Duarte & Morse (No 4)
[2024] FedCFamC1A 95
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Duarte & Morse (No 4) [2024] FedCFamC1A 95
Appeal from: Morse & Duarte (No 5) [2024] FedCFamC1F 7 Appeal number: NAA 22 of 2024 File number: SYC 737 of 2014 Judgment of: AUSTIN, HARTNETT & BRASCH JJ Date of judgment: 7 June 2024 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where final property settlement orders made in 2017 (“the 2017 orders”) were remitted to the primary judge for rehearing on appeal in 2019 – Where the appellant wife appeals from final property settlement orders made in 2024 following the remitter – Where the appellant’s grounds complaining of ostensible bias against the retired judge who made the 2017 orders and not the primary judge are rejected as being absurd –Where the appellant’s dissatisfaction with the rehearing proceeding in her absence does not, of itself, sustain the allegation of apprehended bias of the primary judge – Where the appellant’s complaints of the denial of procedural fairness are rejected – Where the appellant filed a Constitutional Notice in the appeal – Where the appellant contends the appealed orders are ultra vires and invalid – Where the primary judge validly exercised jurisdiction and power under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) – Where the appeal does not genuinely involve a matter arising under the Constitution or its interpretation – Where the appellant does not elaborate on bare propositions of alleged discretionary error by the primary judge in her Amended Summary of Argument and they are rejected – Where the appellant complains the primary judge took into account the 2017 orders – Where the 2017 parenting were not set aside on appeal – Where the primary judge did not rely upon the 2017 parenting orders and did not err by considering evidence in respect of the spouses’ children, as demanded by the Act – Appeal dismissed – Where the respondent sought an order against the appellant for payment of his party/party costs of and incidental to the appeal – Where the appellant objected to any costs order being made against her – Where the appeal was misconceived and should not have been brought – Costs ordered in favour of the respondent on a party/party basis.
FAMILY LAW – APPLICATION IN AN APPEAL – Where the wife seeks four separate forms of interlocutory relief – Where the application to adduce further evidence in the appeal and to issue subpoenas is refused – Where the application to discharge orders not made by the primary judge is dismissed – Where absent resort to the use of the slip rule, the Full Court has no power to re-open its final orders after their entry in 2019 – Where the application to discharge certain orders made by the Full Court in 2019 is dismissed – Application in an Appeal dismissed.
Legislation: Commonwealth of Australia Constitution Act 1977 Ch III, s 51
Family Law Act 1975 (Cth) Pts VII, VIII, VIIIA, XIV, ss 4, 31, 39, 44, 65D, 71A, 75, 78, 79, 80, 81, 105, 106A, 109A, 109AA, 114 and 123
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Judiciary Act 1903 (Cth) s 78B
Real Property Act 1900 (NSW)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 11.1.7, rr 2.13,10.27, 13.23 and 13.34
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 60, 61, 64, 65 and 66
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 21 and r 32
Cases cited: Acheson & Begbie (No 2) [2024] FedCFamC1A 21
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1
Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3
Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Candlish & Pratt (1980) FLC 90-819; [1980] FamCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
DasreefPty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Dougherty v Dougherty (1987) 163 CLR 278; [1987] HCA 33
Duarte & Morse (2019) FLC 93-902; [2019] FamCAFC 93
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fisher v Fisher (1986) 161 CLR 438; [1986] HCA 61
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51
Mullanev Mullane (1983) 158 CLR 436; [1983] HCA 4
Marriage of Ravasini (1983) FLC 91-312; [1982] FamCA 62
Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20
Moliere & Van Wyk (1980) FLC 90-911; [1980] FamCA 85
Morse & Duarte (No 3) [2023] FedCFamC1F 35
Nevins & Urwin (2022) FLC 94-084; [2022] FedCFamC1A 57
Pera v Pera (2008) FLC 93-372; [2008] FamCAFC 87
R v Dovey; Ex parte Ross (1979) 141 CLR 526; [1979] HCA 14
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10
R Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
R v Ross Jones; Ex parte Beaumont (1979) 141 CLR 504; [1979] HCA 5
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Russell v Russell (1976) 134 CLR 495; [1976] HCA 23
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Woodland & Todd (2005) FLC 93-217; [2005] FamCA 161
Number of paragraphs: 103 Date of hearing: 30 May 2024 Place: Heard in Sydney, delivered in Newcastle The Appellant: Litigant in person Counsel for the First Respondent: Mr Richardson Solicitor for the First Respondent: Lander & Rogers The Second Respondent: Litigant in person (did not participate)
Table of Corrections 11 June 2024 In the last line of paragraph 58 “procedural fairness” has been corrected to read “procedural unfairness”. ORDERS
NAA 22 of 2024
SYC 737 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DUARTE
Appellant
AND: MR MORSE
First Respondent
MR TOLMAN
Second Respondent
ORDER MADE BY:
AUSTIN, HARTNETT & BRASCH JJ
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 10 May 2024 is dismissed.
2.The Response to an Application in an Appeal filed on 27 May 2024 is dismissed.
3.The Further Amended Notice of Appeal filed on 8 April 2024 is dismissed.
