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Practice and procedure — Application for leave to Amend Form 1 — Whether
amended application would be ‘doomed to failure’ — Orders sought under Family
Law Act 1975 Pt VIIIAA — Family Law Rules 2004 R 11.10(a)(ii).
SIGNIFICANT JUDGMENTS Part 5
Hughes-Kempe v Kempe and Bocampe Pty Ltd & Ors [2005] FamCA 997, (2005)
FLC 93-237, (2005) 34 FamLR 266, 21 September 2005
Family Court of Australia before Morgan J
This was an application by the wife for leave to amend her application for property
orders and to join additional respondents. The proposed respondents and the husband
opposed the application on the ground that the application was doomed to failure.
The husband and wife married in 1983. At the time of the hearing they had two sons
aged 21 and 17. The assets to which the parties were directly entitled were relatively
modest, and the wife’s application was intended to enlarge the pool of matrimonial
assets. The proposed respondents were the controllers of several discretionary trusts
of which the husband was a beneficiary. The wife sought in her application that the
proposed respondents be ordered to use their powers to compel the trustee of the
individual trusts to make such capital distribution from the funds of the trust as the
court deemed appropriate. The wife sought orders under Pt VIIIAA of the Family Law Act
1975. As more than 28 days had passed since the final resolution date, the wife required
leave to amend her application (R 11.10(a)(ii) Family Law Rules).
Held: That the application be allowed.
1. The issues in deciding whether to permit an amendment were similar to those
pertaining to applications to summarily dismiss matters. Lindon v the Commonwealth
(No 2) (1996) 70 ALJR 54 and Pelerman v Pelerman (2000) FLC 93-037 followed, in
which the Courts have said that a case being weak and unlikely to succeed was not
alone sufficient to warrant termination of a matter, but there must be evidence that
a matter is ‘doomed to failure’ or ‘obviously futile’.
2. The order sought by the wife would override the existing principles of trusts law.
3. Section 90AA contradicts Pt VIIIAA of the Family Law Act 1975 as on the one hand it
is stated to be to allow the court to make an order under s 79 that alters the rights,
liabilities and property interests of third parties but on the other hand the power
granted must be in ‘relation to the property of a party to the marriage’.
4. The Explanatory Memorandum to the Bill containing the legislation appears to
contradict the plain words of s 90AE(2)(b).
5. Reference to extrinsic materials is not permitted for departure from the ordinary
meaning of the text of the enactment unless ‘either the meaning of the provision
to be construed is ambiguous or obscure or in its ordinary meaning leads to a result
that is manifestly absurd or unreasonable’ (Re Australian Federation of Construction
Contractors; Ex parte Billing (1986) 68 ALR 416 at 420).
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Family Court of Australia Annual Report 2005–2006