Dobbs & Dobbs
[2023] FedCFamC1A 234
•21 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dobbs & Dobbs [2023] FedCFamC1A 234
Appeal from: Dobbs & Dobbs [2023] FedCFamC1F 860 Appeal number: NAA 266 of 2023 File number: MLC 8793 of 2015 Judgment of: AUSTIN, CAREW & CAMPTON JJ Date of judgment: 21 December 2023 Catchwords: FAMILY LAW – APPEAL – CONTRAVENTION – PENALTY – Where orders were made in 2018 to finalise property and parenting between the parties – Where in 2020 the respondent wife brought an Application-Contravention against the appellant husband – Where another judge found the husband had contravened the orders on one count as to the property orders and on one count as to the parenting orders –Where the husband was sanctioned with respect to the parenting order contravention but not the property order contravention – Where the husband previously filed two separate appeals – Where the previous appeal as to the contravention of the property order was dismissed as the justiciable dispute between the parties had not yet been determined (“the first appeal”) – Where the appeal in respect of the sanction imposed as to the contravention of the parenting order was allowed on grounds the husband had been denied procedural fairness – Where the primary judge made an order by consent dismissing all outstanding contravention applications, but the order did not enjoy the wife’s consent – Where the transcript records the primary judge realised the mistake and expressly announced the need for the dismissal order to be discharged but then inadvertently failed to do so – Where the order is discharged ab initio – Where the primary judge imposed a fine upon the husband for the outstanding property order contravention – Where the dismissal of the first appeal did not preclude another appeal from the judgment finally determining the contravention – Where the sanction imposed constitutes the judgment from which an appeal lies – Where the primary judge incorrectly took the view the dismissal of the first appeal meant his Honour only needed to determine the appropriate sanction – Appeal allowed – Matter remitted for re-hearing – Where the wife did not participate in the appeal – Costs certificate issued to the husband. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 10.19
Cases cited: Akbar & Gandega [2023] FedCFamC1A 174
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Department of Communities and Justice & Edwards [2023] FedCFamC1F 82
Dobbs & Dobbs (2021) FLC 94-021; [2021] FamCAFC 78
Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13
Harrell & Nesland (No. 2) (2021) 62 Fam LR 230; [2021] FamCAFC 35
Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 100 Date of hearing: 7 December 2023 Place: Heard in Melbourne, delivered in Newcastle Counsel for the Appellant: Mr Cennachi Solicitor for the Appellant: Techcomm Legal The Respondent: Litigant in person (did not participate) ORDERS
NAA 266 of 2023
MLC 8793 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DOBBS
Appellant
AND: MS DOBBS
Respondent
ORDER MADE BY:
AUSTIN, CAREW & CAMPTON JJ
DATE OF ORDER:
21 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 1 made on 12 September 2023 is set aside ab initio.
3.Orders 2 and 3 made on 12 September 2023 are set aside.
4.Count 3 within the Application-Contravention filed by the respondent on 22 January 2020 is remitted for re-hearing by a judge other than Hartnett and McGuire JJ.
5.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 in respect of the costs incurred by him in relation to the appeal.
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 Dobbs & Dobbs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
REASONS FOR JUDGMENT
AUSTIN & CAMPTON JJ
This is an appeal by the husband from orders made on 12 September 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 1).
While the appeal seeks to vitiate only two of three orders, all three are relevant to the discussion. The central complaint concerns the imposition upon the husband of a fine of $2,500 for his proven contravention of an order made between the parties years before in an earlier financial cause under Pt VIII of the Family Law 1975 (Cth) (“the Act”).
We agree with Carew J that the appeal should succeed, but our respective reasons for that outcome differ and the disagreement affects the nature of the remedial orders which should be made in the appeal.
Background
In February 2018, orders were made to finalise a financial cause contested by the parties. One of the orders required the husband to transfer to the wife all of his proprietary interest in a designated parcel of real property (“the property”). He did not do so.
On 22 January 2020, the wife brought an Application-Contravention against the husband alleging numerous counts of his contravention of various orders without reasonable excuse. One count concerned the husband’s failure to transfer his proprietary interest in the property to her (“Count 3”), while another count concerned the husband’s breach of a parenting order (“Count 5”).
The contravention application was heard simultaneously with numerous other applications then pending between the parties during July and August 2020. Judgment was reserved, but reasons were delivered promptly on 31 August 2020. Relevantly for present purposes, the judge found both counts proven and adjourned both to a date in November 2020 for consideration of the sanctions to be imposed, at which later time Count 5 was sanctioned but Count 3 was not.
By two separate appeals, the husband appealed from the finding made against him in respect of Count 3 and the sanction imposed upon him in respect of Count 5. As the Full Court explained when dismissing the first appeal in respect of Count 3 (Dobbs & Dobbs (2021) FLC 94-021 at [10]–[18]), appeals do not lie from findings – only from operable orders which determine the justiciable dispute between the parties. The second appeal in relation to Count 5, the judgment in respect of which was completed by the imposition of a sanction, was allowed on grounds the husband had been denied procedural fairness by reason of the manner in which it was prosecuted against him.
