Chaban & Chaban
[2022] FedCFamC1A 162
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Chaban & Chaban [2022] FedCFamC1A 162
Appeal from: Chaban & Chaban [2022] FCWAM 114 Appeal number(s): NAA 133 of 2022 File number(s): PTW 5237 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Property – Appeal from the Magistrates Court of Western Australia – Where final property and superannuation splitting consent orders were made by a Judge of the Family Court of Western Australia in 2021 – Where the judge failed to determine the value of the parties’ self-managed superannuation fund – Where the respondent filed an application seeking an enforcement of the superannuation splitting order – Where the applicant presses that the original consent orders were null and void due to the failure to value the superannuation fund and cannot be enforced by the order of the magistrate – Where both parties agree that the Family Court of Western Australia is a superior court of record – Orders by a superior court of record remain valid unless and until they are set aside on appeal or quashed by way of prerogative writ – Application for leave to appeal dismissed – Applicant to pay costs of respondent in fixed sum amount. Legislation: Family Law Act 1975 (Cth) ss 90XT, 117(2A)(e)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)
Cases cited: Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Moy & Pao [2022] FedCFamC1A 17
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Number of paragraphs: 21 Date of hearing: 19 September 2022 Place: Perth (via videolink), delivered in Sydney Counsel for the Applicant: Mr Hedges SC Solicitor for the Applicant: O’Sullivan Davies Counsel for the Respondent: Mr Rynne Solicitor for the Respondent: KDK Legal ORDERS
NAA 133 of 2022
PTW 5237 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CHABAN
Applicant
AND: MS CHABAN
Respondent
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
11 october 2022
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.Within 28 days of the date of these orders, the applicant is to pay the respondent’s costs in the fixed sum of $3,029.18.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Chaban & Chaban has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
Introduction
While focused upon a decision of a magistrate of the Family Court of Western Australia dated 10 June 2022, this appeal is essentially a collateral challenge to orders made by a judge of the Family Court of Western Australia on 20 April 2021. It is contended that, in making a superannuation splitting order on 20 April 2021, the judge failed to determine the value of the parties’ self-managed superannuation fund which, it was contended, was a precondition to those orders being validly made even though the orders reflected the parties’ consent position. It is contended by the applicant husband, Mr Chaban (“the applicant”), that the error on the part of the judge who made the 20 April 2021 orders is such that the orders were null and void and therefore incapable of enforcement by the challenged order made by the magistrate on 10 June 2022.
In circumstances where both parties acknowledged that the Family Court of Western Australia, constituted by a single judge, is a superior court of record, the appeal must fail. This is because orders made by a superior court of record remain valid unless and until they are set aside on appeal or quashed by way of prerogative writ.
Background
By consent orders made by a judge of the Family Court of Western Australia on 20 April 2021, the parties agreed to finalise their dispute in respect to property settlement following the breakdown of their relationship. Relevantly, the subject consent orders included Orders 13, 14, 15 and 16 (“the relevant orders”), which are as follows:
13.Pursuant to paragraph 90XT(4) of the Act a base amount be allocated to the Wife from the Husband's interest in the Chaban Superannuation Fund ("the Fund") with that base amount to be calculated as follows:
(a)Half of the combined value of the Wife and Husband's member entitlements in the Fund as at the date of the Orders; less
(b)The value of the Wife's member entitlements as at the date of the Orders.
14.Pursuant to paragraph 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the Husband's interest in the Fund:
(a)The Wife is entitled to be paid the amount (if any) calculated in accordance with the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount allocated in the previous order; and
(b)There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.
15.The previous order has effect from the operative time, being 7 days after the publication of these orders to the parties or their solicitors.
16.The parties as in their capacities as directors of A Pty Ltd, the Trustee of the Fund, (“the Trustee”) do all acts and things and sign all such documents as may be necessary, so that, in accordance with the obligations set out under the Act and the Regulations, the Trustee can calculate the entitlement of, and make payment to, the Wife in accordance with these orders.
The parties have been unable to agree to the valuation of their self-managed superannuation fund in accordance with Order 16 of the relevant orders.
As a result, by way of an Application in a Proceeding filed on 17 January 2022, the wife, Ms Chaban (“the respondent”) sought orders for the enforcement of the relevant orders.
On 10 June 2022, the magistrate made orders that are the subject of this appeal. The applicant seeks to appeal only Orders 2, 3, 5 and 7. Those orders are as follows:
2.Within 7 days of the date of publication of these orders, the parties do all things and sign all documents necessary and provide all of the necessary authorisations to any financial institution that hold monies on behalf of the Chaban Superannuation Fund to implement the superannuation splitting orders as set out at paragraphs 13-18 (inclusive) of the orders made (by consent) on 20 April 2021 (“the superannuation splitting orders”).
3.In the event that the Respondent Husband, MR CHABAN, does not comply with the previous paragraph, pursuant to s 106A of the Family Law Act 1975 (Cth) the Applicant be appointed to sign all of the documents necessary to implement the superannuation orders on behalf of the Respondent.
