Broughton & Broughton
[2014] FamCAFC 206
•23 October 2014 15 October 2014
FAMILY COURT OF AUSTRALIA
| BROUGHTON & BROUGHTON | [2014] FamCAFC 206 |
FAMILY LAW – APPEAL – Application in an appeal for extension of time – where the husband took the right approach by applying at first instance to set aside orders made in his absence – where this did not preclude the husband from appealing the orders made in his absence – where the principles in Gallo v Dawson (1990) 93 ALR 479 were applied to grant the husband’s application for extension of time to appeal the orders made in his absence.
FAMILY LAW – APPEAL – where the trial judge did not consider the provisions of section 79 of the Family Law Act 1975 (Cth) when making orders on an undefended basis – where the trial judge did not provide reasons for the orders – where the appeal was conceded by the respondent - appeal allowed.
| Family Law Act 1975 (Cth) Federal Circuit Court Rules 2001 (Cth), r 16.05 Federal Court Rules 2011(Cth), r 39.05 |
| Allesch v Maunz (2000) 203 CLR 172 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 Gallo v Dawson (1990) 93 ALR 479 Harris v Caladine (1991) 172 CLR 84 Taylor v Taylor (1979) 143 CLR 1 Wilkes and Wilkes (1981) FLC 91-060 |
| APPELLANT: | Mr Broughton |
| RESPONDENT: | Ms Broughton |
| FILE NUMBER: | CAC | 1600 | of | 2012 |
| APPEAL NUMBERS: | EA EA | 51 75 | Of Of | 2014 2014 |
DATE DELIVERED: DATE ORDERS MADE: | 23 October 2014 15 October 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 15 October 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 6 June 2013 |
| FIRST APPEAL LOWER COURT MNC: | [2014] FCCA 667 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Howard |
| SOLICITOR FOR THE RESPONDENT: | KJB Law |
Orders made 15 October 2014
The husband be granted an extension of time to file an appeal against the orders made by Judge Brewster on 6 June 2013 and for that purpose the draft Notice of Appeal received by the Eastern Appeal Registry on 2 July 2014 be treated as the Notice of Appeal (EA75/2014) and as filed on this day.
The appeal (EA75/2014) against orders made by Judge Brewster of
6 June 2013 be listed for hearing today.The appeal (EA75/2014) against the orders made by Judge Brewster on
6 June 2013 be allowed.It is noted in connection with this order that this appeal was conceded by the respondent wife.
The orders made by Judge Brewster on 6 June 2013 be set aside.
The wife’s application for property settlement orders (filed on
17 October 2012) be remitted to the Federal Circuit Court for rehearing
(by a judge other than Judge Turner) as expeditiously as possible.The appeal (EA51/2014) against the order made by Judge Turner on
10 April 2014 is dismissed.It is noted in connection with this order that this appeal was not heard on its merits.
There be no order for costs in relation to appeal No. EA51/2014, appeal
No. EA75/2014 or the applications listed for hearing before this court this day.The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to appeal
No. EA75/2014.The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the her in relation to appeal No. EA75/2014.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent wife in relation to the new trial granted by these orders.
It is noted in connection with these orders: that the applications of the wife (filed 20 August 2014) seeking summary dismissal of the appeal by the husband against the order of Judge Turner made on 10 April 2014, or alternatively an order that the husband provide security for the wife’s costs in relation to the appeal, were not pursued.
ORDER MADE IN CHAMBERS
(2A)That the appeal books filed in relation to appeal No. EA 51 of 2014 be treated as the appeal books for appeal No. EA 75 of 2014.
It is noted that this order was made in chambers after the hearing on
15 October 2014
IT IS NOTED that publication of this judgment by this Court under the pseudonym Broughton & Broughton has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 51 of 2014; EA 75 of 2014
File Number: CAC 1600 of 2012
| Mr Broughton |
Appellant
and
| Ms Broughton |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Full Court for hearing on 15 October 2015 were three applications in an appeal:
·an application filed 27 June 2014 by Mr Broughton (“the husband”) in which he sought leave to appeal out of time property settlement orders made in the Federal Circuit Court by Judge Brewster on 6 June 2013 (EA 75 of 2014);
·an application filed 20 August 2014 by Ms Broughton (“the wife”) in which she sought that an appeal by the husband against an order made in the Federal Circuit Court by Judge Turner on 10 April 2014 be summarily dismissed, or alternatively, that the husband be ordered to provide security for her costs of that appeal (EA15 of 2014).
