Danvers and Danvers
[2018] FamCAFC 262
•21 December 2018
FAMILY COURT OF AUSTRALIA
| DANVERS & DANVERS | [2018] FamCAFC 262 |
| FAMILY LAW – APPEAL – where the husband sought parenting orders in the Federal Circuit Court of Australia by way of an Application in a Case filed in respect of property proceedings – where final parenting orders had been made by consent in 2016 – where the husband was required to reinstitute parenting proceedings by filing an Initiating Application in accordance with the Family Law Act 1975 (Cth) and relevant rules of court – where the husband’s Application in a Case also sought orders which sought to re-litigate property issues already determined – where the trial judge did not err in dismissing the husband’s Application in a Case in those circumstances – appeal dismissed – no order as to costs. |
| Family Law Act 1975 (Cth) ss 60I, 79, 94AAA Family Law Rules 2004 (Cth) rr 2.01, 2.02 |
| Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Mr Danvers |
| RESPONDENT: | Ms Danvers |
| FILE NUMBER: | BRC | 2053 | of | 2015 |
| APPEAL NUMBER: | NOA | 74 | of | 2018 |
| DATE DELIVERED: | 21 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 18 December 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 July 2018 |
| LOWER COURT MNC: | [2018] FCCA 2319 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person with the assistance of an interpreter |
Orders
The husband’s appeal against the orders made by Judge Egan on 18 July 2018 be dismissed.
There be no order as to costs.
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 Danvers & Danvers 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 74 of 2018
File Number: BRC 2053 of 2015
| Mr Danvers |
Appellant
And
| Ms Danvers |
Respondent
REASONS FOR JUDGMENT
In my opinion this appeal ought be dismissed and as it does not raise any question of general principle, reasons for that conclusion may be given in short form.[1]
[1] In accordance with s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”).
On 30 August 2016, the first day of the trial of property and parenting proceedings before Judge Baumann[2] in the Federal Circuit Court of Australia, Mr Danvers (“the husband”) and Ms Danvers (“the wife”) were able to largely agree upon the parenting orders to be made with respect to their three children. Judge Baumann resolved remaining parenting issues such that final parenting orders were made on 30 August 2016 bringing to a conclusion the parenting proceedings between the parties.
[2] As Justice Baumann then was.
The property proceedings proceeded to a judicial determination. Judge Baumann made property settlement orders on 15 June 2017. The property settlement orders included provisions for the sale of the parties’ former matrimonial home situated at Suburb R (“the Suburb R property”) and the distribution of sale proceeds so as to effect an overall 55 per cent/45 per cent division in the husband’s favour of the parties’ property interests.
I interpolate here that on 14 December 2017, exercising the appellate jurisdiction pursuant to s 94AAA(3) of the Act, I dismissed the husband’s appeal from those orders.
On 29 May 2018, Judge Egan heard an application brought by the wife seeking that the husband be ordered to vacate the Suburb R property in order for the wife to arrange its sale pursuant to the orders made by Judge Baumann on 15 June 2017. Judge Egan ordered, inter alia:
a)that the husband vacate the Suburb R property within seven days;
b)that the husband deliver all keys to the Suburb R property to the wife by 5 June 2018;
c)that the wife have sole right to engage real estate agents for the listing and sale of the Suburb R property;
d)that the husband be restrained from entering the property after 5 June 2018 and from approaching the agents engaged concerning the sale of the Suburb R property;
e)that the net proceeds of sale be held in the wife’s solicitor’s trust account until further order; and
f)that a Registrar of the Court be appointed to do all things and sign all documents necessary to effect the sale of the Suburb R property.
It can thus be seen that the property settlement orders made on 15 June 2017 finalised the parties’ respective legal rights pursuant to s 79 of the Act, whilst the orders made by Judge Egan on 29 May 2018 were machinery orders to give practical operation or effect to the earlier final property orders.