The viral pandemic which gripped Australia for some years stalled the progress of Count 3 to conclusion. The hearing in respect of it eventually occurred before the primary judge on 12 September 2023. After some initial uncertainty, the primary judge perceived the task at hand was to penalise the husband in respect of Count 3. The primary judge determined to impose a fine of $2,500 upon him. His Honour also determined to make another order directing the release of funds still held on trust to the husband, which the primary judge was satisfied would then resolve all outstanding rancour between the parties. Reasons for those orders were delivered ex tempore.
The primary judge made orders in these terms:
1.BY CONSENT the respective contravention applications filed by the parties are dismissed.
2.The sum of two thousand five hundred dollars ($2,500) is to be paid by the [husband], to The Collector of Monies at the Registry of the Federal Circuit & Family Court of Australia at Melbourne within twenty eight (28) days of the date of these orders.
3.Upon confirmation of the receipt of that payment then the monies held in trust by Regal Lawyers be released to the husband.
(As per the original)
The appeal
By an Amended Notice of Appeal filed on 15 November 2023, the husband appeals from only Orders 2 and 3. He is content to abide Order 1 which, on its face, dismisses all antecedent contravention applications filed by the parties.
There are only two grounds to the appeal.
The second alleges the husband’s denial of procedural fairness, which should usually be considered first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The first alleges there was “no proper basis” for making Orders 2 and 3, which was elaborated to mean the primary judge was bereft of jurisdiction, which consideration always assumes priority (Akbar & Gandega [2023] FedCFamC1A 174 at [1]).
For reasons which will become obvious, we will address the orders, rather than the grounds, discretely and sequentially.
Order 1
By Ground 1, the husband contends it was impossible to make Orders 2 and 3 because the primary judge was deprived of jurisdiction to do so once Order 1 was made.
It is true the primary judge orally pronounced an order on 12 September 2023, shortly after the hearing began, dismissing all outstanding contravention applications, thinking an order in those terms enjoyed the parties’ consent and correctly reflected their positions. However, it thereafter became quickly apparent his Honour was mistaken, realising the order did not enjoy the wife’s consent at all. The primary judge then established the outstanding justiciable issue requiring the Court’s determination was the question of the husband’s sanction for Count 3.
His Honour arrived at the point of saying this:
I am going to have to discharge that order that I did about all extant applications being dismissed.
(Transcript 12 September 2023, p.19 lines 41–42)
After further discussion ensued about the effect of earlier procedural orders and what should then happen, this exchange occurred between the primary judge and the husband’s counsel:
[COUNSEL FOR THE HUSBAND]: I am just instructed to raise this as the area of confusion.
HIS HONOUR: All right. The only interpretation that’s available is that one because if you look at it, her Honour made a finding. It was appealed. If the appeal was successful then it would be remitted for rehearing because the first finding would be quashed, but the appeal was unsuccessful so the finding stands, and there can’t be anything for rehearing except – well, except it should read for hearing as to penalty. That’s the only outstanding issue in respect to the financial matters.
[COUNSEL FOR THE HUSBAND]: That is - - -
HIS HONOUR: There’s no other logical course.
[COUNSEL FOR THE HUSBAND]: And your Honour, I am satisfied with your summary of that. It is now a question as to how your Honour wants to proceed today.
HIS HONOUR: So it’s – the penalties on the finding of her Honour confirmed on appeal that [the husband] breached a financial order. If everyone – and I would really for my position, if everyone wants me to be seized of this I’m happy to deal with it.
[COUNSEL FOR THE HUSBAND]: Today, your Honour?
HIS HONOUR: Yes.
(Transcript 12 September 2023, p.25 lines 14–36) (Emphasis added)
The only reasonable interpretation is that the husband accepted the primary judge’s conclusion that his sanction for Count 3 remained outstanding and required determination.
Thereafter, the husband initially instructed his counsel to propose that the question of sanction be referred back to and heard by the judge who originally found Count 3 proven but, after more discussion, he relented and agreed to the primary judge hearing the outstanding issue. This exchange occurred between the husband counsel and the primary judge:
[COUNSEL FOR THE HUSBAND]: Your Honour, and given my client’s indication that he’s happy for you to deal with the matter today - - -
HIS HONOUR: Yes.
(Transcript 12 September 2023, p.27 lines 22–25)
The husband’s counsel then withdrew because the husband informed the primary judge he was content to make submissions as to his sanction without legal representation. After hearing the parties’ submissions, the primary judge settled upon a fine in the sum of $2,500 as being the appropriate sanction and made Order 2.
However, the sanction hearing and its ultimate resolution by the imposition of Order 2 all occurred without the primary judge first discharging or amending the terms of Order 1, as his Honour said he would. Orders 1 and 2 are therefore plainly inconsistent because Order 1 dismisses all outstanding contravention applications yet Order 2 imposes a fine upon the husband for an outstanding contravention.
The husband’s contention in this appeal is that the primary judge was functus officio as soon as Order 1 was pronounced and was thereafter left undisturbed, but the submission does not carry the appeal and is rejected.