4.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $15,000.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duarte & Morse (No 4) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 11 June 2024
AUSTIN, HARTNETT & BRASCH JJ:
This is an appeal brought from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 18 January 2024 to adjust the property interests of the appellant wife (“the appellant”) and the first respondent husband (“the respondent”), which litigation also involved a second respondent (“Mr Tolman”).
The appeal is dismissed for the following reasons.
BACKGROUND
The appellant and the respondent began cohabitation in 2003, married in 2004, separated in 2013, and divorced in 2015.
The appellant met and formed a relationship with Mr Tolman in October 2013. A month later, in November 2013, they contracted to acquire a residential property (“the property”) and later registered the title to it in their joint names. At some indistinct later time, they separated and the appellant thereafter remained in occupation of the property.
Litigation between the appellant and the respondent in respect of their children and their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) was initially concluded by the delivery of judgment in December 2017. The appellant appealed from both the parenting and the property settlement orders but, in June 2019, only the appeal from the property settlement orders succeeded (Duarte & Morse (2019) FLC 93-902). The financial cause was then remitted for rehearing.
Upon remitter, pursuant to the parties’ agreement, Mr Tolman’s proprietary interest in the property was determined separately in January 2023. Mr Tolman was declared to have no proprietary interest in the property and he and the appellant were ordered to convey their joint title in the property into the sole name of the appellant (Morse & Duarte (No 3) [2023] FedCFamC1F 35). Neither the appellant nor Mr Tolman complied with that order.
During 2023, the litigation between the appellant and the respondent progressed gradually.
In March 2023, the proceeding was listed for its re-hearing in January 2024 and the primary judge made detailed directions to ensure the parties’ readiness for the trial.
In August 2023, the trial was brought forward by one week in January 2024. The appellant was not present at the Court event, but the orders put her on notice that her default in compliance with the procedural orders would risk the trial proceeding without her evidence.
In December 2023, the primary judge held a compliance hearing. Again, the appellant did not appear. By then she was in breach of the procedural orders made in both March 2023 and August 2023. As forewarned, the primary judge dismissed her Response and directed that she could not then file any evidence without the prior grant of leave to do so. The appellant made no subsequent application for leave to either revive her Response or to file affidavit evidence. The orders expressly acknowledged, however, there was no impediment to her attending the trial to cross-examine the respondent or to tender documents as exhibits. She also remained free to make submissions.
At about 11.35 pm on the evening before the trial commenced, the appellant emailed medical certificates to the primary judge’s chambers and asserted her unfitness to attend Court the following day. She objected to the trial proceeding in her absence. She also raised an issue of apprehended bias, but only in respect of an alleged association between the husband’s counsel and the judge who formerly determined the litigation in 2017, who has long since retired (“the retired judge”). The allegation of apprehended bias did not extend to capture the primary judge, who said this in the reasons for judgment in respect of those issues:
23.… In my view [the appellant] has provided no proper basis for adjourning the final hearing. There is no affidavit which annexed any compelling medical evidence. Her non-attendance at the compliance hearing on 8 December 2023 and her failure to file any material in relation to the final hearing commencing on 15 January 2024 indicate a failure to remain engaged with the process.
24.As to the mention of apprehended bias, this remains a mystery and had no relevance to the conduct of the trial.
25.It is apparent from the procedural history of this matter that [the respondent] has been denied the opportunity to present his case for property adjustment for an extremely lengthy period of time. I saw no basis to conclude from the [appellant’s] material that she has been denied any opportunity to present such case as she may have wished to make. I concluded that the trial should proceed as listed.
The trial proceeded on 15 January 2024 in the absence of both the appellant and Mr Tolman, given the primary judge was satisfied they had both been served with the respondent’s process well before the trial. Judgment was reserved and delivered three days later on 18 January 2024.
In summary, the primary judge made orders:
(a)requiring the appellant to vacate the property and provide vacant possession of it to the respondent (Order 1), who would then have exclusive possession of it (Order 3);
(b)permitting the issue of a warrant for possession of the property if the appellant fails to vacate the property (Order 2);
(c)apportioning liability for expenses related to the property between the parties according to the date upon which the respondent assumes possession of the property from the appellant (Order 4);
(d)requiring the respondent, the appellant and Mr Tolman to transfer the property into the sole name of the respondent (Order 5);
(e)requiring the sale of the property after the respondent assumes sole title to it (Orders 6, 7, 8 and 9) and the disbursement of the sale proceeds in certain priority (Order 10);
(f)fixing the appellant with the cost of any repairs to the property before its sale (Order 11);
(g)restraining the appellant from lodging a caveat or otherwise interfering with the sale (Order 12);
(h)declaring the right, title and interest of the appellant and the respondent in the net proceeds of sale disbursed to them under Order 10, items of personal property, and superannuation (Orders 13 and 14);
(i)requiring the appellant and the respondent to indemnify one another and release each other from any other claims (Orders 15, 16 and 17);
(j)directing the parties to implement the orders, in default of which the registrar is authorised to sign documents (Orders 19 and 21);
(k)reserving costs for 28 days (Order 22); and
(l)dismissing outstanding applications (Order 20).
Although styled as an order (Order 18), the primary judge noted the orders were intended to finally determine financial relations between the parties in accordance with s 81 of the Act.