The husband filed an Application in a Case on 4 June 2018 seeking a stay of the orders made on 29 May 2018 pending determination of the husband’s appeal from those orders. On 18 July 2018 Judge Egan dismissed that application as the husband had not in fact filed any appeal from the orders made on 29 May 2018. The husband does not challenge that dismissal. As a matter of law there can be only one outcome for an application for a stay of orders pending determination of an appeal from those orders if in fact no appeal has been filed or pursued. As at the date of hearing on 18 July 2018 of the husband’s application for a stay of the orders made on 29 May 2018, the husband had not filed any appeal from those orders and the appeal period had expired.
In these circumstances Judge Egan was obviously correct in dismissing the husband’s application for a stay of the orders made on 29 May 2018. To the extent that the husband complains of denials of procedural fairness concerning the hearing on 18 July 2018, it is unnecessary to engage with those complaints with respect to this aspect given that, as noted, as a matter of law there could only be one outcome of the application for a stay of orders where no appeal had been filed.[3]
[3]Stead v State Government Insurance Commission (1986) 161 CLR 141.
On 13 July 2018 the husband filed an Amended Application in a Case seeking the following orders:
a)that the wife do nothing to prevent the parties’ children from taking their toys and belongings to each parent’s house;
b)that the property orders “unambiguously state a 45% division of Assets” to the wife and a 55 per cent division of assets to the husband;
c)that the wife be ordered to be responsible for one half of the mortgage debt and interest held by the Danvers Discretionary Family Trust trading as XYZ Pty Ltd, as well as one half of the mortgage debt and interest held in respect of the matrimonial property and that the wife reimburse the husband for half of the payments he made in respect of those mortgages following the sale of the property;
d)that if the property settlement orders cannot be determined on the hearing of the Application in a Case, a new trial be ordered in respect of both property and parenting matters;
e)that the husband be solely responsible for the sale of the Suburb R property;
f)that the wife reconnect power to the Suburb R property and that the husband be permitted to maintain and repair the property pending its sale and both parties meet council rates and utilities equally;
g)that the parties’ youngest child reside each alternate week with the husband and half of all school holidays;
h)that the parties’ second child, J, live with the husband and spend time with the wife as requested by J;
i)that the wife be referred to the Australian Federal Police for perjury;
j)that the wife be declared a vexatious litigant; and
k)that the children be removed from the airport watchlist.
On 18 July 2018 Judge Egan dismissed that application and from that dismissal the husband appeals. The appeal is heard by me as a single judge pursuant to s 94AAA(3) of the Act.
Grounds of appeal
The husband sets out four stated grounds of appeal in his Summary of Argument filed 19 November 2018. Those grounds can be summarised as follows:
a)apprehended bias on the part of the trial judge against the husband;
b)procedural unfairness. The husband asserts that the trial judge did not allow him to put forward his case nor respond to anything said by the wife’s solicitor;
c)the trial judge erred by failing to read the husband’s material or hear the husband’s case with respect to parenting issues sought to be agitated; and
d)the trial judge erred in ordering the husband to pay the wife’s costs of and incidental to the two Applications in a Case in circumstances where the wife’s solicitor acted for her in relation to conveyancing matters and had not filed a Notice of Address for Service in relation to family matters, and further that the wife’s solicitor had sworn at the husband outside of Court on the day of the hearing.
Apprehended bias
The husband asserts that the trial judge demonstrated bias against the husband during the hearing of his Applications in a Case on 18 July 2018. This assertion should be dealt with first.[4]
[4]Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117].
The issue of bias was not raised with his Honour at any stage during the hearing, and the husband cannot now raise it on appeal.[5] In Vakauta, Toohey J said the following (at 587):
In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased…
[5]Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”).
In Johnson v Johnson[6] the High Court set out the test to be applied in determining whether a judge is disqualified by reason of the appearance of bias. That test is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide” (at p 492).
[6] (2000) 201 CLR 488.
