Decaux and Sabri
[2017] FamCAFC 32
•28 February 2017
FAMILY COURT OF AUSTRALIA
| DECAUX & SABRI | [2017] FamCAFC 32 |
| FAMILY LAW – APPEAL – change of venue – where the trial judge transferred proceedings from Brisbane to Newcastle – where the procedural orders made were interlocutory and leave to appeal was required – where the applicant alleged the balance of convenience was in his favour – where there was no substantial injustice – where there was no error in the exercise of the trial judge’s discretion – leave to appeal not granted. |
| Family Law Act 1975 (Cth) ss 4AA, 90SM, 94AA |
| Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 K and S & V (2001) FLC 93-070 Niemann v Electronics Industries Ltd [1978] VR 431 Rutherford & Rutherford (1991) FLC 92-255 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 Sheen & Paulo [2007] FamCA 1175 |
| APPLICANT: | Mr Decaux |
| RESPONDENT: | Ms Sabri |
| FILE NUMBER: | BRC | 7680 | of | 2016 |
| APPEAL NUMBER: | NA | 82 | of | 2016 |
| DATE DELIVERED: | 28 February 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 28 February 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 November 2016 |
| LOWER COURT MNC: | [2016] FCCA 2880 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| FOR THE RESPONDENT: | In person via Videolink from the Newcastle Registry |
Orders
The application for leave to appeal filed 27 January 2017 be dismissed.
The Amended Notice of Appeal filed 27 January 2017 be otherwise dismissed.
Each party bear their own costs of and incidental to the application for leave to appeal and appeal.
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 Decaux & Sabri 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 82 of 2016
File Number: BRC 7680 of 2016
| Mr Decaux |
Applicant
And
| Ms Sabri |
Respondent
EX TEMPORE
[1]As indicated during the oral delivery of these reasons, citations, headings and complete quotations have been included in these settled reasons.
Mr Decaux alleges that he and Ms Sabri were in a de facto relationship within the meaning of s 4AA of the Family Law Act “for at least three and a half years”.[2] Ms Sabri deposes that she had a “casual sexual relationship with [Mr Decaux] for approximately 8 months”.[3] She denies ever living with him and denies that there was, at any time, “any mutual commitment to a shared life or future plans” or any financial inter-relationship. Mr Decaux’s assertion founds a claim by him for an order for settlement of property pursuant to s 90SM of the Act; a claim that Ms Sabri seeks to have dismissed.
[2] Affidavit of Mr Decaux filed 8 August 2016, paragraph 16.
[3] Affidavit of Ms Sabri filed 24 October 2016, paragraph 1(a).
Mr Decaux’s proceedings were commenced in the Brisbane registry of the Federal Circuit Court. In her response to those proceedings, Ms Sabri sought an order that the proceedings be transferred to the Newcastle registry of that Court. She apparently resides in Newcastle. On 2 November 2016, Judge Baumann ordered that transfer and made procedural orders accordingly.
Mr Decaux seeks leave to appeal that decision. If leave is granted, his Amended Notice of Appeal seeks an order that the “complete decision” of Judge Baumann “be reversed or vacated”.
The Chief Justice certified that she considered it appropriate that the jurisdiction of the Family Court in relation to the application for leave to appeal and, if successful, the appeal be exercised by a single Judge. Mr Decaux’s application was heard by me this morning pursuant to that delegation.
Jurisdiction and Power
The Federal Circuit Court has no jurisdiction to hear and determine Mr Decaux’s application for a property adjustment order unless and until it is determined that a de facto relationship as defined by s 4AA of the Act existed between him and Ms Sabri and that the relationship has broken down. This central jurisdictional fact is in dispute and has not been determined.
However, the Federal Circuit Court, despite not being a “superior court of record” has jurisdiction and power to determine if it has jurisdiction and to control its own processes. It also has jurisdiction and power to make what have been described as “holding orders” pending the determination of the jurisdictional facts necessary to found the jurisdiction and power to make, relevantly, orders pursuant to s 90SM.[4]
[4]See for example, Jackson v Sterling Industries Limited (1987) 162 CLR 612; R v Forbes and another; Ex Parte Bevan and others; R v Drinkwater and another; Ex parte Heffernan and others (1972) 127 CLR 1; Norton v Locke (2013) 284 FLR 51.
All the more so then, the Federal Circuit Court has the power to make procedural orders designed to facilitate the hearing and determination of the proceedings within which the jurisdictional facts will be determined. An order for change of venue, with which this application for leave is concerned is, in my view, an order of that type.