By Notice of Appeal filed on 29 January 2024, the appellant appealed from all of those orders.
The appeal was resisted by the respondent.
Mr Tolman did not participate.
CONSTITUTIONAL NOTICE
On 28 February 2024, the appellant filed a Notice in the appeal pursuant to r 2.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), informing of her belief that the appeal raises a Constitutional issue, said to be the invalidity of certain powers found within the Act and the consequential invalidity of any orders made pursuant to the exercise of such powers. The appellant did not file any evidence proving her service of the Constitutional Notice upon the Attorneys-General of the Commonwealth and each State and Territory, as s 78B of the Judiciary Act 1903 (Cth) contemplates, and no Attorney-General gave notice of intended intervention in the appeal.
At the hearing, the appellant confirmed she had duly served the Constitutional Notice upon each Attorney-General and, save for the Attorney-General of the ACT, each had replied to her informing they took no interest in the Constitutional issues she raised. In respect of the failure by the Attorney-General of the ACT to reply, the appellant contended sufficient time to reply had elapsed and the appeal hearing should proceed. The respondent was prepared to proceed on the basis outlined by the appellant. In any event, as is explained below, the appeal does not genuinely involve a matter arising under the Constitution or its interpretation.
INTERLOCUTORY APPLICATION
On 10 May 2024, the appellant filed an Application in an Appeal seeking four separate forms of interlocutory relief: first, leave to adduce further evidence in the appeal; secondly, leave to issue subpoenas in the appeal, with a view to acquiring documents she anticipates will then be useful to adduce as further evidence in the appeal; thirdly, the discharge of the orders made in December 2017 which were not set aside in the appeal in June 2019; and fourthly, the discharge of certain orders made by the Full Court in June 2019.
The first application, which is to adduce the evidence within the appellant’s affidavit filed on 10 May 2024, is dismissed. The evidence the appellant relevantly sought to adduce was her further explanation for her failure to attend the trial in January 2024 and also the prior procedural hearings before the primary judge in August 2023 and December 2023, supported by more recent medical certificates than those she attached to her email sent to the primary judge’s chambers late in the evening before the trial in support of her adjournment application. The evidence simply emphasises the appellant’s feelings of anxiety and stress.
That evidence ought not be admitted in the appeal because its reception would tend to obliterate the distinction between original and appellate jurisdiction, it lacks substantial probative value, it would not help the appellant establish any appealable error, and it would therefore not likely have produced a different result (CDJ v VAJ (1998) 197 CLR 172 at [109], [111], [136], [140]-[151], [169] and [186.9]).
Nor should the appellant’s proposed further evidence articulating her complaint about the respondent’s amended claim for final relief be accepted. Aside from facts which are already discernible from the Court record and the material available in the appeal, the evidence is only otherwise the appellant’s commentary about the issue.
The second application, and the further evidence sought to be adduced by the appellant to explain it, relates to the supposed need to issue subpoenas to acquire documents in support of the grounds of appeal raising apprehended judicial bias and is dismissed for the reasons discussed in connection with those grounds.
The third application is dismissed because this is an appeal from orders made by the trial judge in January 2024 – not those made by the retired judge in December 2017. Those orders made in December 2017 which were not set aside on appeal by the Full Court in June 2019, being parenting orders, remain valid and operable unless and until varied pursuant to s 65D of the Act upon a fresh application brought in the Court’s original jurisdiction.
The fourth application is dismissed because, absent resort to the use of the slip rule, which has no application here, the Full Court has no power to re-open its final orders after their entry (DJL v Central Authority (2000) 201 CLR 226 at 242, 244, 248, 249, 263–264 and 291).
THE APPEAL
The current iteration of the grounds of appeal are found in the Further Amended Notice of Appeal filed on 8 April 2024.
The 17 grounds (comprising multiple sub-grounds) are pleaded over 14 type-written pages and are difficult to disentangle. Rather than dealing with them individually, we intend to address them collectively by the issues they raise. The complaints of apprehended bias and the denial of procedural fairness will be addressed first, as is required (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Apprehended Bias
Grounds 9A(b) and 9A(c) complain of the primary judge’s failure to apprehend the bias alleged by the appellant against the retired judge who first determined the proceedings in 2017. When asked to clarify the true meaning of the grounds, the appellant confirmed the complaint related only to the alleged ostensible bias of the retired judge and not that of the primary judge. The grounds can therefore be rejected as being absurd.
In the appeal brought from the 2017 judgment, the appellant’s claims of bias against the retired judge were rejected by the Full Court (Duarte & Morse at [57]–[91] and [125]–[128]). The same claims cannot now be revived in an appeal brought from an entirely different judgment pronounced years later by a different judge.
The nature of the appellant’s claim of bias was articulated as follows to the primary judge in the appellant’s email on 14 January 2024:
…Further, I object to the matter proceeding, due to apprehended bias arising from the [retired judge] [since] taking chambers [at named barristers chambers] alongside [the respondent’s counsel], the former and current trial barrister. …
As the primary judge said of that submission in the reasons for judgment:
24.As to the mention of apprehended bias, this remains a mystery and had no relevance to the conduct of the trial.
