Babington & Livesey (No 3)

[2024] FedCFamC1A 148

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Babington & Livesey (No 3) [2024] FedCFamC1A 148

Appeal from:

Livesey & Babington [2024] FedCFamC1F 483

Appeal number:

NAA 206 of 2024

File number:

BRC 13625 of 2019

Judgment of:

AUSTIN J

Date of judgment:

2 September 2024

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Summary dismissal – Consent orders – Where the wife appeals from a consent order providing for the husband to retain his superannuation entitlements – Where the wife was invited to show cause why the appeal should not be summarily dismissed – Where the grounds of appeal have no reasonable prospect of success – Appeal summarily dismissed.  

Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 75, 79, 81, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46

Cases cited:

Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162

Babington & Livesey (2023) 67 Fam LR 347; [2023] FedCFamC1A 139

Gilbert v Estate of Gilbert (1990) FLC 92-125; [1989] FamCA 95

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27

Livesey & Babington [2024] FedCFamC1F 483

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Number of paragraphs:

21

Date of hearing:

2 September 2024

Place:

Newcastle (via Microsoft Teams)

Counsel for the Appellant:

Litigant in person

Solicitor for the Respondent:

Giffiths Parry Lawyers

ORDERS

NAA 206 of 2024
BRC 13625 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BABINGTON

Appellant

AND:

MR LIVESEY

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	2 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The Amended Notice of Appeal filed on 29 August 2024 is summarily dismissed.

2.The respondent’s application for party/party costs of and incidental to the appeal is dismissed.

NOTATION:

A.The respondent does not require the publication of reasons for Order 2 hereof.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Babington & Livesey (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the summary dismissal of an appeal brought by the wife from property settlement orders made, with her consent, on 11 July 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 1).

   Background

2. Property settlement orders under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) were first made between the parties in March 2023, but the wife’s appeal from that judgment succeeded in August 2023 and the proceedings were remitted for re-hearing (Babington & Livesey (2023) 67 Fam LR 347).

3. The proceedings were listed for re-hearing before the primary judge on 10 July 2024, at which time both parties were legally represented. The wife applied for an adjournment of the trial, but her application was dismissed, for which ex tempore reasons were given (at [19]). The parties then asked for the trial be stood in the list to enable them to negotiate, which request was granted (at [20]). Several hours later, at 2.30 pm, the wife’s lawyers sought leave to withdraw their representation of the wife, which application was granted (at [20]–[21]).

4. The wife was unable to personally cross-examine the husband at trial due to the constraints of s 102NA of the Act. Without lawyers, she again applied for an adjournment of the trial, which application was refused and ex tempore reasons were given (at [23]). Duly observing the guidelines developed by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072, the primary judge then gave the wife an explanation as to how the trial would be conducted and stood the trial over until the next day for a fresh start (at [23]–[24]).

5. The following morning, the primary judge was presented by the parties with a minute of final orders, which they asked to be made with their consent (at [25]). The primary judge explained to the unrepresented wife how the orders could not be made unless his Honour was satisfied they were both just and equitable and finally ended their financial relationships, consonantly with the provisions of s 79 and s 81 of the Act (at [14] and [26]).

6. The primary judge was informed the orders would give the wife about 68 per cent of the parties’ property, if calculated on the pool of property for which the husband contended, or between 63 and 66 per cent, if calculated on the pool of property for which the wife contended (at [36]).

7. Recognising the evidence had not been tested and some factual disputes remained unresolved (at [12] and [28]), the primary judge estimated the parties’ contributions were approximately equal but found an adjustment would likely be made in the wife’s favour on account of factors prescribed by s 75(2) of the Act (at [37]). The primary judge was therefore satisfied the proposed orders were just and equitable and provided finality (at [45]). Once his Honour had again confirmed the wife supported the orders being made, the primary judge pronounced them and gave ex tempore reasons (Livesey & Babington [2024] FedCFamC1F 483).

8. Relevantly for present purposes, the orders provided for the husband to retain his superannuation entitlements (Order 2(d)). When property settlement orders were first made between the parties back in March 2023, their superannuation interests were equalised. Although those orders were later set aside on appeal, the superannuation splitting orders were already perfected (at [30]) and the transfer of superannuation money was never reversed. The parties expressly resisted the primary judge’s idea of notionally adding-back the adjustment of superannuation interests and the consent orders they proposed intentionally omitted any superannuation splitting orders (at [31], [32], [34] and [35]). At that point in time, the wife’s superannuation interests were slightly greater than the husband’s (at [33]).