True enough, orders are operable and take effect when they are pronounced in court (r 10.19(1)(a) and r 10.19(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), but they may still be revised in limited circumstances. An order may be varied or discharged if, for example, the party in whose favour the order was made consents to that outcome (r 10.13(1)(f)).
Order 1 correctly reflected the primary judge’s belief at the time it was made, so the order did not embody any slip or omission which needed correction, but his Honour’s belief about the parties’ consent was mistaken. The wife did not consent to it. The order was made on an erroneous premise. Once the mistake was realised and further discussion of the predicament ensued, the primary judge expressly announced the need for Order 1 to be discharged. The husband enjoyed the benefit of Order 1, but his consent to the discharge of Order 1 is evident from two things: first, the various exchanges between his counsel and the primary judge; and secondly, from his subsequent willing engagement in the sanction hearing.
Given the husband’s consent, the primary judge had the power to discharge Order 1, announced the intention to do so, but then inadvertently failed to act accordingly. The failure to discharge Order 1 in such circumstances amounted to legal error. Errors identified at first instance in appeals conducted by way of re-hearing must be corrected (Warren v Coombes (1979) 142 CLR 531 at 553). The husband’s strategic omission of Order 1 from the appeal does not preclude its evaluation as part of the appellate process (s 36(1) and s 36(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)).
Order 1 should now be discharged, as his Honour intended, because it was made in error. It would be an unsatisfactorily odd result if, in determining the appeal, this Court were to allow Order 1 to stand as being valid and operable, even though the primary judge and the parties realised it was wrongly made at the time, just because his Honour overlooked its discharge.
However, because Order 1 was made by a superior court of record, it had operable effect whilst ever it remained in force (State of NSW v Kable (2013) 252 CLR 118 at [19], [32], [33], [38], [41], [56] and [57]). For that reason, Order 1 should be discharged ab initio, depriving it of validity from the time it was made, meaning that jurisdiction to sanction Count 3 was restored.
Such an order is within statutory power, as the Court is able to make such remedial orders it thinks fit to rectify appealable error (s 36(1)(b) of the FCFCA Act). Order 1 has not been deployed since the moment it was made, so no question of prejudice to either party arises by annulling it ab initio.
Order 2
Ground 2 asserts the husband was denied procedural fairness when the former judge found Count 3 proven against him in August 2020, which procedural unfairness continued to infect the sanction imposed by the primary judge by Order 2 in September 2023. The contention is irresistible.
When determining the former appeal, the Full Court explained the husband’s comprehensive denial of procedural fairness in relation to the allied appeal from the judgment determining Count 5 against him (Dobbs & Dobbs at [21]–[33]), which exposition it is not necessary to recite in these reasons. The same denial of procedural fairness fatally infected the finding that Count 3 was proven against the husband.
Although the appeal from the finding in respect of Count 3 was dismissed because Count 3 had not yet been sanctioned, the dismissal of the appeal did not preclude another appeal by the husband from the judgment finally determining Count 3. Order 2 made by the primary judge, imposing the fine for Count 3, constitutes that judgment from which an appeal lies.
Although the original judge who found Count 3 proven apparently intended that the primary judge re-hear Count 3 to overcome the procedural unfairness identified in the appeal, the primary judge took the view that the dismissal of the appeal in respect of Count 3 meant that his Honour only needed to determine the appropriate sanction to impose upon the husband.
Having demonstrated appealable error in the prosecution of Count 3 against him, the husband now wants the Full Court to finalise Count 3 by dismissing it, but that is not feasible. The wife is entitled to lawfully prosecute Count 3 against the husband and he is entitled to a fair hearing, which he has not yet had. The only viable option is to remit Count 3 for re-hearing within original jurisdiction.
Order 3
This order purports to discharge an interlocutory order made in November 2020, preserving funds in trust for the parties, by directing the release of the funds to the husband upon his compliance with Order 2.
No written or oral application for such an order was pending before the primary judge and the order was not made with the parties’ consent, so there was no jurisdiction to make Order 3. No amount of idle chat about the trust funds still being a “loose end” between the parties afforded jurisdiction. Count 3 was the only proceeding pending before the primary judge. Order 3 should be set aside.
Disposition
The appeal must be allowed.
We would favour orders which set aside Order 1 ab initio, set aside Orders 2 and 3, and remit for re-hearing Count 3 contained within the Application-Contravention filed by the wife on 22 January 2020.
The wife, as she foreshadowed to the appeal registrar, did not take part in the appeal. She may have lost interest in the antiquated contravention application, but it should be her choice as to whether she now abandons or freshly prosecutes Count 3.
Surprisingly, the husband applied for costs against the wife even though she did not participate in the appeal and he met no resistance from her. The costs application should be dismissed. However, since the appeal succeeds for an error of law, the husband should have a costs certificate for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth).
CAREW J
The order made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 12 September 2023, and the subject of this appeal, is in the following terms:
1.BY CONSENT the respective contravention applications filed by the parties are dismissed.
2.The sum of two thousand five hundred dollars ($2,500) is to be paid by the [appellant], to The Collector of Monies at the Registry of the Federal Circuit & Family Court of Australia at Melbourne within twenty eight (28) days of the date of these orders.