It is easy to see why the primary judge was flummoxed. The principle of apprehended judicial bias can only be called to aid to disqualify the judge before whom the proceeding is pending. The fact the respondent’s counsel may have had some form of professional association with the retired judge in 2024 by reason of their membership of the same barristers’ chambers, even if true, has no logical bearing upon the integrity and impartiality of the primary judge.
Neither the submission made to the primary judge, nor the submissions made in the appeal, come anywhere close to explaining how the asserted association between the retired judge and the respondent’s counsel might have led the primary judge to decide the case other than on its legal and factual merits, as is required to sustain a disqualification application (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345).
During the hearing, the appellant confirmed that Ground 9A (together with Grounds 9B, 9C and 9D) of the Further Amended Notice of Appeal were prepared for her by a solicitor. Indeed, that solicitor authored the part of the appellant’s Amended Summary of Argument which addresses those particular grounds. It is surprising the appellant’s solicitor made such bizarre allegations of bias, given the professional obligation of responsible advocacy (r 21 and r 32 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW); rr 60, 61, 64, 65 and 66 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)), but it is even more surprising when the same solicitor was recently reproved for making similar unfounded allegations in another appeal (Acheson & Begbie (No 2) [2024] FedCFamC1A 21 at [11]–[26], [90]–[93], [99], [132]–[134] and [137]–[141]). A mistake made once is a learning experience, but the same mistake made twice is either recklessness or obduracy. Either way, the solicitor must be at serious risk of professional censure.
The second aspect of the interlocutory application brought by the appellant was to secure leave to issue subpoenas to the retired judge, the respondent’s counsel, and the “proper officer” of the barristers’ chambers of which they are both allegedly members. The application could only be determined by the Full Court (r 13.34(1)(a) of the Rules) and, by reason of its recency, was listed for hearing in conjunction with the appeal.
The subpoenas are intended to elicit documents to prove the common chambers membership of the retired judge and the respondent’s counsel and the period over which their membership has coincided. According to the appellant’s supporting affidavit, she anticipates the documents will prove the “infirmity” of the parenting orders made by the retired judge in December 2017 “based on his Honour’s ties with [those chambers]”, which proposition is rejected. It must be remembered this is not an appeal from the orders made in December 2017. In any event, it is a matter of public record the retired judge retired from judicial office with the then Family Court of Australia in November 2018, nearly a year after the delivery of judgment in the proceedings between the parties in December 2017. Consequently, the retired judge could not have been a member of any barristers’ chambers before November 2018.
The appellant conceded the grant of leave to issue such subpoenas would have necessitated either an adjournment of the appeal hearing or at least the bifurcation of the hearing so the bias grounds could be determined in a second hearing after the subpoenas were answered. The dismissal of this aspect of the appellant’s application was foreshadowed at the appeal hearing. It would have been futile to grant leave for the subpoenas to be issued because procuring documents to prove the common chambers membership of the retired judge and the respondent’s counsel at any point since November 2018 could not possibly establish either an apprehension of the retired judge’s bias a year before in December 2017, nor an apprehension of the primary judge’s bias much later in January 2024. Two other factors militated against the grant of leave sought by the appellant: first, she conceded she could establish ostensible bias without the need to issue the subpoenas, which she anticipated would only furnish her with extra evidence to vindicate the point; and secondly, any adjournment or bifurcation of the appeal hearing would surely have caused disproportionate prejudice to the respondent.
It seems clear from both the appellant’s written submissions and her Application in an Appeal that she intends to try and re-visit the orders made in December 2017, though the premise upon which she intends to do so remains a mystery. The property settlement orders made in December 2017 were set aside and no longer exist. The parenting orders then made were affirmed on appeal and remain efficacious.
Any challenge to the parenting orders would require an application brought in the original jurisdiction of the Court. The appellant cannot collaterally challenge those orders in this appeal which lies from quite different orders (State of NSW v Kable (2013) 252 CLR 118 at [19], [32], [33], [38], [41], [56] and [57]; Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 393). The bald allegations of bias and fraud carelessly made in the appellant’s written submissions about judges, registrars and lawyers are nebulous and imprecise, which is to say nothing of their defamatory character. It is difficult to see how they could advance any claim to set aside or vary the parenting orders. We reject the appellant’s misconceived submission that we are now free in this appeal to interfere with those orders on the premise of her unproven and unspecific allegations of “fraud” committed by the retired judge and the respondent’s counsel by invoking the principles discussed by the High Court of Australia in Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165.
Ground 9D complains of an apprehension of the primary judge’s bias on account of, first, his Honour’s differential treatment of the parties’ default in compliance with procedural orders made in advance of the trial, secondly, refusing the appellant’s application to adjourn the trial, and thirdly, the perception of the primary judge’s deference to the retired judge on account of the primary judge formerly holding a judicial commission to a Court of inferior jurisdiction to the superior Court to which the retired judge was commissioned until retirement.
The last contention is rejected as being specious. The primary judge was appointed to the then Federal Circuit Court of Australia in January 2017 and then appointed to the then Family Court of Australia in March 2019, several months after the retired judge’s retirement in November 2018. There could be no question of the primary judge deferring to the 2017 judgment of the retired judge when it was set aside on appeal by the Full Court in 2019 – which is the very reason why the primary judge was re-hearing the financial cause.
