no English and had no ability to understand road signs and was driving his vehicle without his authority. The respondent further deposed to circumstances which were suggestive of a highly conflictual relationship between the respondent and second applicant in which questions of alienation of the respondent loom large.
The respondent also tendered a copy of the Movement Record obtained from the Department of Home Affairs in relation to the movements of the second respondent. This evidence was confirmatory that the second applicant has not been present on many occasions in the period January 2014 – July 2018 and thus that he cannot, contrary to the applicants’ evidence have been solely responsible for driving the children to and from school in the period in question. Nonetheless, whether that evidence, when given, was intentionally false is a matter which I decline to decide until it has been tested at trial.
The fifth matter arises from the first applicant’s principal affidavit in which she deposed at [25] that the parties had gradually reduced their communications since he had relocated from China to Melbourne.
By his principal affidavit at [59], the respondent counters that he has had barely any communication with the first applicant since 2009 and deposed to a belief that the assertion that a text message had been exchanged in 2015 in relation to separation was completely false.
As to this fifth matter, I repeat the conclusions that I have expressed at [40] and [43] above. Again, I cannot determine on a summary basis that the evidence of one witness or the other in relation to this issue is such that the power to enter summary judgment is engaged.
In addition to the matters raised above, the respondent contends that “there is no family law matter”. He apparently makes this submission on the basis of his evidence that the de facto relationship came to an end in 2009 and not 2015 (as deposed to by the first applicant). However, the respondent further submitted that there was no family law matter in relation to either property or parenting on this same basis.
The respondent’s submissions recognised that by s 44(5) of the Act, a person seeking an adjustment of property interests in a de facto relationship is required to commence their application within two years after the end of their relationship. By s 44(5), that two year period is defined as being “the standard application period”. The Act confers power on the court to grant leave to a person to apply after the expiration of that standard application period. Sub-section 44(6) constrains the circumstances in which that power is engaged. It is unnecessary to examine the ambit of s 44(6) in further detail at this point. Suffice to say that the respondent drew attention to s 4AA of the Act which addresses the meaning of ‘de facto relationship’ and other related matters. In addition, I note that paras 90RD(2)(d)-(e) confer power to make a declaration as to when a de facto relationship has ‘ended’ and where each of the parties was ordinarily resident during that relationship.
The submission that the proceeding should be summarily dismissed because the de facto relationship ended in 2009 is misconceived. At best, the respondent’s evidence, if accepted, would form part of the matrix of facts which the court would be called upon to evaluate in deciding whether the first applicant ought be granted leave under s 44(6) to pursue an application notwithstanding the expiration of the standard application period: cf Cuan & Kostelac [2017] FamCAFC 188, [27]-[32] (Strickland, Aldridge and Loughnan JJ). I do not accept that the respondent’s version of events is the only version that may be adduced in evidence and, should the matter not be resolved, the court must determine on the balance of probabilities when it is that the parties’ de facto relationship did end. This will be a question of fact for trial.
I cannot conclude on the untested evidence whether separation occurred in 2009 or 2015 and would decline, as a matter of discretion, to foreclose the first applicant from pursuing her application for leave. Indeed, as counsel for the applicants submitted, the tension which is inherent in the application for summary dismissal of the initiating application is that it seemingly ignores the circumstance that there are not one but two properties which, as the respondent contends, he had purchased (post separation) but that he has registered in the name of the first applicant.
It is appropriate to observe that the legal issues raised in relation to the grant of leave under s 44(6) are somewhat complex and it will be for the first applicant to persuade the court, and the respondent to make relevant submissions as to whether leave ought to be granted.
To aid his argument, the respondent also referred to s 69ZN of the Act which provides certain principles which are to be applied for child related proceedings. Implicit in that submission was the acceptance that the Initiating Application, and indeed the Response, constitute a child-related proceeding: see ss 4, 69ZM. To benefit his application for the summary termination of the proceeding the respondent apparently invoked the principle that such proceedings are to be conducted without undue delay. To this may be added that the court is also bound to consider the needs of the children concerned, and to conduct the proceeding in a way that will safeguard both the children and parties from being subjected to family violence. As importantly, the court is to actively direct, control and manage the conduct of the proceeding: s.69ZN(1)-(7). It is not for the respondent to cherry pick one of those principles in aid of the application for summary dismissal or to ignore the other principles to which I have referred. As he might recognise, orders were made in December 2018 designed to bring the matter to an early determination as by the requirement for a family report, mediation and an early trial. I cannot conclude that the respondent ought be granted sole parenting responsibility on the untested evidence at this stage.
No consideration was apparently given to the circumstance that the respondent himself has sought orders by his Response for parenting orders. As counsel for the applicants correctly submitted, to the extent that the respondent sought the summary dismissal of the applicants’ Initiating Application, the court would remain seized of jurisdiction to hear and determine the parenting issues and would, in my view, be duty bound to do so: cf ss 60CA, 60CC.