3.Upon confirmation of the receipt of that payment then the monies held in trust by Regal Lawyers be released to the [appellant].
Although it seems the primary judge may have intended to set aside or vary paragraph 1 of that order, perhaps by consent, no such order was in fact made, and the error (if there be one) is not amendable to rectification by this Court. The primary judge was functus officio yet proceeded to impose a sanction on the appellant arising out of a finding made by another judge that the appellant had contravened an order, being count 3 of one of the contravention applications dismissed by consent.
The appeal will be allowed and paragraphs 2 and 3 of the order made on 12 September 2023 set aside.
Before setting out our reasons it will be helpful to provide some background to this long running dispute.
BACKGROUND
Mr Dobbs (“the appellant”) and Ms Dobbs (“the respondent”) married in 2007. They separated on a final basis in 2015 and were divorced in 2016. There is one child of the relationship, namely, X Dobbs born in 2008.
On 9 February 2018, a final parenting order was made (“the parenting order”), and on 15 February 2018, a final property order was made (“the property order”). Thereafter, there were numerous applications filed by each party including numerous contravention applications.
Over four days in July and August 2020, a judge of this Court other than the primary judge (“the original judge”), heard several enforcement and contravention applications filed by both parties, culminating in a series of orders made on 24, 27 and 31 August 2020.
Relevantly, the respondent had filed a contravention application on 22 January 2020 and count 3 of that application alleged a contravention without reasonable excuse of paragraph 1 of the property order, and count 5 alleged a contravention without reasonable excuse of paragraph 14 of the parenting order.
The order made on 31 August 2020 included the following provision:
(11)Upon the Court finding the [appellant] has contravened order 1 of the orders made 15 February 2018 and order 14 of the orders made 9 February 2018 the Court shall be required to make orders addressing what consequences and/or penalties, including costs, shall be imposed upon the [appellant]. That matter shall be listed for hearing on 20 November 2020 at 10.00am. The [respondent] shall file and serve at least 7 days prior thereto an affidavit of evidence as to any costs and other financial losses alleged to have been occasioned to her by virtue of the [appellant’s] breach of order 1 of the orders made 15 February 2018.
(Emphasis added)
An order made on 20 November 2020 adjourned the sanction hearing in relation to the finding as alleged in count 3, to a date to be fixed, after the finalisation of the appellant’s appeal against that finding, which the appellant had filed on 24 September 2020 (SOA 79 of 2020). Additionally, the order made on 20 November 2020 imposed a sanction on the appellant in relation to the finding as alleged in count 5, which led to a second appeal (SOA 98 of 2020).
Appeal SOA 79 of 2020 was held not to be a valid appeal and was dismissed. A differently constituted Full Court held that the appeal was premature, because an appeal (according to the applicable statutory provisions at that time) arose from a “decree” which “only encompasses orders which dispose of a justiciable dispute by an operative judicial act binding the parties’ rights”.[1] Further, the “mere finding by the [original] judge that the [appellant] had contravened two orders without reasonable excuse did not finalise the parties’ justiciable dispute by an operative and binding judicial act”.[2]
[1] Dobbs & Dobbs at [13].
[2] Ibid at [14].
Appeal SOA 98 of 2020 was found to be a valid appeal as it arose out of “an operative judicial act which bound the parties’ rights”, in that the appellant was placed on a good behaviour bond for the contravention found to have occurred.[3]
[3] Ibid at [19].
On 28 April 2021, the Full Court dismissed appeal SOA 79 of 2020, allowed appeal SOA 98 of 2020 and remitted count 5 of the respondent’s contravention application filed 22 January 2020 for re-hearing before a judge other than the original judge. The finalisation of count 3 remained before the original judge.
Thereafter, there were several mentions of the matter before the original judge and the primary judge and on 8 July 2022, the primary judge listed count 3 before the original judge and made directions for the re-hearing of count 5 before himself.
On 30 August 2022, the original judge made the following order:
4.The [respondent’s] extant contravention application filed 22 January 2020 in respect of Count 3 be listed for re-hearing before [the primary judge] on a date and time to be advised by His Honour’s Chambers.
5.Each of the parties make, file and serve any further affidavits of themselves or any witnesses that they wish to rely on in respect of the contravention application (count 3) set out in Order 1 above within 28 days of the date of these orders.
(Emphasis added)
The power to make the order that count 3 be the subject of a re-hearing (if that is what was intended) is not apparent, but as it was made by a judge of a superior court of record, the order stands until set aside.[4] While it might well be expected that any appeal against the imposition of a sanction on the appellant in relation to count 3 would succeed, given the findings made by the Full Court that the appellant had not been afforded procedural fairness, an appeal would have been the appropriate course absent agreement between the parties to dismiss count 3, and for the respondent to bring a fresh contravention application in relation to count 3 to enable it to be re-heard.
[4] Cameron v Cole (1944) 68 CLR 571, 590–591.