…
5.Within 7 days, the Respondent pay to the Applicant the sum of $2,500 in contribution to her costs associated with the enforcement of the superannuation orders.
…
7.All extant applications and responses otherwise be and are hereby dismissed.
Grounds of appeal
Over objection, the applicant was granted leave to rely upon a Further Further Amended Notice of Appeal which was to be filed in the Court on the date of the appeal hearing, being 19 September 2022. The substantive amendment between that document and the applicant’s Further Amended Notice of Appeal is that the subsequent document included an application for leave to appeal. The one substantive ground of appeal, however, remains the same as the earlier document. That ground is set out at Part E of the document and is as follows:
1.Her Honour erred in purporting to enforce Orders 13, 14, 15 and 16 of the orders pronounced by [the judge who made the consent orders] on 20 April 2021 because [the judge who made the consent orders] had no power to make the orders without first making a determination of the amount in relation to the interest as mandatorily prescribed by sections 90XT(2) and 90XT(4), with the outcome that there is no splitting order capable of enforcement.
Orders sought in the appeal
The orders sought in the appeal are set out as amended in Part F of the Further Further Amended Notice of Appeal and are as follows:
1. Paragraphs 2, 3 and 7 of the Orders dated 10 June 2022 be set aside.
2.The matter be listed for Directions before a Magistrate on a date to be allocated by the Court.
4. Such further Orders as this Honourable Court considers appropriate.
Short form reasons
In circumstances where no question of general principle is raised and where I am satisfied the appeal is without merit, it is appropriate that I give short form reasons pursuant to s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Principles
As noted by the Full Court in Moy & Pao [2022] FedCFamC1A 17 at [11]:
…The test adopted in this Court for leave to appeal is a conjunctive one, namely, whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, if so, whether a substantial injustice would occur if leave were not granted (Medlow & Medlow (2016) FLC 93-692 at [57]…).
For the following reasons, the applicant has failed to satisfy me that the orders which are the subject of appeal are attended by sufficient doubt such that the application for leave to appeal should be granted.
As noted by Gageler J in New South Wales v Kable (2013) 252 CLR 118 (“Kable”) at [56], there is a “critical distinction” between an order made by a superior court of record and the status of that made by an inferior court of record without jurisdiction. Specifically, an order made by an inferior court of record that is made without jurisdiction “has no legal force as an order of that court.” Such an order, it was noted by Gageler J “may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it.”
That is not, however, the case in respect to an order made by a superior court of record. Citing Cameron v Cole (1944) 68 CLR 571 at 590, Gageler J noted at [56], in contrast to the situation in respect to an inferior court of record, that:
It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside.
The plurality in Kable, at [38]–[40], relevantly explained the reasoning for that principle in the following terms:
38.…There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed. That point may be marked in a number of ways. One way in which it is marked, in Australian law, is by treating the orders of a superior court of record as valid until set aside.
39.Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.
40.… More fundamentally, as the legal philosopher Hans Kelsen wrote, '[a] status where everybody is authorized to declare every norm, that is to say, everything which presents itself as a norm, as nul, is almost a status of anarchy'.
(Citations omitted)
disposition
In these proceedings, both parties agreed that the Court constituted by a single judge presiding as a judge of the Family Court of Western Australia is a superior court of record.
For the purpose of this appeal, I will take the applicant’s case at its highest to the extent that I will assume, without deciding, that the judge who made the consent orders erred in failing to value the parties’ superannuation interest pursuant to s 90XT of the Family Law Act 1975 (Cth) (“the Act”) prior to making the superannuation splitting orders. I will further assume, without deciding, that the putative error was a jurisdictional error.
As the orders were made by a Court that both parties agreed was a superior court of record, the consent orders made on 20 April 2021 are at best voidable, not null and void. That is, the consent orders remain valid and enforceable unless and until they are set aside by way of appeal or, potentially, quashed by way of prerogative writ.
As at the date of the enforcement orders made on 10 June 2022, the consent orders made on 20 April 2021 remained valid and enforceable. Therefore, no error has been established in respect to the orders made by the magistrate on 10 June 2022 to enforce the consent orders. The appeal must fail.
Costs
Senior counsel for the applicant conceded that, in the event of the appeal being unsuccessful, the applicant had the capacity to pay costs. In circumstances where the applicant has been wholly unsuccessful (s 117(2A)(e) of the Act), I am satisfied that the applicant should be required to pay the costs of the respondent.
To avoid the parties incurring further costs and requiring the allocation of resources of the Court, I am satisfied that it is appropriate for costs to be awarded in favour of the respondent in a fixed sum amount. It was conceded that, in the event of such an order being made, it is appropriate for items 1–9 of the respondent’s Schedule of Costs to be removed, as those items relate to costs associated with a stay application. Accordingly, I order that the applicant pay the respondents costs in the sum of $3,029.18. In specifying that amount, I have taken the counsel’s fees to be at the lower end of those specified in the Schedule of Costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 11 October 2022
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