Ancer & Ancer
[2024] FedCFamC1A 90
•29 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ancer & Ancer [2024] FedCFamC1A 90
Appeal from: Ancer & Ancer [2023] FCWA 298 Appeal number: NAA 367 of 2023 File number: 263 of 2022 Judgment of: AUSTIN, SUTHERLAND & SCHONELL JJ Date of judgment: 29 May 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant wife seeks leave to appeal from procedural orders – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – No substantial injustice established if leave is refused –Where the orders the applicant seeks to appeal are procedural and do not amount to a judgment from which an appeal validly lies – Leave to appeal refused – Application in an Appeal to adduce further evidence dismissed – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26 and 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Chard & Ye [2018] FamCAFC 117
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Falydn & Badenoch [2022] FedCFamC1A 170
Hullet v Benton (2022) 64 Fam LR 568; [2022] FedCFamC1A 13
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 27 Date of hearing: 21 May 2024 Place: Heard in Perth, delivered in Sydney Counsel for the Applicant: Mr Looney KC with Ms Murphy Solicitor for the Applicant: KDK Family Law Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Lavan ORDERS
NAA 367 of 2023
263 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ANCER
Applicant
AND: MR ANCER
Respondent
ORDER MADE BY:
AUSTIN, SUTHERLAND & SCHONELL JJ
DATE OF ORDER:
29 MAY 2024
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The Application in an Appeal filed 6 May 2024 is dismissed.
3.The Amended Notice of Appeal filed 8 March 2024 is dismissed.
4.The applicant pay the respondent’s costs assessed in the sum of $25,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ancer & Ancer has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, SUTHERLAND & SCHONELL JJ
This is an appeal, subject to the grant of leave to bring it, from the judgment of a Judge of the Family Court of Western Australia. It is common ground that the orders the subject of the appeal are procedural in nature.
For reasons that will become apparent, we dismiss the application for leave to appeal.
BACKGROUND
The parties are involved in contested financial proceedings. An issue in those proceedings is the value of the interests of the respondent in a commercial enterprise. It is conceded that the respondent has ultimate control of the enterprise through a series of corporate interests.
A single expert has been appointed to value the interests of the parties in the enterprise. An issue of confidentiality arose, and a subset of that issue was the consideration of the necessity to sign a Cyber Security Questionnaire (“CSQ”) given assertions by the respondent of commercial sensitivity and in particular, risks in relation to cyber security.
The applicant filed an Application in a Case seeking disclosure from the respondent of various documents by electronic means. The respondent sought to provide documents subject to being satisfied as to the security of the documents and in particular, raised issues about the necessity for the signing of a CSQ by the applicant, her lawyers, and advisors. In that respect, the primary judge observed in his reasons for judgment at [22]:
In relation to the application of the [applicant], I consider the major issue between the parties is about whether the [respondent] should be entitled to withhold electronic communication from the [applicant] until the cybersecurity questionnaire is completed and any recommendations that may be made, implemented.
Further, at [23] of the primary judge’s reasons for judgment, his Honour says:
… I think the [respondent] should be entitled to insist upon the [applicant] completing the cybersecurity questionnaire before electronic disclosure is provided.
Following submissions, the primary judge made orders as sought by the respondent but noted in his reasons that the parties could re-list the matter “as necessary for appropriate disclosure to be given in due course if that is necessary” (reasons for judgment at [32]).
PROPOSED GROUNDS OF APPEAL
The Amended Notice of Appeal filed 8 March 2024 addresses Orders 3, 4 and 5 made by the primary judge. While there is only one ground of appeal, it comprises seven sub-parts. The sub-parts broadly contend error by inadequacy of reasons and error of law.
In further aid of the appeal, the applicant filed an Application in an Appeal on 6 May 2024 seeking to adduce further evidence.
The applicant recognises she requires leave to appeal. Leave will only be granted, assuming error is demonstrated, if the applicant establishes that the primary judge’s determination is attended by sufficient doubt and that substantial injustice would flow if leave were refused (Medlow & Medlow (2016) FLC 93-692).
The orders the subject of challenge required the applicant to select one of three named IT consultants to complete a CSQ in relation to the cyber security of the applicant, her lawyers, and advisors (Order 3), upon receipt of a completed CSQ the respondent would provide electronic copies of the documents (Order 4) and pending receipt of the completed CSQ the respondent would make available for inspection only a hard copy of the disclosure documents (Order 5).
The applicant’s Summary of Argument filed 11 March 2024 contends at paragraph 10:
The orders determined the basis on which disclosure should be given by the [respondent] in the proceedings, and in particular requiring the completion of cyber security questionnaires by the [applicant] and all of her advisors before copies of the [respondent’s] disclosure documents (whether in physical or electronic form) would be provided, something not mandated by any legislative provision, Rule of Court, other law or even a practice direction.