Finally, the respondent relied upon a number of other authorities that I have considered but which I regard as having little bearing upon the immediate application:
a)in Grimshaw v Dunbar,[4] Jenkins LJ held that a party had a prima facie entitlement to have a case heard in his presence. The appeal arose from the circumstance that a tenant had paid an arrears of rent and was absent from a hearing as he had been told there was no necessity for him to do so;
b)in Re Brook and Delcomyn,[5] in which Earl CJ held it to be an indispensable requirement of justice that a tribunal called upon to decide a matter must hear both sides and give them an opportunity to put the evidence upon which the decision is to turn;
c)in Kioa v West,[6] Mason J referred to the settled common law doctrine that, in general, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he or she is entitled to know the case sought to be made against him. In this respect, the respondent also referred to Dr Bentley’s case;[7] Cooper v Board of Works for the Wandsworth District;[8] Hopkins v Smethwick Local Board of Health.[9]
The respondent’s list of authorities referred to other decisions which were not cited in his written argument but which I have also considered.
[4] [1953] 1 QB 408, 416.
[5] [1864] 143 ER 1184, 1190.
[6] (1985) 159 CLR 550, 582-583.
[7] [1723] 93 ER 698.
[8] (1963) 143 ER 414.
[9] (1890) 24 QBD 712.
The respondent’s reliance upon those authorities may be understood as being directed to the circumstances in which his earlier Application in a Case was dismissed. The reasons for judgment given in relation to that application explain why an order for its dismissal was made. The order so made was an interlocutory order. Accordingly, the order did not deprive the respondent of a right or interest or any legitimate expectation. The respondent was given an opportunity to put on evidence in relation to that application but the paucity of that evidence could not have supported an application for summary dismissal of the proceeding. While a further application of that kind could be made, I have explained at [27] why I consider it inappropriate to entertain the application while my earlier decision is the subject of an appeal. In any event, in dismissing the application, further orders were made for mediation, a family report and an early trial.
Although the respondent referred to the several authorities addressed at [59] above, my attention was not drawn to Allesch v Maunz.[10] The omission to draw my attention to that decision was somewhat curious for at least three reasons. First, inasmuch as the High Court considered the principles of natural justice applicable to a fair hearing in a family law setting, nearly all of the authorities relied upon by the respondent were cited in Allesch. Secondly, many of the respondent’s submissions appeared to have been copied directly from the judgment.[11] Thirdly, the appeal in Allesch was allowed. Viewing those matters collectively, the failure to refer to the High Court’s decision is curious if only that that decision might have been thought to provide the most instructive statement of principle for the determination of the application. In any event, my review of the principles stated in Allesch confirms my view that the fundamental principle is that a person is entitled to an opportunity to be heard.[12] Here, the respondent was afforded an opportunity to be heard on 18 February 2018. He was also afforded such an opportunity on 10 December 2018, but took that opportunity in the circumstances detailed in [2018] FCCA 3937 at [6]-[13].
[10] (2000) 203 CLR 172.
[11] See 203 CLR 172, [28] (Gaudron, McHugh, Gummow and Hayne JJ), [35]-[36] (Kirby J).
[12] cf Allesch 203 CLR 172, [38].
Conclusion
From my examination of the impugned parts of the affidavit which the respondent put in issue on this application, I recognise that he has raised serious questions as to the efficacy of some of the evidence which has been filed to this point. Serious issues have been raised including those related to when the parties’ de facto relationship ended, whether the first applicant ought be granted leave to commence this proceeding after the expiration of the standard application period, what orders ought be made in the children’s best interests, and who should have sole use and occupancy of the Property A property. However, for the reasons above and exercising the caution which is to be applied upon the grant of an application for summary dismissal of a proceeding, I cannot be satisfied that the applicants’ claims have no reasonable prospects of success. Whether they may do so and, if so, what relief may be appropriate in the exercise of discretion are matters which turn upon the applicable legal principles and the resolution of many disputed issues of fact. In those circumstances it must follow that the power to award summary dismissal of the application is not engaged.
If I am wrong in that conclusion I would, for substantially the same reasons, have refused summary dismissal as a matter of discretion.
I was informed that a family report has been prepared but not yet filed. The weight that attaches to that report will depend upon the opinion evidence which it expresses and may be tested by cross-examination at trial. For the avoidance of doubt, it does not follow that the opinion of an expert witness is to be given determinative significance in the resolution of a disputed question of fact: cfAmaca Pty Ltd vKing (2011) 35 VR 280, [83], [87]-[88] (Nettle, Ashley and Redlich, JJA).
I note that the parties have been ordered to attend mediation. It is important that they be properly prepared for and engage in that process without delay. In terms of orderly preparation, the trial date is imminent. The parties would be well advised to dedicate their resources to that preparation in order that the real issues in dispute can be narrowed and properly identified. They should not ignore the trial directions which were the subject of orders made on 10 December 2018.
As matters have progressed in the proceeding to this point, the parties seem incapable of resolving, or appear unwilling to resolve, the matter. Their affidavits and submissions are replete with attempts to characterise the nature of their conduct (or that of the other party) by the use of conclusory or argumentative statements rather than to focus on the provision of evidence as to matters of fact. In those circumstances, I have made directions which require them to prepare in electronic format a chronology of each of the events for which they will contend including those which are agreed and disagreed. The preparation of that chronology may assist the parties and the court in seeking to narrow the issues in dispute and identify where the parties have reached agreement. It is to be expected that the Independent Children’s Lawyer will take a proactive stance in the completion of that chronology.
The application must otherwise be dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 28 February 2019
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