The second contention is rejected because the primary judge explained the dismissal of the belated adjournment application in the reasons for judgment and no intelligible explanation is proffered by the appellant in the appeal for why that procedural decision was supposedly wrongly made, let alone how the decision might be the proper basis for a complaint of an apprehension of the primary judge’s bias. The appellant’s evident dissatisfaction with the primary judge’s refusal of the adjournment application does not, of itself, sustain an allegation of apprehended bias.
The first point is confined to a complaint of the appellant’s alleged denial of procedural fairness and is circular, as the appellant’s written submissions contend:
54.Ground 9D claims a failure, of the trial judge, to afford procedural fairness, to [the appellant], on the basis of the (apprehended) bias rule. …
The complaint of procedural unfairness is raised by other grounds, addressed next.
Procedural fairness
Grounds 9 and 9C(a) both complain of the appellant’s denial of procedural fairness, said to result from the following circumstances:
(a)the improper service upon the appellant of the respondent’s Amended Initiating Application, filed on 11 December 2023 (“the amended application”), leaving the appellant with insufficient time to respond to it;
(b)the failure of the respondent to serve the amended application upon the appellant’s children, who live with her at the property;
(c)refusing the appellant’s application to adjourn the trial;
(d)allowing the respondent to prosecute his application on an undefended basis;
(e)contamination of the proceedings due to the professional association between the respondent’s counsel and the retired judge; and
(f)the prejudicial effect of the orders.
We shall deal with those grounds and particulars sequentially, even though none is the subject of any submission in the appellant’s Summary of Argument.
During the hearing, the appellant sought but was refused permission to make oral submissions in support of Ground 9(f), given r 13.23(4) of the Rules forbade it due to the failure to address Ground 9 in the Summary of Argument. Upon the pronouncement of such refusal the appellant immediately applied for the presiding judge’s disqualification from further participation in the appeal on the grounds of pre-judgment. That application was also dismissed with reasons to follow, which are now succinctly given here.
The appeal was filed by the appellant on 29 January 2024 and was heard on 30 May 2024, so she had four months to be ready. Her appeal was amended in February 2024 and again in April 2024, so she had obviously given plenty of thought to the grounds of her appeal. The appellant filed her Summary of Argument within time in April 2024, but was granted the indulgence of permission to rely upon an Amended Summary of Argument which she filed several days after the due date, so she had also given plenty of thought to the submissions she intended to make in support of her grounds. Her written submissions were accompanied by the lengthy narrative and argument within the Constitutional Notice, the content of which also evinces an abundance of preparation. In the context of such careful preparation, assisted by a solicitor, it was not unreasonable to expect the appellant to confine her submissions to those heralded by the prolix grounds of appeal, the content of the Constitutional Notice, and her Amended Summary of Argument and to avoid straying into unchartered territory in oral submissions. We reject the appellant’s submission that such an expectation of the appellant’s adherence to procedural regularity betrayed pre-judgment which warranted the presiding judge’s disqualification for apprehended judicial bias against the appellant in respect of the substantive appeal, in the midst of the appeal hearing, in accordance with established principles (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345).
Returning then to the particulars which attend these grounds of appeal, first, there is no evidence to vindicate the allegation that the appellant’s service with the respondent’s amended application was “improper”. This contention was eventually abandoned by the appellant. The document was filed a month in advance of the trial and its service upon the appellant by the respondent’s solicitors very shortly thereafter was proven by affidavit. As the hearing began, the respondent’s counsel had this exchange with the primary judge:
[COUNSEL FOR THE RESPONDENT]: Thank you, your Honour. In addition to those materials, my instructing solicitor filed an affidavit towards the end of last week, I believe, the 12th of - - -
HIS HONOUR: Is this affidavit served?
[COUNSEL FOR THE RESPONDENT]: Yes. It has been served. It was filed 12 January. Your Honour, this affidavit simply covers procedural aspects of the provision of documents to the [appellant] and [Mr Tolman] that are relied upon in these proceedings and, so, for completeness, I would seek to read that affidavit.
(Transcript 15 January 2024, p.2 lines 11–20)
Understandably then, the primary judge found the evidence led by the respondent established the appellant and Mr Tolman had both “been served with all of [the respondent’s] material well before the final hearing” (at [21]). There is no reason to doubt the finding.
Secondly, the respondent was not obliged to serve his Amended Application upon the appellant’s young children (aged only nine and seven years) as they were not parties to the proceedings and had no proprietary interest in the property. It would have been anomalous had the respondent done so and it is rather extraordinary the appellant expected it.
Thirdly, no explanation is given for why it was procedurally unfair to dismiss the appellant’s application to adjourn the trial. The appellant’s reasons for the adjournment were taken into account and weighed against competing considerations, so the appellant was heard. This complaint is really about the correctness of the decision rather than the fairness of the process of deciding the application, mistaking the doctrine of procedural fairness, which is concerned only with the fairness of the hearing, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]).
But the decision to refuse the adjournment seems correct, or at least well open to the primary judge. No procedural fairness can flow from a correctly made interlocutory decision, even though an affected party may perceive the consequences as being disadvantageous. In essence, the primary judge concluded the respondent’s private interest and the wider public interest in finalising the long-standing litigation weighed more heavily than the appellant’s interest in prolonging it. It took more than three years for the financial cause to reach its re-hearing after being remitted following the successful appeal in June 2019. The application to adjourn the trial, made by an email sent late in the evening before it was due to commence, was too little too late. The appellant disobeyed trial directions and failed to file documents in readiness for the trial from a point many months beforehand.