A reading of the transcript does not reveal any basis upon which the allegation of “bias” could reasonably be made. There is no substance in this complaint.
Procedural unfairness
In his oral argument one of the husband’s central complaints was that in non‑compliance with the relevant rules of practice of the Federal Circuit Court, the solicitor who appeared for the wife on the hearing on 18 July 2018 had not filed a Notice of Address for Service. Accepting the non-compliance with the rule as contended for, the husband was afforded the opportunity to identify what material prejudice or adverse effect upon the husband was produced by such non‑compliance. Initially the husband contended that if he knew or had advance notice that the wife would have a solicitor appearing on the application he might also take that course. That seemed to be a sterile complaint given that it was always open to the husband to have legal representation. However, in a later submission the husband asserted he did not have the financial capacity to incur legal costs so could not have engaged a lawyer in any event. In my judgment the complaint about the wife’s solicitor not having filed a Notice of Address for Service in the circumstances is a hollow complaint.
The husband asserts that he was not afforded procedural fairness during the hearing of his Applications in a Case. In particular, the husband asserts that he was not given an opportunity to present his case and respond to the submissions made by the solicitor for the wife.
Whilst it may fairly be observed from a review of the transcript that the trial judge did not necessarily indulge the husband with fulsome opportunities to make lengthy or elaborate submissions, it must be borne in mind that in the end result the trial judge concluded that the subject applications of the husband were an abuse of process. It is important to note that there is no challenge on the husband’s appeal to the adequacy of the trial judge’s reasons for judgment. In any event, the trial judge made clear to the husband in the course of the proceedings below the trial judge’s view and conclusion that the husband’s attempt to re-agitate property issues (given the final property settlement orders made on 15 June 2017 and the further machinery orders made by the trial judge on 29 May 2018) constituted an abuse of process. That conclusion by the trial judge was plainly open.
The husband was unable to demonstrate on appeal that the trial judge was not correct in concluding that Orders 4, 5, 6, 7 and 8 of the husband’s Amended Application in a Case had not already been determined by way of the final property settlement orders made by Judge Baumann on 15 June 2017 following a trial of the matter.
Orders 11 and 12 of the husband’s Amended Application in a Case sought that the wife be declared a vexatious litigant and that she been referred to the Australian Federal Police for perjury the husband asserts she committed while giving evidence about her role in the family business and her claims of domestic violence. With all due respect to the husband, there was no sufficient evidentiary basis to bring such a serious application, not to mention the feature that the wife was a respondent, and not an applicant, in the subject proceedings.
The husband asserts on appeal that he was not, in the subject applications, seeking to re-agitate property issues. He emphasises that he was also seeking a review of parenting orders. However, as will now be discussed, this can be seen to be a misconceived attempt by the husband to include parenting issues in an Application in a Case when, parenting proceedings having been brought to a conclusion by final orders made as long ago as 30 August 2016, it was only possible for such orders to be revisited if an Initiating Application was filed to commence a new parenting case with all the pre-conditions being fulfilled (for example dispute resolution) prior to such a case being instituted.
No error on the part of the trial judge is demonstrated with respect to the trial judge’s summary dismissal of an application for orders which had no merit.
Parenting issues
The husband correctly identifies that Orders 3, 9, 10 and 13 of the orders sought by him pursuant to his Amended Application in a Case filed 13 July 2018 related to parenting matters.[7]
[7] See paragraph 12 of the husband’s Summary of Argument.
As already noted, parenting issues were resolved by way of consent orders made on 30 August 2016.
The husband’s Amended Application in a Case filed 13 July 2018 sought to revisit the living arrangements provided in the orders made 30 August 2016 in respect of the two older children. The husband did not file an Initiating Application in relation to parenting matters and instead purported to seek to vary those orders by filing an Amended Application in a Case.