Change of Venue
Applications for change of venue are governed relevantly by r 8.01 of the Federal Circuit Court Rules 2001 (Cth). The rule prescribes a non-exhaustive list of matters to which the court must have regard:
a.The convenience of the parties; and
b.The limiting of expense and the cost of the proceeding; and
c.Whether the matter has been listed for final hearing; and
d.Any other relevant matter.
The decision involves the exercise of discretion and a balancing of the competing interests of the parties consistent with the administration of justice and, ultimately, the exercise of discretion.
The primary judge referred to earlier procedural orders made by him (on 10 October 2016), and to the fact that “the issue [as to] whether there is or isn’t a de facto relationship … be dealt with as a discrete issue which is the usual practice I adopt.”[5] The application for change of venue by Ms Sabri, and his Honour’s decision was made in contemplation of a final hearing at which that bifurcation was mooted.
[5] Transcript of Proceedings, 2 November 2016, p 2.
The trial judge’s order, the subject of the instant challenge was, then, an “interlocutory decree”. That necessitates Mr Decaux convincing this Court that leave to appeal should be granted.[6]
[6] Family Law Act 1975 (Cth) s 94AA; Family Law Regulations 1984 (Cth) Reg 15A.
Leave to Appeal and Procedural Orders
The Act does not prescribe criteria, nor does it provide guidance as to the matters which should or might inform the exercise of the discretion to grant leave. Authority of longstanding has identified matters relevant to the exercise of that discretion, while at the same time emphasising the undesirability of “rigid rules” governing the exercise of that discretion.
The identified matters include whether the impugned decision is attended by sufficient doubt, whether substantial injustice would be caused by the refusal of leave, and whether the impugned decision involves an interference with substantive rights or is a matter of practice and procedure.[7]
[7]Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170; Rutherford & Rutherford (1991) FLC 92-255; Niemann v Electronics Industries Ltd [1978] VR 431; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238.
Crucial to the consideration of the issue of leave, the impugned order relates to a matter of practice and procedure.
Almost axiomatically, applications for change of venue, and the resisting of such claims, involve competing claims of cost, inconvenience and associated stress. However, it cannot usually be said, and cannot be said in this case, that the order involves the substantive rights of the parties or an infringement of those rights.
The Full Court in K and S & V (2001) FLC 93-070 said at paragraphs 15 and 16 (as quoted by Boland J at [27] of Sheen & Paulo [2007] FamCA 1175, a decision referred to in argument by Mr Decaux):
When considering this appeal, it needs to be firmly borne in mind that this is an appeal against an exercise of discretion. An appellate court may review a discretionary judgment which has proceeded under a wrong principle, has failed to give proper weight to a relevant matter, has given undue weight to a particular matter, has given weight to an irrelevant matter, or has reached a conclusion that is manifestly unjust.
Generally, an appellate court will apply particular caution in interfering with the discretionary judgment concerning a matter of practice or procedure, though it will be more ready to interfere if it perceives that the decision was affected by error which has worked injustice to the appellant.[8]
[8]Further cases cited by the Full Court in K and S & V (2001) FLC 93-070: “Jackamarra v Krakouer (1998) 195 CLR 516; Philip Morris Inc v Adam P. Brown Male Fashions (1981) 148 CLR 457; Willow Grange Pty Ltd v Yarra City Council (unreported, Victorian Supreme Court of Appeal, 23 December 1997)”.
The High Court said in Adam P Brown:[9]
… courts exercise particular caution in reviewing decisions pertaining to practice and procedure … Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties …
[9] Above, 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ.
In emphasising the difference between substantive and procedural matters, the High Court went on to quote from Re the Will of F B Gillbert (dec):[10]
… I am of the opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably and costs heaped up indefinitely …
[10] (1946) 46 SR (NSW) 318.
Later, French J, as the former Chief Justice then was, said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd[11] “[t]he time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties”.
[11] (2000) 104 FCR 564, 583.
The Trial Judge’s Decision and the Applicant’s Arguments
The trial judge’s decision in this case was made, with respect, extremely difficult by reason of the material filed by each of the parties and, again with respect, their arguments.
Both parties were, and are, self-represented. Each makes a plethora of allegations against the other. A very large bulk of the material filed by each is of marginal relevance to the issue of change of venue.