The two medical certificates the appellant sent to the primary judge’s chambers were procured shortly before the trial and confirmed she was stressed, but most litigants find themselves in that predicament, particularly if self-represented. The medical certificates did not state how and why the appellant was unfit to attend Court for the trial. As the primary judge noted, the medical certificates were not verified by affidavit, so limited weight was reposed in them. Expert opinion evidence which neither exposes the facts and assumptions upon which it is based nor makes plain whether it is based wholly or substantially upon the expert’s own specialised knowledge attracts little weight, even if it meets the threshold for admissibility (DasreefPty Ltd v Hawchar (2011) 243 CLR 588 at [32]–[37], [42], [91]–[101], [120]–[124] and [128]–[130]).
The primary judge was obliged to ensure the proceeding was heard as quickly, inexpensively and efficiently as possible (s 67(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”). Given the lapse of more than three years since the cause had been remitted by the Full Court for re-hearing, it is unsurprising the adjournment application failed. Decisions about adjournments are pre-eminently interlocutory decisions on matters of practice and procedure which must often be made speedily. Avoidance of undue delay and the efficient use of public resources are considerations which may transcend the interests of the parties. The times are long gone when parties are left to control the course of litigation. The resolution of litigation serves the public as a whole, not merely the parties (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 189–190, 211–215, 217 and 227).
Fourthly, the respondent was permitted to prosecute his Amended Application because it was filed and served over a month before the trial started. The fact the respondent was granted leave long before, in March 2022, to file and serve any Amended Application within the next two weeks thereafter is not to the point. The respondent was not thereby prohibited from later filing an Amended Application and again seeking leave to rely upon it. Evidently, the primary judge granted him leave to rely upon the Amended Application at the trial. There can be no doubt it was open to grant such leave. The only question is whether the grant of such leave deprived the appellant of procedural fairness. It did not.
Although the Amended Application filed in December 2023 sought relief under Pt VIII of the Act in different terms, it was no less favourable to the appellant than the relief sought by the immediately preceding Amended Application, filed by the respondent in December 2019. The respondent still wanted the property recovered from the appellant and Mr Tolman, by the issue and execution of a writ of possession if necessary. However, whereas the respondent formerly wanted the property transferred to him exclusively, at trial he only wanted the property sold and the sale proceeds shared between himself and the appellant. There could be no procedural unfairness to the appellant by the respondent being permitted to prosecute an Amended Application which was more favourable to her than the application which preceded it.
Fifthly, the development of a professional association between the husband’s counsel and the retired judge by reason of their membership of the same barristers’ chambers could not have “contaminated” the proceeding heard and determined by the primary judge – at least in the absence of any sensible explanation as to how that was so. We have already addressed this issue above in respect of the complaint of apprehended bias within Ground 9A.
Lastly, the orders are not “prejudicial” just because the appellant dislikes them. The orders implement an adjustment of property between the appellant and the respondent in respective proportions of 30 and 70 per cent. Another ground of appeal attacks the orders on the basis of the proportional division being manifestly unreasonable or unjust, but that type of complaint concerns the validity of the result and is unrelated to this present complaint of the trial process being unfair.
Validity of statutory powers and orders
Grounds 1, 2, 3, 4, 5, 6, 7, 10, 11, 12 and 13 all contend that, for a variety of reasons, the property settlement orders are ultra vires and invalid.
Although the grounds are individually pleaded in intricate and confounding ways, the appellant consolidated her arguments in the Constitutional Notice in this way (excluding references to the “lack of natural justice” and “apprehended bias”, which we have already addressed above, and the miscarriage of discretion, which we are yet to address under another ground):
The orders under appeal purport to coerce the [appellant] to extinguish her freehold and beneficial interest in estate in fee simple in possession, and to coerce her to vacate possession of [the property].
…
The appeallant says that:
•Assuming the parties had not already ended their financial relations, the duty to finalise financial relations between the parties (FLA s 81) was not effectively carried out by the Court, because the declaration of right given in respect of the ultimate financial action ordered of the parties is ultra vires; but that even if that is not correct, the orders under appeal are:
•Ultra vires the provisions under which they were made; but even if they are not ultra vires,
•The orders are beyond the court’s duty to end financial relations (FLA s 81) and hence beyond its jurisidiction as financial relations were in fact already ended, at least in relation to the land, at the time the land was purchased in 2014; but that even if they are not,
•…
•…
•FLA sub-ss 79(1)(a) and (d) and s 114, or the orders made pursuant to those provisions, are impugned relative to the Constitution; but even if they are not invalid,
•The orders are nonetheless inoperative and invalid unless and until just terms are paid for to the appellant by the Commonwealth for (i) the land, or (ii) for the proportion of the appellant’s interest in the land traceable to the payment made by [third parties] to the vendors, or else (iii) for the proportion of the appellant’s interest in land traceable to the balance of the purchase price of the land which was funded by the sale of shares that were held in the first appeal to be the subject of a presumption of advancement in her favour; but that even if they are not,
•The enforcement orders are infirm so the orders fail.
