Bethke & Bethke
[2019] FamCAFC 106
•19 June 2019
FAMILY COURT OF AUSTRALIA
| BETHKE & BETHKE | [2019] FamCAFC 106 |
| FAMILY LAW – APPEAL – Dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant repeatedly failed to file a Notice of Address for Service and an Amended Notice of Appeal joining the trustees as parties to the proceedings – Where the matter was adjourned several times – Consideration of merits of substantive appeal – Where the appellant is an undischarged bankrupt– Whether the primary judge misinterpreted the law – Where the primary judge was well aware of requirements and in ordering the joinder of the Trustees – Whether the primary judge erred in considering ss 79(2) and 79(4) of the Family Law Act 1975 (Cth) in making the orders – Where consent orders were made between represented parties – Where the primary judge was entitled to conclude that it was appropriate to make the consent orders – Where there were no discrete reasons for judgment delivered – Where it was sufficient for the primary judge to demonstrate, in the transcript, that the orders consented to were just, equitable and appropriate – Where there is no apparent merit in any of the grounds of appeal – Appeal dismissed. |
| Bankruptcy Act 1966 (Cth) ss 58(1), 116 Family Law Act 1975 (Cth) ss 79, 97(3), 106B Family Law Rules 2004 (Cth) rr 1.04, 1.08, 22.45 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Connor & Cosgrove (2017) FLC 93‑769; [2017] FamCAFC 61 Crestin & Crestin (2008) FLC 93-368; [2008] FamCAFC 71 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Markes & Markes [2018] FamCAFC 222 |
| APPELLANT: | Mr Bethke |
| RESPONDENT: | Ms Bethke |
| FILE NUMBER: | PAC | 602 | of | 2016 |
| APPEAL NUMBER: | EAA | 127 | of | 2017 |
| DATE DELIVERED: | 19 June 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Kent & Watts JJ |
| HEARING DATE: | 25 February 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit of Court of Australia |
| LOWER COURT ORDERS DATE: | 23 November 2017 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Godden, Godden Lawyers |
Order made on 25 February 2019
Pursuant to r 22.45 of the Family Law Rules 2004 (Cth), the appeal against the orders of a judge of the Federal Circuit Court made on 23 November 2017 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bethke & Bethke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 127 of 2017
File Number: PAC 602 of 2016
| Mr Bethke |
Appellant
And
| Ms Bethke |
Respondent
REASONS FOR JUDGMENT
On 25 February 2019, we made the following order:
Pursuant to r 22.45 of the Family Law Rules 2004 (Cth), the appeal against the orders of a Judge of the Federal Circuit Court made on 23 November 2017 is dismissed.
We reserved our reasons for making that order and now provide them.
Background
The appellant husband (“the appellant”) was born in 1955 (63 years of age) and was at all relevant times an undischarged bankrupt. The respondent wife (“the respondent”) was born in 1966 (53 years of age). The parties commenced their relationship in early 2010, married in 2010 in Country B and commenced cohabitation on 5 December 2010 when the respondent arrived in Australia. On the appellant’s case, the parties separated in March 2016; on the respondent’s case they separated in September 2015. The parties divorced in 2017 and there are no children of the relationship.
In 2016, the appellant was convicted of fraud and sentenced to imprisonment for 18 months. On 5 September 2016, the appellant pleaded guilty to a further ten counts of fraud and was sentenced on 2 December 2016. The appellant is currently incarcerated at the Correctional Centre. He says that he commenced weekend leave on the weekend before the hearing before us and will be released in late 2019.
The respondent initiated proceedings in the Family Court of Australia on 11 February 2016, seeking that the appellant sign all necessary documents to release the Certificate of Title Folio Identifier …13 (property situated at C Street, Suburb E (“Suburb E property”)) to the respondent and that each party otherwise retain all assets held in their possession. On 9 December 2016, a Registrar made orders for substituted service and transferred the matter to the Federal Circuit Court of Australia with a note that the matter may proceed undefended on the next date as the appellant had not participated in the proceedings.
On 19 June 2017, an Application in a Case was filed by the appellant’s Trustees in Bankruptcy (“the Trustees”) seeking to be joined as the second and third respondents.
