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Which case won?

casea
The case for the husband (father)
  • The primary judge said that my application had no reasonable prospect of success because I came to the court with “unclean hands” and therefore by law the court must refuse my application.
  • It is true that I agreed to transfer Property C to my daughter out of concern that it might be confiscated by the NSW Crimes Commission. However, although the trial judge pointed to “unclean hands” in her reasons for why she granted summary judgement, she never raised her concern about this in the hearing. So, I never had any notice of the judge’s concerns, nor was I given any opportunity to respond to them. I was therefore denied procedural fairness, which is an appealable error.
  • Further, since what my daughter told me about the NSW Crime Commission was untrue, I didn’t actually do anything illegal, and so my hands were “clean”. The judge was therefore wrong to conclude on this basis that I had no reasonable prospect of success.
  • Even if my hands were “unclean”, my daughter’s hands were also “unclean”.
  • In prison I was attacked and stabbed eight times, requiring hospitalisation and medical care. I told my daughter about this, and when she visited, I shared how the attack had left me feeling scared and anxious. She then took advantage of my mental state to pressure me into selling my property to her.
  • My daughter also lied to me, telling me that property B was in my name. When I lived there after prison, she asked me to pay rent towards the mortgage. I paid a total of $47,000 to her, thinking that I was paying off the mortgage on a property that I owned. Then after taking my money to pay off her mortgage, she evicted me.
  • Why should my daughter and ex-wife benefit from this duplicitousness, while I am left without a remedy?
  • Given that the trial judge denied me procedural fairness and wrongly concluded that my application had no reasonable prospect of success, the grant of summary judgement should be overturned.
caseb
The case for the daughter
  • My father’s application to set aside the consent orders has no reasonable prospect of success, because the court must refuse his application, since he comes “with unclean hands”.
  • My father says that agreeing to transfer Property C to me so that the NSW Crimes Commission would not confiscate the asset does not make his hands unclean because there was no crime and because I lied to him. This is immaterial. What matters is that my father’s motive was unclean. In his mind, he was entering into the transaction with a view to escaping the legal consequences of his illegal actions and of defrauding the State of New South Wales. Therefore, the court is precluded from exercising its discretion in his favour.
  • My father’s application also had no reasonable prospect of success on the evidence. As the trial judge found, my father’s evidence was woefully inadequate to the relevant matters that the court would need to consider in determining his application. There was no evidence provided as to how my father acquired Property C except as to the date of its acquisition, and there was no evidence as to any contributions to the property made by my father.
  • Since my father’s hands were unclean and his application to set the consent orders aside would not succeed on the evidence, the trial court’s grant of summary judgement must be upheld.

So, which case won?

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Case A Case B

Case A won. You were right!

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a70%
b30%

Expert commentary on the court's decision

Simone TimbsLawyer
“In the court’s view, a significant factor in the primary judge’s decision to grant summary judgement was her conclusion that the husband was attempting to profit by his own fraud. However, this was never raised as an issue in the proceedings and only mentioned for the first time in her reasons for judgement. Therefore, the husband had no opportunity to present material information or submissions and was denied procedural fairness.”
Family Court rules in favour of husband

In Ritter & Ritter and Anor [2020] FamCAFC 86, the Family Court of Australia found in favour of the husband, overturning the grant of summary dismissal to the wife and daughter.

The court also ordered the wife and daughter to pay the husband’s costs of the appeal in the sum of $19,030.67.

Section 45A of Family Law Act allows for summary dismissal if no reasonable prosect of success

Section 45A of the Family Law Act 1975 provides that the court can make an order against a party to dismiss their application if the court is satisfied that the party has no reasonable prospect of success.

Unclean hands doctrine misapplied by trial judge

In determining whether the husband had a reasonable prospect of success, the primary judge explored whether he came to court with “clean hands”, so as to entitle him to the exercise of the discretion of the court.

The appeals court noted that the maxim, “he who comes into equity must come with clean hands” is not of universal application and only applies where the improper conduct of the plaintiff has “an immediate and necessary relation to the equity sued for”.

On this basis, the court concluded that the principle had no place in the primary judge’s consideration of the issues to be determined by her.

Reliance on husband’s motive was denial of procedural fairness

As summarised by the appeals court, procedural fairness “requires that anything relied upon by a court in reaching its decision be made known to the parties… prior to the making of the decision, so that parties may oppose reliance upon it, produce evidence in relation to it and/or make submissions about it”.

In the court’s view, the husband had been denied procedural fairness by the primary judge.

This was because a significant factor in the primary judge’s decision to grant summary judgement was her conclusion that the husband was attempting to profit by his own fraud.

Her conclusion was never raised as an issue in the proceedings, only being mentioned for the first time in her reasons for judgement. This meant that the husband had been given no opportunity to present material information or submissions.

The court explained that while not every denial of procedural fairness will be sufficient to establish appealable error, critical consideration needs to be given to the consequence of the denial and whether it is material.

In this instance, the court found the denial to be material, as it struck at the validity and acceptability of the trial process and its outcome.

Reliance on insufficiency of evidence was also denial of procedural fairness

The adequacy of the husband’s evidence pertaining to his application to set aside the consent orders was not raised before the primary judge as an argument for granting summary judgement.

Yet, the primary judge pointed to the insufficiency of the husband’s evidence in her reasons for judgement.

The appeals court found that this too was a denial of procedural fairness which had a material effect on the primary judge’s orders.

Primary judge incorrectly applied legal principles pertaining to summary dismissal

In deciding whether the husband had a reasonable prospect of success, the primary judge was required to take the husband’s case “at its highest” unless his version was inherently incredible or unreliable.

The appeals court found that while the primary judge correctly stated this principle, she erred in how she applied it.

Since she did not find the husband’s account of the circumstances in which he signed over his interest in Property C to be inherently incredible or unreliable, there was no basis for not accepting his account.

Further, in the court’s view, very little evidence was required to prevent summary dismissal because “a miscarriage of justice occasioned by [the daughter’s] fraud cuts to the integrity of the judicial process”.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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