Wife Seeks Summary Dismissal of Husband's Application
Harford & Spalding [2022] FedCFamC1A 78 (26 May 2022)
The appellant wife seeks leave to appeal and, if granted, to appeal from an order made by the primary judge dismissing her application for summary dismissal of the respondent husband’s Initiating Application. The husband opposes both the grant of leave and the appeal.
Facts:
The parties commenced cohabitation in 1988, were married in 1990 and separated in February 2017, albeit remaining under the one roof until December 2019. Following an unsuccessful mediation conducted on 23 March 2020, the wife commenced property settlement proceedings on 15 May 2020. However thereafter the parties continued to engage in settlement negotiations which, on 28 May 2020, resulted in them signing proposed property settlement consent orders, entering into a Binding Financial Agreement (“BFA”) and the husband signing a release. The consent orders provided for the wife to pay the sum of $700,000 to the husband, and for a superannuation split of $205,000 from the wife to the husband, but otherwise each party would retain the assets held in their name or possession.
The BFA essentially provided for mutual releases in respect of claims for spousal maintenance. On 29 May 2020, Loughnan J made orders (“the 2020 orders”) in accordance with the proposed consent orders signed by the parties, after hearing submissions from each party’s counsel and the tender of a joint balance sheet. On 27 November 2020, the husband filed an Initiating Application (subsequently amended on 11 March 2021) seeking to set aside or vary the 2020 orders pursuant to s 79A of the Act and to set aside the BFA pursuant to s 90K(1) of the Act on a number of different bases.
On 22 January 2021, the wife filed an application seeking to summarily dismiss the husband’s Initiating Application, which was heard on 23 June 2021. On 27 August 2021, the primary judge dismissed the wife’s application for summary dismissal for reasons then delivered.
Issues:
I. Whether or not the primary judge erred in not having regard to the relevant transcript.
II. Whether or not the primary judge’s reasons for judgment were adequate.
Applicable law:
Analysis:
The primary judge recorded that her Honour “[did] not have the transcript of the proceedings before [Loughnan J] before [her] as the husband did not rely upon this transcript” and hence the only possible inference is that the primary judge therefore had no regard to it.
However, the wife’s counsel tendered the relevant transcript before her Honour without objection, and both counsel for the wife and husband thereafter made submissions on its contents. Whilst the wife acknowledged that the usual approach adopted in such proceedings for summary dismissal required the Court to only have regard to the husband’s material, she argued that did not preclude the Court from having regard to other material which is properly before it, and her Honour seemed to accept this argument.
Conclusion:
The appeal is allowed. The orders of the primary judge made 27 August 2021 is set aside. The matter is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge. Within 28 days of these orders, the husband is to pay the wife’s costs of the appeal in the sum of $38,342.90.