After hearing submissions in relation to the first mentioned of these applications, we granted the husband an extension of time to appeal against the orders of Judge Brewster made on 6 June 2013. After we did so, counsel for the wife, having obtained further instructions, conceded the appeal against the orders of 6 June 2013. We then made orders allowing that appeal, setting aside the orders of 6 June 2013, and remitting the wife’s original application for property settlement orders for re-hearing by the Federal Circuit Court.
As will be understood from the history of this matter, which we will shortly outline, it was necessary as a consequence of the setting aside of the orders of Judge Brewster of 6 June 2013, for us to dismiss the husband’s appeal against the orders made by Judge Turner on 10 April 2013. The dismissal of that appeal made it unnecessary for the wife to pursue her application for the summary dismissal of that appeal, or alternatively, for an order for security of her costs of that appeal.
We indicated that we would in due course provide reasons for the orders made on 15 October 2014. These are the reasons.
Background to the applications listed for hearing on
15 October 2014
On 17 October 2012 the wife had filed an application against the husband for property settlement. That application apparently first came before Judge Brewster on 3 December 2012 when the wife was represented and the husband appeared on his own behalf. Orders were made for the filing of documents and a conciliation conference.
The matter came back before Judge Brewster on 7 May 2013 when both parties were represented. The solicitor for the wife informed the court that a conciliation conference had been held, but had not been successful, and that the husband had not filed any documents.
His Honour then adjourned the matter to 6 June 2013 with a warning to the husband that if he had not filed his material by that date, the matter would “proceed as an undefended suit”.
When the matter came before his Honour on 6 June 2013, the solicitor for the wife appeared, but there was no appearance by or on behalf of the husband.
His Honour therefore indicated that the matter would proceed on an undefended basis.
The solicitor for the wife, Ms Maclean, provided his Honour with a minute of orders that provided for what she called “the mechanics for the final orders”, being the sale of the parties’ home with a division of the proceeds on a “50/50” basis, although she then indicated that she had prepared an amended application. The transcript continues:
Ms Maclean: Your Honour, we’ve prepared an amended initiating application, essentially ---
His Honour: Well, you’ve just handed me a minute of the orders you seek.
Ms Maclean: But in terms of serving the other party, and having ---
His Honour: Well, you’re going to have to serve something. Why don’t we just make these orders ---
Ms Maclean: If your Honour is so minded to make those orders, I would ---
His Honour: --direct they be served on the husband, and then he has got
X time to request the matter to be relisted to seek to have those orders varied or set aside. Might get him into – galvanise him into action.(Transcript 6 June 2013 p.3)
The orders then made by his Honour provided: for the former matrimonial home to be sold and the net proceeds divided equally between the parties; for the husband to retain the parties’ business and indemnify the wife in respect of its liabilities; for each party to retain their own superannuation entitlements; for the wife to receive certain household items; and for the husband to pay the wife’s costs of the proceedings.
Importantly, his Honour’s orders also provided that they be served on the husband, and for the husband to be at liberty to apply within 28 days to have the orders varied or set aside.
On 3 July 2013 the husband filed an application seeking that the orders of 6 June 2013 be set aside.
That application was heard by Judge Turner on 21 March 2014, with the wife being represented by counsel and the husband representing himself.
On 10 April 2014 Judge Turner published reasons for judgment in which she concluded that the husband had failed to provide a reasonable explanation as to why he had failed to attend court on 6 June 2013; that a finding could not be made that there may be available to the husband material arguments that may reasonably result in different orders being made to those made on 6 June 2013; and that there would be prejudice to the wife if the orders of 6 June 2013 were set aside. Accordingly, her Honour dismissed the husband’s application to set aside those orders.
On 29 April 2014 the husband filed a Notice of Appeal against Judge Turner’s order.
On 18 June 2014 Judge Hughes delivered reasons for judgment and made orders dismissing an application by the husband for a stay of execution of the orders of 6 June 2013 pending the hearing of the appeal, and ordering the husband to pay the wife’s costs of the proceedings, assessed at $20,767.30.