When the matter came before the primary judge for hearing on 12 September 2023, the primary judge dismissed by consent “the respective contravention applications filed by the parties”. The respective contravention applications of the parties comprised counts 3 and 5 of the respondent’s contravention application filed 22 January 2020, and the appellant’s contravention application filed 28 October 2022.
The primary judge nevertheless proceeded to hear submissions on what sanction should be imposed on the appellant for the contravention of count 3 of the property order and fined him $2,500.
The respondent has taken no part in the appeal.
GROUNDS OF APPEAL
By an amended Notice of Appeal filed 15 November 2023, the appellant relies on two grounds, that may be shortly stated as follows:
(1)The primary judge had no power to impose the sanction upon the appellant as he was functus officio once the contravention applications had been dismissed; and
(2)The finding by the Full Court that the appellant had been denied procedural fairness by the original judge infected the hearing before the primary judge such that the sanction cannot stand.
Ground one – Functus officio
Before considering ground one, it is perhaps worth setting out the circumstances leading up to the order made by the primary judge on 12 September 2023.
On 9 July 2023, the respondent filed a Notice of Discontinuance of her contravention application filed 22 January 2020, but the content of that Notice caused some confusion. It is unfortunate that the following exchange occurred between the primary judge and counsel (at that time) for the appellant, in the absence of the respondent, who had not yet arrived at Court:
HIS HONOUR: My understanding is – well, I know the [wife], if I can call her that, had her own contravention application but that has been dismissed or discontinued or - - -
[COUNSEL FOR THE APPELLANT]: Your Honour, those were the housekeeping issues that I wished to raise with you. The notice of discontinuance filed by the [wife] is a little confusing, if I can put it that way. So it’s difficult to ascertain specifically whether the entire application is being discontinued.
HIS HONOUR: Well, certainly my understanding, and I think - - -
[COUNSEL FOR THE APPELLANT]: And that - - -
HIS HONOUR: I think I instructed my associate to advise her that by discontinuing her application didn’t relieve her of the responsibility of being a respondent or defendant to the other application. But - - -
[COUNSEL FOR THE APPELLANT]: And that was my understanding from reading the document overnight.
HIS HONOUR: Yes. All right.
[COUNSEL FOR THE APPELLANT]: I didn’t see your associate’s correspondence with [the respondent].
HIS HONOUR: No, it was just to confirm that, so all right. We will see what happens if and when she gets here.
(Transcript 12 September 2023, p.3 lines 3–27)
It is also unfortunate that there appears to have been communication between the primary judge’s associate and the respondent to the exclusion of the appellant.
After the respondent arrived at Court, the following exchange occurred between the primary judge and the respondent:
HIS HONOUR: …You don’t have a lawyer representing you?
[THE RESPONDENT]: No, your Honour. I have removed my contravention application.
HIS HONOUR: Well, you have, and I just needed to understand that. But you’re still here as the respondent to [the appellant’s] application, correct?
[THE RESPONDENT]: I understand. Yes.
HIS HONOUR: All right. So everyone knows you’re not prosecuting yours and I’m grateful for that, thank you. …
(Transcript 12 September 2023 p.5 line 1–12) (Emphasis added)
At that stage, all that appeared to remain for hearing was the appellant’s contravention application filed 28 October 2022. The matter was stood down for the parties to have some discussion and when the matter returned the following exchange occurred between the primary judge, counsel for the appellant, and the respondent:
[COUNSEL FOR THE APPELLANT]: Thank you, your Honour. Your Honour, the discussions were fruitful to an extent. My – on the basis that the [respondent] has provided to the court, which was filed yesterday, evidence of the assessment of her capital gains tax, my client’s instructions now are to withdraw, or for his contravention application filed in October 2022 to be dismissed.
HIS HONOUR: All right.
[COUNSEL FOR THE APPELLANT]: There is an outstanding issue, a loose end if I can put it that way, that remains alive in the background - - -
HIS HONOUR: Right.
[COUNSEL FOR THE APPELLANT]: - - - but is not the subject of a contravention or any application before the court.
HIS HONOUR: Is that something that I am seized of or [the original judge]?
…
[COUNSEL FOR THE APPELLANT]: And that is the reason that I raise this. It is not the subject of any application but it is an issue that has arisen from orders, multiple orders, that have been made.
HIS HONOUR: What - - -
[COUNSEL FOR THE APPELLANT]: There were orders made in August 2020 which related to the sectioning or the quarantining of, or, sorry, a stay. If I can draw your attention, your Honour, to funds that remain in a trust account.
…
HIS HONOUR: All right. Well, before we go any further, just in case we get lost in it, I should make an order now that all extant contravention applications between the parties be dismissed.
[COUNSEL FOR THE APPELLANT]: Thank you, your Honour.
HIS HONOUR: All right. And everyone happy for me to do that?
[THE RESPONDENT]: Yes, your Honour.
HIS HONOUR: All right. There will be an order, … made by consent this day, and it will capture everything just in case. So all extant contravention applications between these parties be dismissed.