King’s Counsel for the applicant further submitted that the orders, while procedural, are not a ruling on a point of law, evidence, or procedure but an order that binds the parties, is coercive, enforceable and delegates impermissibly to the respondent the right to decide whether the applicant has complied with the requirements of the CSQ. As such, King’s Counsel for the applicant submits that while procedural, it is an appealable judgment.
Senior Counsel for the respondent submitted that the orders are entirely procedural, do not transgress upon the rights of the applicant, do not constitute a delegation of authority, and remain open to reconsideration by the Court in the event of disputation. Axiomatically, he submits they do not constitute a judgment capable of being appealed.
In expanding on his written Summary of Argument filed 8 April 2024, Senior Counsel for the respondent submitted that Order 3 is no more than a procedural order for the appointment of experts. Order 5, properly characterised, requires the applicant and her advisors to merely complete a CSQ and upon its return, the respondent is obliged to provide hard copies of the disclosure documents to the applicant. Upon completion of the CSQ and meeting the Essential Criteria in the CSQ, then by Order 4, the respondent is obliged to provide electronic copies. In either instance, there is no delegation to the respondent of the right to determine compliance with the terms of the CSQ.
Senior Counsel for the respondent submits that the orders by their terms and a reading of the reasons as a whole make apparent that in the event that the respondent is not satisfied that there has been compliance with the terms of the CSQ, then it falls to him to move the Court. Senior Counsel submitted during the course of the appeal that any form of completion of the CSQ would invoke provision of hard copies by the respondent.
CONCLUSION
The issue raised by the appeal is resolved by answering the initial question: ‘is it an appealable judgment’. If it is not, then the application for leave to appeal will be refused. If it is, then it is necessary to address the Application in an Appeal, the Amended Notice of Appeal and, assuming error is established, whether leave should be granted.
Section 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides that an appeal only arises from a judgment. Section 7(1) of the FCFCOA Act defines a judgment as “a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of the Family Law Act 1975”.
The High Court has consistently maintained that a judgment is a judicial act that is decisive of the rights of a party (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 at 14 (Mason J), 18 (Jacobs J), 21 (Murphy J) and 26 (Aickin J) (“Yule”); Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64).
The orders which are the subject of the appeal are directed to the method by which the disclosure obligations of the parties would be regularised. An order such as Order 3 requiring a party to nominate one of a number of experts is entirely procedural and is not a judgment amenable to appeal (Falydn & Badenoch [2022] FedCFamC1A 170 at [17]). Likewise Orders 4 and 5 providing a mechanism for the provision of documents whether in hard form and/or electronic is similarly procedural and not a judgment amenable to appeal. None of the orders either individually or in combination affected or extinguished any asserted legal right of the applicant (Yule at 14, 18, 21 and 26).
The primary judge recognises that issues may arise which require the matter to be re-listed. Such re-listing implicitly recognises possible variation, amendment, or further order for the purpose of giving effect to the orders without recourse to appeal (Chard & Ye [2018] FamCAFC 117 at [13]). Such an uncontroversial approach is entirely inconsistent with a final determination of substantive rights.
Mere characterisation as an order did not change the fundamental character of what was required. Describing it as an order did not, without more, change it from the procedural to the determination of a substantive right, nor elevate the determination to one of a judgment amenable to appeal (Hullet v Benton (2022) 64 Fam LR 568 at [16]).
As it is not a judgment that can be the subject of an appeal, consideration of the contentions in the Application in an Appeal as to further evidence or the grounds in the Amended Notice of Appeal and expanded on in the Summary of Argument are otiose.
Even if we were wrong and the determination constituted an appealable judgment, and assuming error was established, no substantive injustice is occasioned by the refusal to grant leave. The orders as conceded by Senior Counsel for the respondent compel the respondent upon receipt of a completed CSQ to make available hard copies of the disclosure documents. This appeal should never have been brought.
Leave will be refused, and the Amended Notice of Appeal filed 8 March 2024 and the Application in an Appeal filed 6 May 2024 will be dismissed.
COSTS
King’s Counsel for the applicant conceded that if the appeal were dismissed, an order for costs on a party and party basis could not be resisted and that the Full Court could undertake its own assessment of a proper amount by way of costs.
We are satisfied having regard to the Schedule of Costs filed and consistent with the overarching purpose of family law practice and procedure as set out in s 67 of the FCFCOA Act that it is proper to fix costs payable by the applicant in the sum of $25,000, such sum being fixed pursuant to the power reposing in r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Sutherland & Schonell. Associate:
Dated: 29 May 2024
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