On 27 June 2014 the husband filed an application in an appeal in which he sought an extension of time in which to file an appeal against the orders made by Judge Brewster on 6 June 2013.
That was the first of the applications before this Court on 15 October 2014.
On 20 August 2014 the wife filed an application in an appeal (supported by an affidavit filed the same day) in which she sought that:
a)the appeal against the orders of 10 April 2014 be summarily dismissed; or
b)alternatively, that the husband pay $20,000 as security for the wife’s costs of the appeal.
That was the second application, or more precisely, second and third applications, before us on 15 October 2014.
The application for an extension of time to appeal against the orders of Judge Brewster made on 6 June 2013
This application by the husband was supported by a draft Notice of Appeal and an affidavit which explained only the reasons for the husband’s non-appearance on 6 June 2013, but not the reasons for his delay in seeking to file a Notice of Appeal against those orders until 27 June 2014.
The application was opposed by the wife on three bases:
1. that the husband provided no explanation for his delay in appealing the orders of Judge Brewster within the prescribed time;
2. that the grounds of appeal contained in the draft Notice of Appeal do not reveal an arguable case on appeal; and
3. that the appropriate process in which to challenge Judge Brewster’s orders was not through appeal, but by recourse to r 16.05 of the Federal Circuit Court Rules 2001 (“FCCR”).
It is convenient to consider the third point first. Rule 16.05 FCCR provides:
16.05(1)The Court may vary or set aside its judgment or order before it has been entered.
16.05(2)The Court may vary or set aside its judgment or order after it has been entered if:
(a)The order is made in the absence of a party; or
…
It was contended for the wife that the application to vary or discharge made to Judge Turner was, in this matter, the same process of enquiry as that which would be embarked on in an appeal and the husband having been unsuccessful in having the orders discharged ought not be permitted to appeal out of time.
For the reasons which follow we did not agree that the power of the court to vary or discharge orders made in the absence of a party is consonant with the powers exercised in an appeal.
Before discussing r 16.05, we draw attention to the fact that Judge Brewster gave the husband liberty to apply to vary or set aside the orders which had been made in his absence because they had been made in his absence. Irrespective of the provisions of r 16.05 that was certainly the appropriate course for his Honour to adopt given the provisions of s 79A of the Family Law Act 1975 (Cth) (“the Act”) and the decisions of the High Court in Allesch v Maunz (2000) 203 CLR 172 and Taylor v Taylor (1979) 143 CLR 1. (See also
the decision of the Full Court of this Court in Wilkes and Wilkes (1981) FLC 91-060.)
Rule 16.05(2) of the FCCR is in virtually identical terms to r 39.05 of the Federal Court Rules 2011 (“the FCR”); both of which are rules concerned with the power to vary or set aside in certain circumstances a judgment or order after it has been entered. Under both rules the circumstances in which the power may be exercised include where a judgment or order was “made in the absence of a party”.
As Gordon J explained in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [15], an application under r 39.05 to vary, set aside or discharge an order is not an appeal.
At a relatively early point in this Court’s history, it was made clear by the
Full Court in Wilkes that where a party seeks to set aside orders made in his or her absence, the proper course is to apply at first instance for an order for a rehearing rather than have the matter dealt with by way of an appeal. However, there is nothing in that decision to suggest that the ability to apply at first instance for a rehearing means that there is no right of appeal against an order made in the absence of that party. In this regard it must be remembered that the right to appeal orders such as those made by Judge Brewster on 6 June 2013 is a right conferred by statute (s 94AAA of the Act), although that right is, of course, subject to the appeal being filed within the prescribed time.
Given that the proper course for a party seeking to set aside orders made in his or her absence is by an application and then a hearing, at first instance, it will not be unusual for such a party, if unsuccessful at first instance, to have to seek an extension of time to appeal the original orders. This is the position in which the husband in this case found himself.
An application to extend time to appeal is governed by the principles established by cases such as Gallo v Dawson (1990) 93 ALR 479. Those principles raise for consideration (inter alia) the remaining two of the three matters which were relied on by counsel for the wife in opposition to the husband’s application for an extension of time to appeal Judge Brewster’s orders of 6 June 2013. Those two matters were the reasons for the delay in appealing those orders and whether the proposed grounds of appeal revealed an arguable case on appeal.