(Transcript 12 September 2023, p.6 line 31 to p.7 line 44) (Emphasis added)
At that stage, there were no applications before the Court for determination but counsel for the husband raised what was referred to as a “loose end” relating to a sum of $35,000 that remained in a solicitor’s trust account. The primary judge was referred to the orders made by the original judge on 31 August 2020 and 20 November 2020. The relevant provision of the order made on 31 August 2020 is as follows:
8.There is a stay on the payment to the [appellant] as provided for in order 7(a) herein for the period up to and including 1 December 2020.
The relevant provision of the order made on 20 November 2020 is as follows:
3.Order 8 of the order made on 31 August 2020 is varied such that the stay on payment out to the [appellant] of the sum of $35,000 being part of the monies to be paid out to the [appellant] is extended until further order and to a date after the determination (or finalisation) of the [appellant]’s appeal filed 24 September 2020, and such monies shall remain in trust pending the outcome of the [appellant]’s appeal and subject to the determination (or finalisation), if any, of the appeal.
(Emphasis added)
The appeal filed by the appellant on 24 September 2020 (SOA 79 of 2020) was finalised on 21 May 2021, when the appeal was dismissed. In those circumstances, it is unclear what “loose end” required the Court’s intervention.
In any event, at the mention of the $35,000, there ensued assertions by the respondent that the original judge had made some comments about the use of the $35,000 being available for costs or “penalty” in relation to count 3. There was no evidence before the primary judge to support that assertion and the orders themselves do not support the respondent’s contention.
Nevertheless, and despite the primary judge noting that he had “just dismissed” the wife’s contravention application, the primary judge entertained the hearing of what sanction should be imposed against the appellant for his alleged contravention of count 3 and imposed a fine of $2,500.
Although it seems the primary judge intended to set aside or vary his order when he stated, “I am going to have to discharge that order that I did about all extant applications being dismissed” (Transcript 12 September 2023, p.19 lines 41–42), he did not do so.
An order “is made” during a hearing when it is pronounced.[5] The primary judge was functus officio.[6] The proceedings had been disposed of by the order dismissing the “respective contravention applications”. The primary judge had no jurisdiction to deal with the matter unless the order was set aside or varied, and it was not.
[5] The Rules r 10.19(1)(a).
[6] Cameron v Cole at 590; Harrell & Nesland (No. 2) (2021) 62 Fam LR 230 at [15]; Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76 at [15] cited in Department of Communities and Justice & Edwards [2023] FedCFamC1F 82 at [25].
While the primary judge was clearly attempting to assist the parties by finalising their long running dispute, the hearing, which proceeded over most of a day, was anything but orderly. It suffered from a number of the hallmarks of the hearing before the original judge which the previous Full Court described as “jumbled”.
There was, initially at least, resistance to the course proposed by the primary judge i.e., to determine the sanction issue, with the appellant submitting to the primary judge that the respondent’s contravention application (the subject of counts 3 and 5) had already been dismissed by the primary judge. The appellant further submitted that count 3 had not been listed for determination of an appropriate sanction but rather for a re-hearing. The following exchange then occurred between the primary judge and the appellant personally (despite him being represented by counsel):
[THE APPELLANT]: We went back before [the original judge] on the imposition of the penalties. That was the appeal that was unsuccessful.
HIS HONOUR: Yes.
[THE APPELLANT]: And [the original judge] said to me, “Well, [the appellant], if I ..... impose a penalty, because the appeal ..... successful on the basis there was a lack of procedural fairness.” And she said to me, “If I impose a penalty… you’re going to appeal it to the Full Court.” And I said, “Yes.” Because it would be the same issue about procedural fairness. So what she said – “I’m – because I’m going to refer this matter” – to [the primary judge]. So – so - - -
HIS HONOUR: You would probably – that was probably with you assessed. I’m happy to deal with it.
[THE APPELLANT]: Well, it’s referred to you for rehearing, so that was one of the contravention application that was dismissed today.
HIS HONOUR: Yes.
[THE APPELLANT]: That was the one that was withdrawn. That was – they were both referred to you for rehearing. …
(Transcript 12 September 2023, p.18 lines 22–43)
The respondent countered that she could not have withdrawn her contravention application in relation to count 3 as it had already been heard and submitted that it could not have been “remitted because it was already heard” and that the “penalty’s alive”.
The primary judge rejected the appellant’s contention that count 3 was before him for re-hearing, suggesting that the use of the term “re-hearing” by the original judge “might have been a bad word. It might be a hearing in respect of penalties”. Whether or not this speculation was correct, the order stood until set aside. It was not set aside. The primary judge stated that the finding made by the original judge that the appellant had contravened count 3 remained in full force and effect. The primary judge incorrectly, with respect, stated that the finding by the original judge in relation to count 3 had been “confirmed” by the Full Court. Any sanction imposed on the appellant, based on the finding made by the original judge, was always vulnerable on appeal given the findings made by the previous Full Court that the appellant had been denied procedural fairness.
As the hearing before the primary judge progressed, counsel for the appellant conceded that it “might” be the case that count 3 may have been referred by the original judge for a hearing in relation to what sanction should be imposed, (rather than re-hearing) and if that be the case, the appellant sought for the matter to be referred to the original judge for hearing.
