Cachia v Cachia

[1999] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S130 of 1998

B e t w e e n -

SALV LAURENCE CACHIA

Applicant

and

CATHERINE MARY CACHIA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MAY 1999, AT 2.31 PM

Copyright in the High Court of Australia

MR S.L. CACHIA:   I am the applicant, your Honour.

MR M.R. ERRINGTON:   I appear with my learned friend, MR T.R. OSTINI-FITZGERALD for the respondent.  (instructed by Champion Partners, Solicitors)

GUMMOW J:   Yes.

MR CACHIA:   Your Honours, the judgments of the Family Court, the Full Court of the Family Court, raises some very weighty questions of law which I have listed at application book, page 99.

GUMMOW J:   Yes.

MR CACHIA:   If I then could draw your attention to application book page 101, the last paragraph, when I refer to the Registrar’s order for maintenance I say that the Registrar in fact refused to hear evidence before making that order under the emergency provisions of the Family Law Act.  Now, this emergency order that the Registrar made was in regard of a woman that had in her possession $600,000 and income on that $600,000 was substantial, certainly in excess of what the order for the maintenance was.

GUMMOW J:   Now, you are appealing, however, from the Full Court of the Family Court, are you not?

MR CACHIA:   Yes, I did.

GUMMOW J:   And their judgment of 20 August, is that the one, 1998?

MR CACHIA:   Yes, your Honour.

GUMMOW J:   There is a legal question involved there to some degree, but in relation to this voidable marriages question.  What do you say to the proposition that that does not really arise because under the Family Law Act the Parliament has said that the courts can make property orders in relation to marriages, including in the concept, voidable marriage?

MR CACHIA:   Does the Family Court Act actually say it in those words, your Honour?

GUMMOW J:   I am looking at page 31 of the application book and page 32; paragraphs 35 through to 40 on pages 31 and 32 of the application book.

MR CACHIA:   What is the application book page, your Honour?

GUMMOW J:   Pages 31 and 32.

MR CACHIA:   That matter was considered by me in my application, your Honour.  I will try to find it for you.  At page 106 of the application book.

GUMMOW J:   You will see at page 23 of the application book, paragraph 15 - just take a moment to find that, Mr Cachia - the court sets out the definition of “marriage” and the relevant part of the Family Law Act and at line 30, you see that, they say:

The question of the validity of this marriage would thus appear to have little, if any, impact upon jurisdictional questions in respect of maintenance and property settlement.

MR CACHIA:   That is what the Full Court said, but ‑ ‑ ‑

GUMMOW J:   Yes, but why are they wrong or why is there a real question that they might be wrong?

MR CACHIA:   They are wrong because, as I argued in my summary of argument, foreign marriages are recognised by the law of Australia.  The law of Australia, in fact, accepts the Hague Convention with regard to marriages and the Hague Convention goes on to say that the laws applicable to foreign marriages are the local courts, the local laws where the marriage was celebrated.  If I could take you to my arguments, they are too long to read to you, it would take a lot of time, but that is the sum total of my argument, what I said in my summary of argument in this regard.  I think it is a very complex question, it is not easily argued because one would have to refer back and forth from very complex provisions in the Act.  But, on consideration, I think there is in fact substantive argument there which says that the local laws of the place where the marriage was celebrated are the laws which should be applied with regard to a particular marriage.

GUMMOW J:   That is only if there is a law of the Australian Parliament on the point which picks that up.  The relevant law here is Part VIII of the Family Law Act dealing with spousal maintenance and property arrangements and that defines marriage in this particular way.

MR CACHIA:   Your Honour, I beg to disagree but I cannot argue the point offhand because it is a very complex point.  If I could ask the Court to consider my arguments ‑ ‑ ‑

GUMMOW J:   We have done that.  That is why we are asking you what we are asking you now.