In a case such as the present where a person, who is seeking an extension of time to appeal orders made in his or her absence, has followed the proper procedure of initially applying at first instance to set aside those orders, rather than immediately filing an appeal against them (with its attendant costs and deployment of court resources), that person will clearly have a valid excuse for his or her delay in seeking to institute the appeal. Thus, in the present case we were satisfied that the husband had an explanation, which was entirely reasonable, for his delay in seeking to appeal Judge Brewster’s orders.
The real question on this application for an extension of time to appeal therefore became the husband’s prospects of success on the proposed appeal.
The grounds of appeal contained in the husband’s Notice of Appeal were not in conventional form, which is perhaps unsurprising given that he apparently drew the Notice of Appeal himself. Significantly, however, the husband did in his draft grounds set out the provisions of s 79(1) and (4) and of s 75(2) of the Act, which contain certain of the matters which the court must take into account when making orders for property settlement, and he included statements seeking to apply those provisions to the facts of this case.
This attempt by the husband to draft grounds of appeal drew attention to the fact that, as the transcript of the hearing on 6 June 2013 revealed, his Honour apparently did not, when he made the property settlement orders that day, turn his mind to the provisions of s 79 of the Act or to their application to the evidence before him in this case (albeit only from the wife). Nor did his Honour provide any reasons for his orders.
There can be no issue, but that when a court makes orders under s 79 of the Act, even on an undefended basis, it must be seen to have satisfied itself under s 79(2) that the orders are “just and equitable”, and to have had regard to the relevant provisions of s 79(4) (cf. Harris v Caladine (1991) 172 CLR 84). Given that no reasons were provided by his Honour for his orders, and given also the limited content of the transcript of the hearing on 6 June 2013, the husband’s appeal would, in our view, have to succeed.
Notwithstanding the prejudice to the wife of the husband’s appeal being permitted to proceed, we granted the husband leave to appeal out of time the orders made by Judge Brewster on 6 June 2013.
As mentioned at the outset of these reasons, after we made the order granting the husband an extension of time to appeal the orders of 6 June 2013, the wife’s counsel advised us that he had received instructions to concede the appeal and to seek the setting aside of the orders appealed and an order for a new trial. This was clearly a sensible, and indeed correct, course. It will be clear from what we have said earlier that the appeal had to succeed and that there has to be a rehearing of the wife’s application for property settlement.
Other matters
Again as mentioned earlier in these reasons, once the orders of Judge Brewster of 6 June 2013 were set aside, Judge Turner’s order of 10 April 2014 would be of no effect. Thus, there would be no purpose in the husband’s appeal against that order, and that appeal was accordingly dismissed without hearing.
Following the hearing on 15 October 2014, it occurred to us that in our orders granting the husband the extension of time to appeal the orders of 6 June 2013, and listing that appeal before us for hearing, we should also have included an order providing that the appeal books, which had been filed by the husband for the appeal (EA51 of 2014) against Judge Turner’s order of 10 April 2014, should be treated as the appeal books for the appeal (EA 75 of 2014) against the orders of Judge Brewster of 6 June 2013. This is for the reason that we would not have been able to satisfy ourselves that there should be an extension of time to appeal the orders of 6 June 2013, nor that that appeal should succeed for the reasons that it did, without the material in the appeal books filed for the appeal against the orders of 10 April 2014. We therefore made such a further order in chambers, and it is included in the orders on the cover page of these reasons and in the engrossed orders.
Costs
Given what transpired before us on 15 October 2014, it was clearly appropriate that the general rule contained in s 117(1) of the Act should apply, and that each party should bear his or her own costs of the applications and appeals ultimately before us that day.
It was also appropriate that both parties should receive costs certificates in respect of the successful appeal given the basis on which it had to succeed, being clearly an error of law. It was also appropriate that the wife should receive a certificate for the rehearing of her property settlement application given she has already had to bear the costs of the first hearing (at which the husband did not appear).
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Ainslie-Wallace & Ryan JJ) delivered on 23 October 2014.
Associate:
Date: 23 October 2014
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