On 10 July 2017, the appellant’s solicitors filed a Notice of Address for Service and filed a Response in which the appellant sought that the Suburb E property be sold and the proceeds divided equally between the parties. On 11 July 2017, the primary judge made orders listing the matter for directions and ordering the Trustees to file and serve an affidavit setting out the evidence they relied upon in support of an application to be joined to the proceedings.
On 23 November 2017, the primary judge made orders (subsequently amended on a date unknown) which provided that:
a)The Trustees be joined as the second and third respondents pursuant to s 79(11) of the Family Law Act 1975 (Cth) (“the Act”);
b)The appellant’s oral application for leave pursuant to s 79(12) of the Act be dismissed;
c)The Deed of Mortgage and the mortgage on the Suburb E property, dated 10 December 2013, between the appellant and respondent be set aside pursuant to s 106B of the Act;
d)The registered mortgage be set aside pursuant to s 106B of the Act; and
e)A property settlement order requiring the respondent, within 42 days, to pay the Trustees the sum of $21,000 and for the Trustees to furnish the respondent with the Certificate of Title to the Suburb E property, with the parties otherwise to retain property and financial resources and provide indemnities.
No reasons for judgment were delivered. The respondent asserts the transcript constitutes the reasons.
The procedural history of the appeal
On 21 December 2017, the appellant filed a Notice of Appeal, which contained the following grounds of appeal:
1.Her Honour failed to consider whether joining the Appellent’s Trustees in Bankruptcy into the proceedings was in the best interests of the Appellent’s creditors.
Her Honour failed to consider whether an order joining the Appellent’s Trustee in Bankruptcy was equitable and just.
2.Her Honour failed to consider whether the orders made on 23 November 2017 were equitable.
3.Her Honour failed to onsider whether the orders made reflected a fair distribution of the assets of the marriage.
4. Her Honour failed to hand down a judgement.
5.Her Honour misinterpretered the law by acting on the basis that the Appellent’s Trustees in Bankruptcy had an absolute right to be joined as a party in the proceedings.
(As per original)
The Notice of Appeal did not name the Trustees as respondents to the appeal.
On 18 January 2018, the appellant filed a draft appeal index.
On 19 March 2018, the appellant’s solicitors filed a Notice of Ceasing to Act.
On 3 April 2018, the appellant did not appear by telephone for a procedural event before the Registrar. The Registrar wrote to the appellant at his current address, namely, care of Correctional Centre, noting there was no appearance for or on behalf of, the appellant at the procedural hearing and inquired as to whether the appellant intended to continue his appeal. The appellant was informed that he must file a Notice of Address for Service and an Amended Notice of Appeal joining the Trustees as parties to the proceedings. The Registrar informed the appellant that once he confirmed he intended to pursue the appeal the matter would be listed for a further procedural hearing but if he did not, he should complete and return the Notice of Discontinuance which was enclosed. The matter was adjourned until 7 May 2018.
We infer the appellant received the letter of 3 April 2018 because, on 7 May 2018, he participated via telephone in a procedural hearing conducted by the Registrar. He had not filed any further document. Before us, the appellant agreed that as at 7 May 2018, he understood the matter could not proceed until he filed an Amended Notice of Appeal joining his Trustees. The Registrar adjourned the matter to 21 May 2018.
On 9 May 2018, the Registrar wrote to the appellant care of his address, reiterating that he was required to file an Amended Notice of Appeal that joined the Trustees as respondents to the proceedings and why that was so. The letter enclosed a blank Notice of Address for Service and confirmed the date and time for the next procedural event on 21 May 2018.
The appellant did not file any further document before 21 May 2018.
On 8 August 2018, the Registrar conducted a hearing in chambers in absence of the parties and made orders requiring the appellant to file and serve an Amended Notice of Appeal joining the Trustees as parties to the appeal within 28 days. On 8 August 2018, the Registrar wrote to the appellant care of his current address and informed him that if he did not comply, the appeal would be listed before the Full Court for consideration as to whether it be dismissed under r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”). The Registrar explained the effect of that rule. The appellant agreed that in around September 2018 he received a notification to that effect.
On 3 September 2018, the appellant filed a Notice of Address for Service, listing Heffernan Legal as his solicitors.
On 9 October 2018, the Registrar sent an email to the appellant’s solicitors stating that if the Amended Notice of Appeal was not filed within seven days, consideration would be given to listing the matter before this Court for dismissal pursuant to r 22.45 of the Rules.