9. The husband’s superannuation interest carries an ancillary life policy, under which he was still hoping to claim a capital payment on account of his terminal illness (at [39]–[41]). The wife was aware of the life policy, believed the husband would receive the insurance payment, but nonetheless chose to adhere to the consent orders providing for him to retain his superannuation interest and to resolve the dispute.

10. On 8 August 2024, the wife appealed from only Order 2(d), which provides for the husband to retain his superannuation interest.

11. The appeal was listed on 2 September 2024 to give the wife the chance to explain why the appeal should not be summarily dismissed, by which time she had amended her grounds of appeal.

    Disposition

12. The amended grounds of appeal are pleaded by the wife as follows:

    1.        The [primary judge] failed to afford the [wife] procedural fairness.

    2.The [primary judge] erred in finding the orders were just and equitable, particularly given the [wife] is to assume sole custody for the parties young children, on the evidence from November 2024.

    3.The [primary judge] took into account irrelevant matters.

    4.The [primary judge] erred in failing to properly consider the evidence and dates in respect to the prognosis of the Husband

    5.That the [primary judge] provided inadequate/insufficient reasons.

    6.The [primary judge] failed to properly consider that the Husband still currently holds $190,000 NET of the [wife’s] $271,000 superannuation, which was incorrectly transferred to the husband from the old orders of 31 March 2023. The old orders which effected this transfer which were successfully appealed by the [wife] through NAA86/2023 . Order 4 and 5 made by [a named judge] on 21 August 2023 in the Appeal court should have effected that superannuation transfer back to the [wife] in August 2023, however this was not completed.

    (As per the original)

13. The solitary appealed order (Order 2(d)) to which the above grounds are directed is an integral part of the suite of orders made with the parties’ consent to determine the financial cause between them.

14. An order made with the parties’ consent may still be appealed, though the nature of such an appeal is confined (Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77,839). When an appealed order is made consensually, the appeal can only raise grounds which impeach the anterior agreement reached between the parties, such as fraud or mistake for example, or which vitiate the order for want of jurisdiction or power (Harvey v Phillips (1956) 95 CLR 235 at 234–244; Allan & Ors & Allan & Ors (2014) FLC 93-606 at [59]–[65]). None of the wife’s grounds of appeal can be so characterised.

15. There could be no doubt the primary judge had both jurisdiction and power to make the property settlement orders under Pt VIII of the Act. The complaint of the denial of procedural fairness within Ground 1 does not amount to jurisdictional error.

16. The wife’s complaint of the denial of procedural fairness is not particularised by Ground 1, but was elaborated within her written submissions to comprise two distinct complaints: first, the grant of permission for the husband to rely upon an Amended Initiating Application and affidavit which were filed as late as the day before the trial was due to commence; and secondly, the refusal of her adjournment application on the first day of trial once she became self-represented. 

17. While the husband might have filed an Amended Initiating Application and an affidavit the day before the trial, no ruling was ever made about whether he was entitled to rely upon them. The wife’s lawyers did not apparently object to the husband’s reliance upon the amended form of relief or the affidavit whilst they remained engaged in the litigation. The wife said she did tell the primary judge of the husband’s failure to file the amended application and affidavit on time once she became self-represented, but she concedes no ruling was made by his Honour. By the time the trial was due to start at the beginning of the second day, the parties had settled the dispute and the husband’s late amended application and affidavit became irrelevant.

18. The primary judge heard the wife’s second application to adjourn the trial on the afternoon of the first day of trial, after her lawyers had withdrawn, but her application was dismissed on the merits. The primary judge gave ex tempore reasons for the dismissal decision. The obligation of procedural fairness was observed because the wife was heard about the asserted need for the adjournment. The decision to refuse her application was not itself a manifestation of procedural unfairness, otherwise no adjournment application could ever be dismissed because to do so would always amount to a denial of procedural fairness and the final result of the proceeding would then always be impugned. That would be absurd. The primary judge was obliged to hear and determine the adjournment application in a way which was fair to both parties.

19. Ground 1, as elaborated by the wife, cannot upset the appealed judgment for want of either jurisdiction or power.

20. None of the wife’s other grounds of appeal attack the validity of the parties’ anterior agreement for the orders to be made. Their consent to the orders must have been genuine. Any subsequent doubt or remorse entertained by the wife does not impeach the validity of her consent at the time she gave it.

21. The grounds of appeal have no reasonable prospect of success, in which event the appeal should be summarily dismissed (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), which order may be made by a single judge even though the appeal lies to the Full Court (s 32(3)(b) and s 32(5)).

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       2 September 2024