MR CACHIA:   I cannot add to what I have said.  I have nothing to add to what I have said there.  I have, in fact, referred to some precedents in Australia that are applicable.  I have referred to particular passages of the law of Australia and the Family Law Act, as well as other ratified law like the Hague Convention.  Because there is no High Court precedents on this question I could not say to you, this is what the High Court has said in the past because the High Court has never considered this question.  It is a question that would affect a great many people in Australia because of the large migrant population that there is.  Just because it has never come to the fore, it does not mean that it would not come to the fore in the future if there is guidelines about it from the High Court.

May I continue?  I was referring to the registrar’s order for maintenance, your Honours. 

GUMMOW J:   Ordinarily what happens in a registrar ordering maintenance would not attract a grant of special leave here.  It would be sorted out in the Family Court.

MR CACHIA:   Certainly.  But it was reviewed by the primary judge.  The primary judge gave no reasons on that matter, to which is another omission.

GUMMOW J:   But we are hearing an application for leave from the Full Court of the Family Court which gave a very lengthy judgment.

MR CACHIA:   And then that matter went on to appeal to the Full Court and the Full Court decided, as you are aware, because it is in the judgment, and I think it is unsatisfactory that they dismissed my appeal in that regard – in regard to the order for maintenance, when it should not have been dismissed, because there was no need to make initially the order for the maintenance, given that the respondent in the Full Court had property to the value of some $600,000, plus income.  Around the time that this order was made, this respondent had in fact sold some shares which she had and received dividends.  She had already left the matrimonial house and she had received dividends on those shares that she had, on that property.

Therefore, the registrar was way out, first, in making the order under the emergency provisions; secondly, in making without hearing of evidence; and then, of course, it went on review.  The primary judge did not deal adequately with it.  He did not give any reasons.  We do not know what passed through his mind at all.  Then it went on appeal to the Full Court.  The Full Court dismissed my appeal on it.  I think that is wrong.  I do not think that is correct, that decision of the Full Court. 

Even in regard to the judgment which the trial judge gave on the matter of the application for a decree of nullity is unsatisfactory because he did not publish reasons why he decided to dismiss the application for a decree of nullity.

GUMMOW J:   The Full Court dealt with that and they said whatever unease they might have felt about what happened, there were these iron clad legal considerations that dictated a result.

MR CACHIA:   But it still remains that if the Full Court is correct, then the primary judge was wrong.

GUMMOW J:   No, it does not.  That does not follow.

MR CACHIA:   The primary judge said the law in England applied.

GUMMOW J:   One can reach a result for various reasons, some of which are good, some of which are bad.

MR CACHIA:   Say the outcome of that application was going to be the same but the trial judge has said that the law of England applied, that is a major item, that is a major point, and the Full Court reversed him and said no, the law of England does not apply.  Either one or the other is wrong.  I think on that particular point the primary judge was correct but he dismissed ‑ ‑ ‑

GUMMOW J:   The primary judge did not have his attention drawn to the relevant definition.  I do not know how it happened, but it seems to have happened.

MR CACHIA:   Your Honour, at page 103 of my summary of argument, at items f), g) and h), I highlighted some of the mistakes of the trial judge.  At item h) I said, “dealt negligently with the evidence.”  In fact, he was grossly negligent in dealing with the evidence.  One of his major spears on which he said that he prefers the evidence of the woman was that he said I concocted the idea of applying for a decree of nullity.  He said I concocted that idea around September 1997, and yet as early as December 1996 I had already forecast and said that I was going to make an application for a decree of nullity.  He overlooked 12 different texts in six different documents.  I think that is the extent of his negligent review of the evidence. 

Then, what does he do?  He gave a discretionary judgment.  The Full Court agreed with that.  In fact, the Full Court asserted that it was so.  How can a discretionary judgment apply when the primary judge was so negligent in reviewing the evidence?  The Full Court then said, and I drew your attention to that at page 104, paragraph 3, that the credibility of the parties was “not ultimately germane to the outcome of the proceedings”.  Your Honours, that is anathema to its finding that the judgment in the proceedings was discretionary.  A discretionary judgment is very dependent on the credibility of the parties.  If the trial judge makes a mistake in attributing credibility to one or other of the parties, then his discretionary judgment must, of necessity, be vitiated, it would have no validity, and the Full Court could have decided the issue for itself.