On 10 October 2018, the appellant’s solicitors sent an email to the Registrar informing her that the appellant had not provided any further instructions and they were not in a position to continue to act for the appellant.
On 19 December 2018, a Notice of Ceasing to Act was filed by Heffernan Legal. On the same day, the Registrar advised the appellant by letter care of his current address, that the appeal was to be listed on 25 February 2019 before this Court for consideration as to whether the appeal should be dismissed.
On 6 February 2019, the Court made orders requiring that Corrective Services make the appellant available for video link from prison and he appeared before us on 25 February 2019 via video link.
Should the appeal be dismissed for non-compliance?
Rule 22.45 of the Rules provides as follows:
Dismissal of appeal and applications for non-compliance or delay
(1) This rule applies if:
(a) the appeal is not taken to have been abandoned; and
(b) a party (the defaulting party) has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i) dismiss the appeal or application; or
(ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i) fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or application.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
(4)An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
In Jackamarra v Krakouer (1998) 195 CLR 516 at 528, Gummow & Hayne JJ said:
…when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. …
Applying the above principle, the Full Court in Connor & Cosgrove (2017) FLC 93‑769 (“Connor”) found at [25] that:
…All other things are not equal and it would represent an injustice to the mother to permit the appeal to continue in circumstances where the father would, in all likelihood, not file a summary of argument for at least a further three months…
In Connor, the Full Court cited (at [17]), with approval, McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
Though that case was concerned with time limits for commencing proceedings, the Full Court in Connor stated at [17] that it “nonetheless resonates on the question of delay and justice”.
Similarly, s 97(3) of the Act states:
In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.
Rule 1.04 expresses that the main purpose of the Rules is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Further, r 1.08 imposes a responsibility on all parties to “promote and achieve the main purpose” of the Rules by inter alia “ensuring readiness for court events” (r 1.08(c)), “complying with time limits” and “assisting the just, timely and cost-effective disposal of cases” (r 1.08 (e) and (g)).
As discussed by the Full Court in Connor at [19], r 22.45 of the Rules is mirrored in r 21(2)(b) of the Court Procedure Rules 2006 (ACT), considered by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where it was said, at [92], per Gummow, Hayne, Crennan, Kiefel & Bell JJ:
The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation”.
(Footnotes omitted)
Even allowing for the incarceration of the appellant, he has been given multiple opportunities to prosecute his appeal but has not. He has not filed an Amended Notice of Appeal joining his Trustees as directed by the Registrar since April 2018 (over ten months). Given the procedural history of this matter, the appellant has offered no adequate explanation for his failure to prosecute his appeal.
The respondent contends, and we accept, that any prejudice the appellant has suffered in not being able to obtain legal representation is far outweighed by the prejudice “that would be occasioned to the respondent wife of yet another adjournment of this appeals [sic], potentially for a number of months before a further listing is possible, and the consequent deprivation to the respondent of the benefits of the judgment she secured in November 2017”. The respondent also relies upon s 97(3) of the Act which requires the Court to endeavour to ensure that the proceedings are not protracted.
The Full Court in Connor stated (at [26]), “as to dismiss the appeal would extinguish the father’s right to appeal and is akin to summary dismissal, we propose to consider the merits of the appeal before following such a course”. Accordingly, we now consider, so far as we are able, the merits of the appeal.
Merits of the substantive appeal
Statutory provisions relevant to the appellant being an undischarged bankrupt
Given the appellant is an undischarged bankrupt, the following legislation is relevant to the substantive appeal.
Section 79(11) of the Act provides:
If:
(a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them; and
(b)either of the following subparagraphs apply to a party to the marriage:
(i) when the application was made, the party was a bankrupt;
(ii) after the application was made but before it is finally determined, the party became a bankrupt; and
(c)the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the bankruptcy trustee as a party to the proceedings.
(Emphasis added)
Sections 79(12) and (13) of the Act provide:
(12) If a bankruptcy trustee is a party to property settlement proceedings, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
(13) The court must not grant leave under subsection (12) unless the court is satisfied that there are exceptional circumstances.