The respondent opposed that course and submitted the matter should be finalised by the primary judge. The primary judge initially agreed that it was “probably proper that it go before [the original judge]” and that he was happy for it to go back to the original judge. The respondent pleaded with the primary judge to conclude the proceedings that day and the primary judge indicated that he was prepared to do so if both parties agreed.
The following exchange then occurred between counsel for the appellant and the primary judge:
[COUNSEL FOR THE APPELLANT]: Your Honour, and given my client’s indication that he’s happy for you to deal with the matter today - - -
HIS HONOUR: Yes.
[COUNSEL FOR THE APPELLANT]: - - - I then need to raise with you the ambit of my involvement in today’s proceedings and make an application to withdraw at this point.
HIS HONOUR: All right, and I’m very grateful for your assistance, because it was where there was contentious issues involving cross-examination, is the basis for section 102NA. [The appellant’s] content to make submissions to me personally…
[THE APPELLANT]: ... I am, your Honour. That’s fine.
HIS HONOUR: You seemed a little bit hesitant. [Counsel for the appellant] has done a good job for you but her appointment came within some limits. You are content to make the submissions to penalty yourself?
[THE APPELLANT]: Well, in the circumstances, yes, your Honour.
HIS HONOUR: All right. Very good. I will give you leave to withdraw and I would like to thank you for your assistance.
[COUNSEL FOR THE APPELLANT]: Thank you, your Honour.
(Transcript 12 September 2023, p.27 lines 22–46)
The hearing then proceeded with both parties representing themselves.
It is not clear what evidence the primary judge relied upon when considering what sanction to impose because the affidavits sought to be relied upon by each of the appellant and respondent had been “voided” i.e., not filed. It may have been that the voided affidavits were nevertheless intended to have been received into evidence, but neither were marked as exhibits.
The primary judge delivered brief ex tempore reasons on the day of the hearing and made the order the subject of this appeal.
The question arises whether, having regard to the eventual acquiescence of the appellant to the hearing before the primary judge in relation to the sanction issue, this Court should exercise its power to vary paragraph one of the order by dismissing count 5 only of the respondent’s contravention application.
The appellant opposes that course submitting that varying the order would not redress any injustice as between the parties because the prospect of success in relation to count 3 was remote given that the respondent had failed to establish that the delay in the transfer of the former matrimonial home to her (the subject of count 3) was as the result of the appellant’s delay in signing the transfer, rather than the existence of a caveat on the title by a third party.[7] The appellant further submits that the order is not amenable to variation pursuant to any of the provisions in r 10.13 of the Rules, and that, in any event, the appellant was pressured to participate in the hearing before the primary judge in relation to the sanction issue.
[7] Reliance was placed on alleged concessions made by the respondent as identified in [37] and [38] of the appellant’s summary of argument.
The Full Court considered the source of power for this Court in its appellate jurisdiction to correct an order at first instance in Gilles & Irby[8] (“Gilles”) and said:
12.… The question for us is whether the relevant power exists to correct the order of the court below. We have been unable to find any authority which deals specifically with that question, …
13.As has been seen, this Court’s power to correct slips or omissions of the type under discussion is not confined to power granted by the slip rule, but is also referable to what in other courts is referred to as their “inherent jurisdiction” but which in this Court must be found in “…powers expressly or by implication conferred by the legislation which governs it”. Of course, a power may not be granted by the Rules that does not have a foundation in those same express or implied legislative powers. Those powers are to be ascertained as “…a matter of statutory construction", noting that the court also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.
14.The High Court has made it clear that considerable caution needs to attend any assumption as to the implied powers which this Court might have: “[t]he Family Court does not have inherent powers. It has powers expressly conferred upon it by legislation and powers that may be implied from the terms of such legislation”. In Allesch v Maunz, the High Court, having confirmed that appeals to this Court are by way of rehearing, said:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. …
(Footnotes omitted) (Emphasis in original)
[8] (2016) FLC 93-687.
The Full Court proceeded to identify the statutory provisions in the Act (now located in s 32 of the FCFCA Act) creating the jurisdiction of the Court to determine appeals and, in particular, the discretionary power in what was then s 94(2) of the Act, “to affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance …” (now found in s 36 of the FCFCA Act - “to affirm, reverse or vary the judgment appealed from; … or give such judgment or make such order as, in all the circumstances, it thinks fit …”).
The Full Court went on to state in Gilles:[9]
16.In DJL v The Central Authority, it was held there was no power in the Full Court to re-open its orders after entry because “…no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the [Family Law Act 1975 (Cth) (the Act)]”. However, the power to correct accidental slips or omissions in orders is one of a narrow class of exceptions.
17.The context within which recourse to an implied power is sought is also important. In the case of the application of an implied power to correct accidental slips or omissions, “…[i]t may be trite, but it is worth repeating that the slip rule exists to avoid injustice”. The express words used within s 94(2) of the [Family Law] Act [now s 36 of the FCFCOA Act] of are redolent of wide power, but they are expressed as powers applicable “upon an appeal” and are used in juxtaposition to the power to order a re-hearing, quintessentially a remedy available only upon the establishment of appealable error. The passage earlier quoted from Allesch might be seen to pertain.