In my submissions to the Full Court I went into great detail and provided documentary proof to it regarding the credibility of the parties.  Yet it chose not to decide the issue.  It did not decide the issue on the credibility.  It was duty bound to do so because without deciding the issue of credibility, the discretionary judgment would not stand. 

GUMMOW J:   Now, you realise the significance of this light that has gone on?

MR CACHIA:   No, I do not.

GUMMOW J:   It means there are only five more minutes.

MR CACHIA:   Then, your Honours, I will turn to bring to your attention the arbitrary time limits that the judge had imposed.  The Full Court agreed with that.  Then I would say with regard to the application for nullity of marriage is that the local laws certainly would apply in the case where a marriage was void, if there was duress or if there was some other reason, like impotence, as are present in this case, then of course invalidity of the marriage does apply.  It is, in my submission, one reason why the property division would then be affected by the invalidity of the marriage or the nullity of the marriage. 

At page 108 of the application book I listed the errors made by the primary judge.  I listed 27 items of error by the trial judge and those are errors, your Honours, as found by the Full Court, not errors in my opinion, errors made by the trial judge as found by the Full Court.  How could then it be said that his discretionary judgment can stand and the Full Court would not interfere with it?   The Full Court also said that the ownership of shares does not afford ownership of those shares.  How could that be?  I would involve judicial knowledge on that score.  If a person owns shares held in

his or her names, that that person is in possession of them.  They can deal with them as they please from the moment that they are in their names.

Then, in a major mistake by the Full Court, the Full Court said that I did not object to the time limits imposed by the trial judge.  It said, in effect, that no objection ‑ ‑ ‑

GUMMOW J:   That sort of question is simply not the sort of question that gets into this Court, Mr Cachia.

MR CACHIA:   Is it not a matter of principle, your Honour?  The question of no objection to rulings equal waiver, it is a very important question ‑ ‑ ‑

GUMMOW J:   If every question of that nature that arose in litigation throughout the Commonwealth came here, the Court would never adjourn.

MR CACHIA:   Then there was the trial judge’s refusal to hear a motion.  He failed to allow me to put a motion.

GUMMOW J:   Yes, I understand your complaint about that.

MR CACHIA:   The motion, your Honour, was ‑ ‑ ‑

GUMMOW J:   The red light has gone on, Mr Cachia.

MR CACHIA:   Could I just say this?

GUMMOW J:   Yes.

MR CACHIA:   The motion is in the supplementary material book at the last page.

GUMMOW J:   We have seen that.  Thank you.  There is no need to call on you, Mr Errington.

If leave were granted, an appeal from the Full Court of the Family Court to this Court would turn substantially upon the correctness of the construction placed by the Full Court upon various provisions of the Family Law Act 1975, in particular the definition of “marriage” in section 71 to include “void marriage”. There are insufficient prospects of success upon these matters to warrant a grant of special leave. Accordingly, special leave is refused.

MR ERRINGTON:   We ask for costs, if your Honour pleases.

GUMMOW J:   I do not think you can resist that, Mr Cachia.

MR CACHIA:   There should be no order as to costs, your Honour.

GUMMOW J:   Why?

MR CACHIA:   This application was not frivolous.  This application ‑ ‑ ‑

GUMMOW J:   Many applications are not frivolous but they do not succeed.

MR CACHIA:   It was right and proper to bring it.  Therefore the pool of the parties should bear the costs of this application and there should be no orders.  I think in Mylott v Mylott, your Honour, the High Court did not award court costs in an application – maybe even it was an appeal, I think.

GUMMOW J:   What do you say about that, Mr Errington?

MR ERRINGTON:   It is an appropriate case for costs to be awarded because this is an application under the Judiciary Act.  Costs are usually awarded if it is just an entirely meritless application and my client ‑ ‑ ‑

GUMMOW J:   Whether it was meritless or not, it is unsuccessful.

MR ERRINGTON:  Yes.

GUMMOW J:   Costs ordinarily follow the event.

Special leave is refused with costs.

AT 2.55 PM THE MATTER WAS CONCLUDED