Sections 106B(1), (1A), (3) and (4AA)(a) of the Act provide:
Transactions to defeat claims
(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
(1A) If:
(a) a party to a marriage, or a party to a de facto relationship, is a bankrupt; and
(b) the bankruptcy trustee is a party to proceedings under this Act;
the court may set aside or restrain the making of an instrument or disposition:
(c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the bankrupt; and
(d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
….
(3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
….
(4AA) An application may be made to the court for an order under this section by:
(a) a party to the proceedings; ….
Section 58(1) of the Bankruptcy Act 1966 (Cth) provides:
(1) Subject to this Act, where a debtor becomes a bankrupt:
(a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and
(b)after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.
Section 116 of the Bankruptcy Act 1966 (Cth) provides:
(1)Subject to this Act:
(a)all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge; and
(b)the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge; and
(c)property that is vested in the trustee of the bankrupt's estate by or under an order under section 139D or 139DA; and
(d)money that is paid to the trustee of the bankrupt's estate under an order under section 139E or 139EA; and
(e)money that is paid to the trustee of the bankrupt's estate under an order under paragraph 128K(1)(b); and
(f)money that is paid to the trustee of the bankrupt's estate under a section 139ZQ notice that relates to a transaction that is void against the trustee under section 128C; and
(g)money that is paid to the trustee of the bankrupt's estate under an order under section 139ZU;
is property divisible amongst the creditors of the bankrupt.
(2) Subsection (1) does not extend to the following property:
…
(q)any property that, under an order under Part VIII of the Family Law Act 1975, the trustee is required to transfer to the spouse, or a former spouse, of the bankrupt;
…
Grounds of appeal
The appellant’s Notice of Appeal is set out above and we shall discuss Grounds 1, 5, 2, 3, and 4 in that order.
Failure to consider whether joining the Trustees was in the creditor’s best interests or was equitable and just (Ground 1)
The circumstances in which the court must join the Trustee is mandated by s 79(11) of the Act if the following pre-conditions are met:
a)An application for a property settlement order has been filed;
b)A party to the marriage is bankrupt;
c)The appellant’s Trustees have made an application to be joined as a party to the proceedings; and
d)The court is satisfied that the interest of the bankrupt’s creditors may be affected by the making of a property settlement order.
If all of those conditions are satisfied, the court must join the Trustee as a party to the proceedings.
Section 79(11) of the Act does not require a consideration of the best interests of the appellant’s creditors nor does it require any consideration as to whether joining the appellant’s Trustees was equitable and just.
Ground 1 appears to have no merit.
Misinterpreting the law by acting on the basis that the Trustees had an absolute right to be joined as a party (Ground 5)
This ground is based upon the assertion that the primary judge made the order to join the Trustees as a party upon a misinterpretation that the Trustees had an absolute right to be joined as a party. They had that right if the preconditions contained in s 79(11) of the Act were satisfied. In this case, there had been an application for a property settlement order. That application was made by the respondent when the appellant was a bankrupt. On 19 June 2017, the Trustees filed an Application in a Case to be joined as parties to these proceedings.
The only remaining question was whether or not the provision of s 79(11)(d) of the Act was satisfied.
The primary judge was well aware of that requirement when she said to the lawyer for the respondent that she needed to be:
…. satisfied that the interest of the bankrupt’s creditors may be effected by the making of an order under this section, under section 79, in the proceedings on the basis that if the basis [sic] is successful in having the property interest adjusted, then his creditors are going to get more, so it has to affect the interest of the creditors.
(Transcript 23 November 2017, page 5, line 43 – 47)
The requirements in s 79(11)(d) will ordinarily be easily satisfied because it is axiomatic that:
a)The interests of the bankrupt’s creditors are affected if the size of the bankrupt’s estate is less than the total amount owed to the creditors;
b)The property of the bankrupt vests in the Trustee; and
c)That property can either be increased or decreased as a result of an adjustment to the property of either the applicant or the respondent, held jointly or severally by the making of a property settlement order.
In this case:
a)The Trustees’ assessment of the appellant’s direct financial contributions to the assets held jointly and severally by the parties was in the order of $21,000;
b)The appellant’s creditors significantly exceeded his possible claim under s 79 of the Act. The primary judge was told one of the appellant’s debts exceeded $500,000 (Transcript 23 November 2017, page 6, lines 26–27);
c)The appellant had forged a mortgage for $385,000 which was registered against the property in the respondent’s name. The respondent sought that the mortgage be set aside under s 106B of the Act in the proceedings for the property settlement order; and
d)If the respondent was successful in the proceedings, the appellant’s creditors in his bankruptcy were going to get less.