The husband asserts that the trial judge ought to have applied the principles espoused in Rice and Asplund[8] before dismissing the husband’s Amended Application in a Case. Further, the husband contends that the trial judge failed to consider the legislative pathway.
[8] (1979) FLC 90-725.
It was not open to the husband to purport to re-agitate parenting issues in the manner in which he did (ie by the filing of an Application in a Case in respect of the current property proceedings) and as such, it was open to the trial judge to dismiss the Amended Application in a Case to the extent that it related to parenting issues as an abuse of process.
Without being necessarily exhaustive about the relevant statutory provisions and rules of practice, Subdivision E of Part VII of the Act sets out the mandatory family dispute resolution requirements that a party must meet before any order under Part VII of the Act (ie a parenting order) is applied for. Subject to limited exceptions, s 60I(7) mandates that a court exercising jurisdiction under the Act must not hear an application for a Part VII order unless the applicant has filed a certificate from a family dispute resolution practitioner certifying that family dispute resolution has been undertaken. The applicable rules of court[9] stipulate that for an application to start a case seeking parenting orders under Part VII of the Act, an Initiating Application must be filed and the rules further stipulate the documents which must be filed with the Initiating Application.[10]
[9] Rule 4.01 of the Federal Circuit Court Rules 2001 (Cth); r 2.01 of the Family Law Rules 2004 (Cth) (“the FLR”).
[10] Rule 2.02 of the FLR.
On the hearing before me, the husband confirmed that if he had been aware that it was necessary that he file an Initiating Application to commence fresh parenting proceedings “we would not be here”, meaning that the husband would not have pursued these appeal proceedings. Whilst it would certainly have assisted this process if the trial judge had taken the trouble to explain to the self‑represented husband why it was that his chosen method of revisiting earlier parenting orders was misconceived, it cannot be concluded that there was appealable error on the part of the trial judge in failing to so do.
Challenge to the costs order
The husband asserts that the trial judge erred in ordering the husband to pay the wife’s costs of and incidental to his Applications in a Case.
As already noted, the husband’s application for a stay of the orders made on 29 May 2018 pending appeal was doomed to fail given that no appeal from those orders was ever filed. The wife was obviously put to unnecessary expense in defending a meritless application for a stay.
The husband asserts that as the wife’s solicitors were not on the record, they should not be entitled to seek costs. That obfuscates the fact that it is the wife who bears costs and who sought for those costs to be met by the husband in the circumstances. It is not shown by the husband why the wife should be penalised by reason of the non-filing of a Notice of Address for Service by the solicitors who appeared. The husband’s complaint extends to the amount of costs subsequently sought by the wife, which was not a matter before the trial judge and thus cannot be a subject of appeal on the basis of some error by the trial judge.
The husband further contends that the wife’s solicitor spoke inappropriately to him outside of Court which the husband further contends as a reason why the solicitor ought not be awarded costs. I note that this allegation does not appear to have been raised before the trial judge during the husband’s submissions as to costs. Moreover, it again obfuscates that it is the cost to the wife which are under consideration rather than there being any award of costs in favour of the solicitor.
The trial judge afforded the husband the opportunity to make any submissions he thought relevant in opposing an order for costs against him. Following the hearing of costs submissions, the trial judge ordered the husband to pay the wife’s costs in respect of the Applications in a Case “as assessed in accordance with Schedule 1 of the Federal Circuit Court Rules 2001”. However, the trial judge refused the wife’s application for the husband to pay the costs of removal of his personal items from the former matrimonial home.[11]
[11] Transcript, 18 July 2018, p 6 ln 3 to p 7 ln 17.
The husband points to nothing on appeal which demonstrates error on the part of the trial judge in awarding the wife her costs on a party and party basis of defending applications which were dismissed as an abuse of process.
Costs of appeal
Neither party had legal representation for the appeal and neither party sought an order for costs. There will thus be no order as to costs of the appeal.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 December 2018.
Associate:
Date: 21 December 2018
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