18.However, the essence of the appeal Court’s powers is to correct error so as to achieve justice. The essence of a court’s power to correct accidental slips or omissions is also to remedy manifest injustice. While the wide powers given to this appellate Court in, relevantly, s 94(2), [now s 36 of the FCFCOA Act] are ordinarily exercisable when “the order that is the subject of the appeal is the result of some legal, factual or discretionary error”, we incline to the view that the power to “make such decree or decision as, in the opinion of the court, ought to have been made in the first instance” carries with it an implied power to correct accidental slips or omissions in the order appealed which are necessary so as to permit the appellate Court to exercise the jurisdiction and powers conferred expressly upon it.
(Footnotes omitted)
[9] Gilles & Irby.
The power of the Full Court to correct accidental slips or omissions is a discretionary one, the purpose of which is ultimately to avoid injustice. Rule 10.13 (1) of the Rules sets out the circumstances in which the Court may vary or set aside an order. It provides as follows:
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the order; or
(h)there is an error arising in the order from an accidental slip or omission.
The appellant submits, and I accept, that at the time paragraph one of the orders dated 12 September 2023 were made, it did reflect the intention of the court, as seemingly confirmed by the parties. While there had been some confusion about the intention of the respondent in filing a Notice of Discontinuance in relation to part of her contravention application filed 22 January 2020, the confusion was, on the face of the record at least, resolved when the respondent:
(a)Informed the Court that she had “removed” her contravention application;
(b)Confirmed to the primary judge that she was present as a respondent (only) to the appellant’s contravention application;
(c)Did not demur when the primary judge noted that the respondent was not “prosecuting” her own contravention application; and
(d)Agreed with the primary judge that she was happy for all extant contravention applications between the parties to be dismissed.
It was not until after the order was made dismissing the contravention applications and there was a reference to the “loose end” of the $35,000 that the respondent arguably sought to withdraw her consent.
While it is apparent on the face of the record that the primary judge intended to vary the order, the basis upon which he might have done so it is not apparent. The primary judge was functus officio. In my view, the primary judge’s intention cannot of itself form the basis of an accidental slip or omission in the relevant sense.
If the party in whose favour the order was made, arguably in this case, the appellant, had consented, then the order could have been set aside or varied but that did not formally occur. I am not prepared to infer a consent in circumstances where it is apparent that the appellant was arguably a reluctant participant in the hearing before the primary judge.
Even if there were a proper basis to vary the orders made by the original judge on 30 August 2022 and by the primary judge on 12 September 2023, I would not exercise my discretion to do so in this case. I am not satisfied that this Court’s intervention is necessary to address any injustice as between the parties.
Ground one has merit, and the appeal should be allowed.
Ground two – procedural fairness
While it is perhaps unnecessary to consider the second ground; for completeness, I note that in the appeal against the finding of a contravention without reasonable excuse of count 5 of the parenting order and imposition of a sanction, the Full Court allowed the appeal on the ground that the appellant had not been afforded procedural fairness.[10]
[10] Dobbs & Dobbs at [33].
The Full Court relevantly found as follows (at [22]–[33] of the Full Court’s reasons):
(a)The original judge purported to concurrently hear many applications: contravention applications prosecuted against the [appellant] by the [respondent]; contravention applications prosecuted against the [respondent] by the [appellant]; and numerous other applications for consequential orders designed to facilitate the implementation of the final property order made on 15 February 2018;
(b)The hearings were heard over four days spread across several months;
(c)It was quite unclear what particular applications were the subject of attention by the original judge at any one point in time;
(d)The pending applications were given jumbled consideration;
(e)The appellant was denied a fair hearing for two fundamental reasons:
(i)The original judge did not follow the prescribed procedure or indeed any proper procedure for hearing contravention applications which entitled the appellant to, among other things, remain silent until the conclusion of the respondent’s evidence in support of her application;
(ii)The parties’ countervailing contravention applications should not have been heard together because neither party could be expected to simultaneously prosecute one case and defend another; and
(f)As a consequence of the unfair hearing, the appellant was improperly converted from the applicant to the respondent when the evidence filed in support of the contravention alleged by the respondent had not yet been either formally adduced or tested in cross-examination and the original judge reserved judgment without taking any submissions.
In my view, the hearing before the original judge of the alleged contravention in count 3 suffers from the same denial of procedural fairness as occurred during the hearing in relation to count 5. It follows that the appellant was not afforded procedural fairness by the original judge who made the finding of contravention without reasonable excuse. The sanction imposed by the primary judge was infected with the same denial of procedural fairness and cannot stand.
DISPOSITION
The appeal should be allowed and paragraphs 2 and 3 of the Order of 12 September 2023 should be set aside.
COSTS
The appellant seeks an order for costs against the respondent and, in the alternative, that he be granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
In circumstances where the respondent took no part in the appeal and the appeal succeeds on an error of law, we are not satisfied that there should be any order for costs. The appellant will however be awarded a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) for this appeal.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Carew & Campton. Associate:
Dated: 21 December 2023
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