…
Are sub-ss 79(a) and (d), and s114, and orders putatively made pursuant to them in relation to land duly registered pursuant to the RPA, void for breaching the Melbourne Corporation Principle and/or the concept of judicial power of the Commonwealth?
…
Orders were made that putuatively interfere with the [appellant’s] indefeasible land title. This title derives from a system known as Torrens Title. It is a system of title by registration, not registration of title: RPA ss 42, 43; Breskvar v Wall [1971] HCA 70 [15]; 126 CLR 376. The policy enacted by the RPA is to bring NSW lands into a system of land regulation governed by the concept of indefeasibility. This policy purports to be defeated by the orders. Furthermore, the orders purport to coerce [the appellant] to act contrary to her entitlements under the RPA, and to coerce her to transfer land by way of a gift beyond recall, in the absence of an intention to assign land, contrary to the requirement of the RPA. Indeed the orders purport to assign legal obligations to the [appellant] in circumstances where those obligations were not in existence prior to the making of the orders.
…
…Here, the orders purport to bind the [appellant] to break the law, and to institute new legal obligations. This is not judicial. In judicial power, the enforceable thing is the law operational upon facts. Here, the putatively enforceable thing is the orders once made but nothing prior. Hence the orders are legislative in character, i.e. arbitral. …
…
The principle established in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (‘Melbourne Corporation’) that the power of a State in its essential agencies (here, the NSW Land Registry) to carry on the business of the State (here, the business of land dealings) can not be impaired. Hence, the protection provided by s 42(1) RPA that land duly registered be ‘absolutely free’ must be regarded as essential to the efficient working of the business of the government of NSW relative to real property, and that power can not be impaired by an instrument of the Commonwealth (see Melbourne Corporation, 67 (Rich J)). By contrast, the orders do impair the NSW Land Registry. It matters not that it applies to one parcel of land. Once the policy of indefeasibility is cracked in relation to one parcel of land, it is cracked for all.
…
What the orders are doing then, is impermissibly breaching the Boilermaker’s Principle, also known as the separation of powers.
(As per the original) (Footnote omitted)
Doing our best to unravel the jargon, we impute the appellant’s points to be these, in descending order of abstraction:
(a)sections 79, 80 and 114 of the Act are not constitutionally valid because the powers prescribed therein:
(i)impermissibly purport to authorise the Court’s interference with legal rights established by State statute; or
(ii)are not truly an exercise of judicial power as required by the Constitution; but in any event
(b)even if the powers under ss 79, 80 and 114 of the Act are constitutionally valid, such powers cannot be:
(i)exercised when the parties have already voluntarily ended their financial relationships, thereby precluding the invocation of the Court’s duty under s 81 of the Act; or
(ii)used to deprive a party of existing property rights, unless and until the party is justly compensated for the rights forfeited under the orders.
In addressing the appellant’s complaints, it is best to start with the authorities she cites in supposed support of her position.
At its very widest, Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 stands for the principle that the Commonwealth Parliament cannot exercise its legislative power under s 51 of the Constitution to enact statutes which control or hinder State institutions in the proper exercise of their governmental functions.
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 established that federal judicial power vested in courts under Chapter III of the Constitution is sacrosanct and cannot be diluted by functions which do not conform with the characteristics of judicial power, such as those akin to administrative, arbitral, executive or legislative power.
In reliance upon those entrenched truisms, the appellant submits that the property adjustment orders and injunctions made by the primary judge under the Act impermissibly compel the NSW Land Registry (“the State agency”) to alter the State land title register by removing her recognition as legal proprietor of the property, which thereby impairs or hinders the State agency’s exercise of duties and functions under the provisions of the Real Property Act 1900 (NSW) (“the State Act”), in which event the orders are invalid. The argument is rejected.
The indefeasible title to land enjoyed by a registered proprietor is not absolute, but subject to many exceptions. For example: writs may be executed to ensure the sale of real property to satisfy the registered proprietor’s judgment debt to a creditor; real property may be transferred to the trustee of the registered proprietor’s bankrupt estate; a mortgagee may exercise power granted under a mortgage to sell an encumbered property to satisfy the mortgagor’s secured debt upon default; and persons in long-term possession of property may apply for and be granted possessory title to the land, notwithstanding the proprietor’s registered status.
The indefeasibility of the appellant’s registered title to the property is not genuinely in issue when such title is altered by an order made under the Act. Relevantly for present purposes, an order made under Pt VIII of the Act granting title in real property to the respondent may be enforced by: first, the grant of warrants for the seizure of possession of the property (ss 105, 109A, 109AA and 123 of the Act; Div 11.1.7 of the Rules), as has apparently already occurred; secondly, empowering the Court registrar’s execution of a transfer to convey the property from the registered proprietors, being the appellant and Mr Tolman, to the party who benefits from the property settlement order, being the respondent (s 106A of the Act); and lastly, the lodgement of the transfer with the State agency for registration under the State Act. The State agency’s exercise of power under the State Act is thereby neither impaired nor hindered. Rather, its exercise of power is entirely in conformity with the State Act once the transfer is lodged for registration per force of the Court order.