The primary judge, in this case, was correct in making an order joining the Trustees as parties to the proceedings having been satisfied that “the interests of the bankrupt creditors may be affected” and that the low bar set by s 79(11)(d) of the Act had been comfortably cleared in this case.
There appears to be no merit in Ground 5.
Failure to consider whether the orders were equitable and failure to consider whether the orders reflected a fair distribution of the assets (Grounds 2 and 3)
Grounds 2 and 3 can be dealt with together as they both assert the same error, namely, a failure by the primary judge to consider s 79(2) and (4) of the Act when making the orders.
The primary judge invited and received submissions in relation to matters relevant to s 79(4) of the Act prior to making the property settlement order.
The primary judge was informed that at the commencement of the relationship the respondent had $350,000 from an inheritance from her late husband and that the appellant had no assets.
In the proceedings before the primary judge, the appellant had claimed that there should be a 50/50 division of the equity in the Suburb E property because he had contributed half the purchase price. It was the Trustees’ view that it was unlikely that the appellant had contributed any significant money towards the acquisition of the property. The respondent conceded that the appellant may have provided to her an amount between $20,000 and $30,000 at the time of the acquisition of the property but she had paid back in the vicinity of $20,000 to him.
The discussion between the primary judge, the lawyers for the respondent and the Trustees immediately before the consent orders were made was as follows:
[SOLICITOR FOR THE RESPONDENT]: The consent position between the trustee is as set out in my client’s amended initiating application of 17 May 2017. The [respondent] says that the [appellant] made no contributions during their five-year relationship; the [appellant] was retired. He had no assets. He was an undischarged bankrupt at the commencement of the relationship. He has made the [respondent’s] life extremely difficult, on the [respondent’s] evidence, in terms of leaving her with substantial debt. She now has a CGT debt. She says she provided the [appellant] with money to pay his capital gains tax on the sale of another property. That was purely funded by way of a bank mortgage which was later sold. The [appellant] didn’t pay that. He has left the [respondent] with significant capital gains tax debt. The [respondent] said he has left her with $18,000 in unpaid motor tolls that she’s now fighting proceedings in the Local Court about. She says she wasn’t driving the car; she didn’t have a driver’s license at the time. He has left her with unpaid strata debts. Your Honour, the [appellant] has made no contributions other than to provide the [respondent] with some significant financial troubles as a result of - - -
HER HONOUR: So why is she paying the trustee $21,000?
[SOLICITOR FOR THE RESPONDENT]: It’s purely an economical exercise to get out of this course [sic], your Honour.
HER HONOUR: All right. And what does that 21,000 mean in terms of the pool?
[SOLICITOR FOR THE RESPONDENT]: In the terms of the pool, your Honour? I believe the last time I had a look at these in terms of the pool, it equated to approximately – it was under five percent, your Honour - - -
HER HONOUR: Okay.
[SOLICITOR FOR THE RESPONDENT]: - - - in terms of the contribution.
HER HONOUR: All right. And you say that that’s greater than any contribution that the [appellant] has made over the - - -
[SOLICITOR FOR THE RESPONDENT]: Any contribution made. In fact, it’s “dollar for dollar” contribution that the [appellant] has actually made minus the debt that’s – I mean – well, if we’re looking at the debt the [appellant] has left the [respondent ] in, he has actually made no contribution to this marriage other than to provide – than leave the [respondent] in further debt.
HER HONOUR: All right. And the trustee consents to these orders being made; is that right, [counsel for the Trustees]?
[COUNSEL FOR THE TRUSTEES]: Yes. That’s right, your Honour.
HER HONOUR: I am satisfied that the orders sought in the further amended initiating application and as consented to by the trustee in bankruptcy are just and equitable. And I therefore make orders in accordance with paragraphs 1 through to 7 of the further amended initiating application filed 18 May 2017; the solicitor for the applicant - - -
[SOLICITOR FOR THE RESPONDENT]: Thank you, your Honour.
HER HONOUR: - - - to provide to the court a typed script of those orders within seven days directly to my associate; I otherwise remove all outstanding issues from the list of cases awaiting finalisation.