In response to the Notice of Appeal’s stipulated requirement to “state briefly the facts relied upon in support of the application for leave to appeal and which establish and error of principle or a substantial injustice”, Mr Decaux pleads as follows:
1.The salient facts that his Honour failed to address and give proper weight to are as follows:
a.
He failed to recognise the seriousness of the death threats made by the respondent against the appellant and his witnesses.
This alone results in a substantial injustice to the applicant as not only is the threat of physical harm a major issue the relevant factor is that due to these threats, they will be a sufficient deterrent to prevent the applicants witnesses from giving evidence in Newcastle in the State of New South Wales.
b.That the balance of convenience regarding costs weighs heavily in the appellant’s favour.
c.That the inconvenience to the respondent is very minor compared to that of the appellant and his various witnesses let alone that those witnesses will be at risk of being harmed or killed and that they will also be required to take time off work to travel interstate and lose at least two days in wages and other payments.
The respondent has made it clear that she has no witnesses for any inconvenience to occur to others.
d.His Honour failed to recognise and take into account the fact that not once has the respondent ever denied making such threats let alone the sworn evidence that is a part of the documents in this appeal to verify that in fact the threats made by the respondent are very real and that the court has a duty of care to make sure that all witnesses are protect and not at risk of any harm.
The court is unable to protect the applicant and his witnesses prior to and after the court proceedings over a two day period once they are not within the court precincts.
e.His Honours order appealed against is attached.
(As per original)
In oral argument, Mr Decaux emphasised and re-emphasised that “the main factor is the safety factor”; “that is the number one priority”. That is, plainly enough, a reference to the asserted “death threats” allegedly made by or on behalf of Ms Sabri.
Before addressing that central issue, it is first necessary to address the contention at subparagraph (c) of the application for leave to appeal that “the respondent has made it clear that she has no witnesses of any inconvenience to occur to others”. That contention serves as a premise for many, if not all, of the other arguments raised by Mr Decaux.
As Mr Decaux made clear orally this morning, the contention is founded on this statement sworn to in Ms Sabri’s affidavit:
In the entire duration of my association with [Mr Decaux] there were no introductions to any members of my family, friends or acquaintances. However in 2012 the applicant presented himself uninvited at my sister’s doorstep for approximately five minutes.[12]
[12] Affidavit of Ms Sabri filed 24 October 2016, paragraph 1(g).
Section 4AA of the Act requires the Court, in determining whether the parties were in a de facto relationship, to, relevantly, have regard to “all the circumstances of their relationship” in determining whether they have or had “a relationship as a couple, living together on a genuine and domestic basis”. The circumstances are not circumscribed by the section, but subsection (2) of s 4AA prescribes a number of considerations that may be taken into account in making the relevant determination.
Ms Sabri does not depose to how many witnesses she might call in respect of the relevant central issue of whether there was a de facto relationship between the parties, nor does she depose to who any such witnesses might be, nor provide any detail or overview of what their evidence might be. Nor does she depose to where any such witnesses might live or what their economic or other circumstances relevant to giving evidence might be.
However, that is not the same thing as saying – as does Mr Decaux – that she has “made it clear that she has no witnesses”.
Crucially, each and all of the considerations just mentioned apply equally to evidence presented by Mr Decaux. He has not indicated who his witnesses might be, save for Mr C, whose affidavit will be referred to shortly. Vague assertions are made by Mr Decaux about “my witnesses”, but neither their number, their identity, or the specifics or any overview of their evidence is deposed to. Nor is any reference made to the economic and other circumstances relevant to any of them giving evidence, save for assertions as to their safety, the central plank of Mr Decaux’s application for leave.
In the absence of any such details by either party, it was impossible for his Honour to arrive at any of the conclusions which Mr Decaux says should have been reached.
As to the asserted requirement for witnesses to “take time off work and lose at least two days in wages and other payments”, no evidence at all was offered by or on behalf of Mr Decaux to that effect upon which his Honour could have relied.
An affidavit by Mr C was filed by Mr Decaux and was before his Honour. Much of the purported evidence which it contains would be inadmissible at a trial. Paragraphs 16 and 23 are but two, albeit striking, examples.
Leaving that matter aside, the affidavit says not a thing about his economic and other circumstances relevant to attending a trial, save perhaps that he deposes to being an “[entertainment and other professional]”, although where and for whom are not deposed to. Mr C does not depose, for example, to a residential address from which, perhaps, travel difficulties or the like might have been inferred by his Honour.