(Transcript, 23 November 2017, page 13, line 36 to page 14, line 43)
Where a consent order is made between parties who are represented, the extent of the inquiry is circumscribed (see Harris v Caladine (1991) 172 CLR 84 (per Mason CJ and Deane J at 90 and Dawson J at 113).
The primary judge was entitled to conclude that it was appropriate to make the consent orders.
There appears to be no merit in Grounds 2 and 3.
Failure to hand down a judgment (Ground 4)
As indicated above, when the primary judge made orders dated 23 November 2017, no discrete reasons for judgment were delivered. The respondent asserts the transcript constitutes the reasons.
The orders were made at the invitation of the Trustees and the respondent. Both parties were represented.
The circumstances where a primary judge can provide adequate reasons by relying upon statements in a transcript are limited.
The Full Court in Crestin & Crestin (2008) FLC 93-368 allowed an appeal when no reasons for judgment were delivered and stated that, “the transcript [did] not adequately reveal [the primary judge’s] reasoning process” (at [37]).
In Markes & Markes [2018] FamCAFC 222, Kent J considered whether or not a transcript of those proceedings was adequate to stand as reasons and in that case concluded that it was not because “the transcript fails to reveal any reasoning process of the trial judge underpinning the conclusion” (at [37]).
We are of the view, however, that in circumstances where legally represented parties ask the court to make a property settlement order by consent, it is sufficient for a primary judge to demonstrate on the transcript that a consideration has been undertaken as to whether or not the proposed consent property settlement order is just and equitable and appropriate and, in this case, also whether or not an ancillary order under s 106B may be made to set aside an instrument likely to defeat the property settlement order.
In this case, the transcript was sufficient to demonstrate that the primary judge considered the agreed facts as presented and based upon that presentation, reached the conclusion which she announced, namely, that the orders proposed were just and equitable.
There appears to be no merit in Ground 4.
Appeal against other orders
Appeal against the dismissal of the oral application for leave pursuant to s 79(12) of the Act
Although the Notice of Appeal is against all orders made by the primary judge, no ground of appeal seems relevant to the appeal against the order dismissing the oral application for leave pursuant to s 79(12) of the Act.
In the proceedings before the primary judge, the bankrupt appellant was legally represented. The matter proceeded on the basis that the appellant’s legal representative was asked to make submissions as to what exceptional circumstances existed pursuant to s 79(13), to enable leave to be granted pursuant to s 79(12), to entitle the bankrupt to make submissions to the court in connection with the vested bankruptcy property. The appellant’s lawyer asserted that the court would not be informed about the indirect contributions the appellant had made and that the appellant’s fraud in respect of the mortgage was “controversial”. He did not explain what he meant by “controversial”. The appellant’s lawyer made no submissions but relied upon the affidavit filed by the appellant. Nothing in that affidavit went to the issue of the mortgage. The appellant’s lawyer otherwise conceded that the appellant had pleaded guilty to fraud in relation to the mortgage and was serving a gaol sentence in respect of that offence.
The primary judge found that she was not satisfied that leave should be granted to the appellant to make any submissions pursuant to s 79(12) of the Act. Her Honour’s reasons for doing so arise plainly from the transcript, namely, that the lawyer for the appellant advanced no reason why there was any exceptional circumstance on the material filed by the appellant that would allow leave to be granted.
There is no apparent basis for an appeal against the order dismissing the oral application for leave pursuant to s 79(12) of the Act.
Appeal against s 106B orders
Again, the Notice of Appeal does not include any ground of appeal relevant to the appeal against the s 106B orders. It was an agreed fact that the appellant had forged the respondent’s signature on a mortgage which had been registered on the Suburb E property for an amount of $385,000 (Transcript, 23 November 2017, page 8, line 8 and page 13, line 4). Consequently, the consent orders to set aside the Deed of Mortgage and the mortgage are unremarkable.
There is no apparent basis for an appeal against the s 106B orders.
Conclusion in relation to grounds of appeal
We conclude that there is no apparent merit in any of the appellant’s grounds of appeal.
Given that the appellant has failed to prosecute his appeal, the appeal against the orders of the primary judge made on 23 November 2017 is dismissed.
Costs
The respondent did not seek an order for costs against the appellant.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Kent & Watts JJ) delivered on 19 June 2019.
Associate:
Date: 19 June 2019
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