Specific Rule 8.01 Considerations
Before turning to the central issue emphasised both in Mr Decaux’s written material and in his oral submissions, I should refer briefly to the specific paragraphs of r 8.01.
In relation to r 8.01(a) Mr Decaux asserts that his Honour should have inferred that it would be less inconvenient for Ms Sabri to attend Brisbane than for him to attend the final hearing in Newcastle because what is deposed to by him in response to the paragraph of Ms Sabri’s affidavit quoted earlier. Mr Decaux deposes:[13]
In regards to her stepsister I met her on two occasions once when I was dropping off Ms [Sabri] to her step sister’s house in [Suburb B] and the other time when I knocked on her door to pick up Ms [Sabri] to go out.
[13] Affidavit of Mr Decaux filed 28 October 2016, p 9.
It appears to be suggested by Mr Decaux that a responsive paragraph to an event to which Ms Sabri deposes occurring some four years prior to the hearing before his Honour, should have been used by his Honour to find less inconvenience to Ms Sabri. That assertion should be rejected.
Amidst the plethora of allegations and counter-allegations made, there was, in fact, no evidence from which his Honour could have or should have drawn a conclusion as to convenience to either party by reference to r 8.01(a). Each party’s proposal necessarily involved inconvenience to the other.
So, too, no reliable evidence was put before his Honour as to the cost or inconvenience to the parties, such that it was a factor weighing significantly in favour of one party or the other. Despite being an “[entertainer]”,[14] Mr Decaux deposes to his sole income coming from pensions. Similarly, Ms Sabri deposes to having no remunerative income.
[14]Affidavit of Mr Decaux filed 28 October 2016, p 1.
Finally, it appears to have been common ground before his Honour that the matter had not been listed for final hearing. No evidence suggested – nor were any submissions made – that a final hearing in Brisbane or Newcastle would be heard any sooner or later than the other or be attended by delay by reason of factors not common to both.
The Central Argument: Asserted Death Treats and Potential Harm to Witnesses
Mr Decaux’s arguments in this respect can be seen to relate to r 8.01(d); that is, other matters said to be relevant to the decision.
Contrary to what is asserted centrally by him, it was not remotely suggested by his Honour that cogent evidence of harm or threats should not be treated anything other than seriously. Rather, his Honour’s task was, within the confines of a procedural heading ahead of a trial, to assess the weight that was to be attributed to particular parts of the evidence and how cogent and reliable or otherwise that evidence was.
Mr Decaux’s affidavit before his Honour contains a number of assertions as to threats made by Ms Sabri, including, he says, threats to kill him. For example:[15]
I formally advised this court that Ms [Sabri] along with two Lower Courts in NSW and Judicial Officers are formally under investigation for corruption and collusion and that both the Attorney General’s Office of NSW and the Judicial Commission of NSW are now formally involved in these very serious matters.
These matters also involves the NSW Police as Ms [Sabri] has made very serious threats of Murder against me and my witnesses by threatening us in that once we cross the border into Newcastle to give evidence at a civil trial in the Newcastle Local Court for a matter of a $40,000.00 loan to [Ms Sabri] that people will be waiting for us and that we would be murdered.
These threats along with a range of other matters and complaints are all documented at the Newcastle Police Station and Tweed Heads Police Station who in fact are the ones who recommended for our own safety that I should relocate any proceedings instigated by myself as the plaintiff to another location away from Newcastle to avoid the threat of being murdered.
(As per original)
[15] Affidavit of Mr Decaux filed 28 October 2016, p 3.
It should be pointed out that no evidence from any police officer, nor any documentary evidence whether from the Newcastle Police Station, Tweed Heads Police Station, the New South Wales Police Service or the Queensland Police Service was presented, or sought to be presented, by the husband to his Honour.
Mr Decaux confirmed that not only are there no criminal charges currently outstanding that might pertain to his asserted threats (including, notably, an asserted threat of murder) but further, that he had not made any formal complaint in respect of same at the time of the hearing. When asked by the Court why that was, he said because “he didn’t want to hurt her”, that is Ms Sabri. The alleged threats include, I repeat, a threat to murder.
Mr Decaux attaches to the same affidavit what he describes as a “[m]acabre and sinister photo depicting a head with a bloody knife” and “[a] photo of two text messages warning me off Ms [Sabri] or else”.[16]
[16] Affidavit of Mr Decaux filed 28 October 2016, p 3.
I do not purport to make determinative findings about either of those two pieces of evidence, but to the extent that it is said that his Honour has not given them sufficient mind, I should at least say that reference to the texts does not reveal who they were from or to. Further, when asked about text messages, of a similar style, sent by him, he said they were irrelevant because they occurred in 2012/2013. The texts sent allegedly by Ms Sabri were also sent around this time.
Reference to the photo reveals a knife with the words “happy birthday” written on it and what is said to be blood appears to me to be chocolate. Indeed, it looks to me like a picture of a birthday cake. Again, nothing on the exhibits speaks of who sent the photo or its derivation otherwise.
The exhibits just referred to are followed by the following deposition by Mr Decaux:[17]
The facts are Ms [Sabri] arranged to have me followed and intimidated by someone I do not know, whilst I was to be attending the Newcastle Local Court in May 2016.
This occurred in the pitch of darkness, this man continued to follow me for miles and tried to wave me down to pull me over in dark streets when there was no one around, I had no idea if he had a weapon of some kind or even a gun so as a consequence and for my own safety I contacted 000 where 3 Police cars attended due to the 000 call.
The police came and apprehended this unknown man to me and then confirmed that this man for whom they would not disclose his identity to me confirmed that he was an associate of Ms [Sabris], he was cautioned by police to not ever go near me again and from then on the threats of murder from Ms [Sabri] continued.
In another threat Ms [Sabri] advised me that her friends were planning to have me hit over the head kidnapped and placed in a boat taken out to sea and thrown out of the boat to either drown or be eaten by sharks as Ms [Sabri] knew that I hated sharks and the sea.
The SGT at Newcastle that attended the incident recommended that I attend a police station in NSW and make a formal report of all this as then this gives the police the option of charging against Ms [Sabri] under the telecommunication Act, intimidation of a witness, Apprehension Orders or many other criminal matters.
(As per original)
[17] Affidavit of Mr Decaux filed 28 October 2016, p 3.
My earlier comments with respect to there being no evidence of any charges being preferred against Ms Sabri pertain. So, too, do my earlier comments in relation to Mr Decaux indicating that he had not made a formal complaint to the police upon which any such charges could or might be brought.
When the Court inquired as to why Mr Decaux and/or his witnesses would not be equally at risk of harm whether the proceedings were held in Brisbane or Newcastle, he replied that “she [Ms Sabri] wouldn’t be that stupid”. When pressed, including questions from the Court as to why either Ms Sabri or her assassins would not be equally able to do harm to Mr Decaux and/or his witnesses if the proceedings were held in Newcastle or in Brisbane, Mr Decaux replied that “she has her gang in Newcastle”. No evidence was before his Honour to that effect.
Whatever be the merits or demerits of the many and varied allegations made by Mr Decaux, he is in my view, wrong in ascribing to them the importance that he does in either suggesting error on the part of the trial judge or that a question of substantial injustice is raised so as to afford him leave to appeal.
If the allegations are taken at face value as true, Mr Decaux offers no evidence (or indeed argument) as to how a trial in Newcastle offers any greater potential for harm than does a trial in Brisbane. Nor does he offer any evidence as to how any security measures that can or might be in place in Newcastle are any better or worse than those in Brisbane. The assertion, without a shred of evidence, that Newcastle is where Ms Sabri’s “gang is” informs neither.
Conclusion
Nothing to which the Court was taken indicates that the trial judge made any error in the exercise of his discretion in respect of the evidence presented to him.
At best, any appeal would be founded upon an assertion that his Honour failed to give sufficient weight to a consideration asserted to be relevant; namely, the potential for harm to the applicant and/or his (unnamed and otherwise unspecified) witnesses. Not only does that attack face the familiar hurdle confronting those who seek to challenge the attribution of weight in respect of discretionary findings, it is, in any event, not demonstrated how attaching greater weight to such evidence as was presented before his Honour would sound in an order different to that made by his Honour.
Nothing to which the Court was taken satisfies this Court of any substantial injustice arising from his Honour’s decision.
The decision relates to a matter of practice and procedure. No substantive rights are challenged and the decision does not finally determine the rights of either party that arise, or might arise, from a de facto relationship which the Court may, or may not, find to have existed between the parties.
The application for leave to appeal will be dismissed.
The Amended Notice of Appeal filed on 27 January 2017 will otherwise be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 28 February 2017.
Associate:
Date: 8 March 2017
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