There can be no doubt at all about the constitutional validity of the provisions contained within Pt VIII and Pt XIV of the Act. The “marriage” power under s 51 of the Constitution extends the legislative power of the Commonwealth Parliament to enable laws to be made with respect to the property of the parties to a marriage (R v Ross Jones; Ex parte Beaumont (1979) 141 CLR 504 at 519; Russell v Russell (1976) 134 CLR 495 at 509–510, 524–525, 538 and 547). The Act is the embodiment of the exercise of such legislative power.
Formerly, by the combined effect of s 31(1)(a) and s 39(1) of the Act, the Court had jurisdiction in any “matrimonial cause” (R Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 196 and 208). That remains the case, though s 31(1)(a) of the Act has since been repealed and replaced by counterpart provisions of the FCFCA Act, as was explained in Nevins & Urwin (2022) FLC 94-084 at [15]–[22]).
Different types of “matrimonial cause” afford jurisdiction. For present purposes, the Act defines a matrimonial cause (s 4(1)) to include these:
(ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(ii)in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii)in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or
…
(e)proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB); or …
The first of those causes is the foundation for the invocation of power under Pt VIII of the Act to make property settlement orders and the second of those causes is the foundation for the invocation of power under s 114(1) of the Act to make injunctions.
The power to make an order under Pt VIII, but more specifically under s 79 of the Act, is independent of the existence of an obligation owed by one spouse to another either at law or in equity, since the order is not made in satisfaction of a cause of action, but rather in the exercise of a discretion, and any contractual or equitable obligation neither merges in nor is extinguished by the discretionary order (Dougherty v Dougherty (1987) 163 CLR 278 at 293–296). Once proceedings are within the Court’s jurisdiction, whether the Court makes an order within its power is a matter of discretion (R v Dovey; Ex parte Ross (1979) 141 CLR 526 at 534).
Spouses’ property is susceptible to division between them and their children by order made under s 79 of the Act to satisfy their respective discretionary claims (Dougherty v Dougherty at 295–296; Fisher v Fisher (1986) 161 CLR 438 at 457). The concept of “settlement” of property under s 79 of the Act carries a wider meaning than simply the alteration of spouses’ interests in property (Mullane v Mullane (1983) 158 CLR 436 at 443–445).
There are, however, limitations upon the exercise of discretionary power. No order for the settlement of property under s 79 should be made unless the Court is satisfied it is just and equitable to make the order (Stanford v Stanford (2012) 247 CLR 108 at [22] and [35]). It is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying the existing legal and equitable property interests of the parties (Stanford v Stanford at [37] and [50]). It must not be assumed the parties’ rights to or interests in property are or should be different from those that then exist (Stanford v Stanford at [38] and [50]). Nor should it be assumed one party has the right to have property divided between them by reference to the considerations set out in s 79(4) of the Act (Stanford v Stanford at [40]), as there must be a principled reason for interfering with the spouses’ existing legal and equitable interests (Stanford v Stanford at [41] and [43]).
Any orders made in conformity with those legal principles are valid and enforceable against the parties bound by them because they are made pursuant to the exercise of statutory judicial power. Such power is neither administrative, arbitral, executive nor legislative in character. Contrary to the appellant’s submissions, the doctrinal separation of powers – being the constitutional separation of power between the legislative, executive and judicial branches of government (Harris v Caladine (1991) 172 CLR 84 at 161–164) – has no present application.
The appellant’s assertion of the parties’ severance of their financial relationship is no more than the statement of her belief that she and the respondent went their separate ways in 2013, by selling their former matrimonial home, sharing the net sale proceeds, and her using her share to partly fund her acquisition of the property with Mr Tolman. The proceeds realised on the sale of the former family home were consensually released to the appellant and the respondent only to avert the prospect of the appellant and Mr Tolman defaulting on the purchase of the property in March 2014 (at [59]).
Even if the appellant genuinely believed her agreement with the respondent to the early release of the net proceeds realised on the sale of the former family home conclusively ended their financial entanglement, the respondent did not share her belief. He lodged a caveat on title to the property and commenced proceedings against the appellant seeking financial relief under Pt VIII of the Act in May 2014, having already commenced parenting proceedings under Pt VII of the Act in February 2014. Regardless, the parties’ subjective beliefs or intentions were not decisive of the financial dispute.
The commencement of the cause of action for financial relief under Pt VIII the Act in May 2014, well before the appellant and the respondent were divorced in 2015, was brought within time (s 44(3) of the Act). The institution of that cause validly invoked the Court’s original jurisdiction, which could not then be ousted by anything other than a binding financial agreement made under Pt VIIIA of the Act (s 71A), as has been authoritatively explained (Thorne v Kennedy (2017) 263 CLR 85 at [16]–[21]).
But there was no binding financial agreement. The facts and circumstances surrounding the spouses’ division and use of the net proceeds realised on the sale of their former matrimonial home in late 2013 were not such as to oust the Court’s jurisdiction under Pt VIII of the Act, though evidence of such facts and circumstances was liable to influence the ultimate exercise of discretion by the primary judge as to what outcome would be just and equitable (Thorne v Kennedy at [56]; Bevan & Bevan (2013) FLC 93-545 at [120]; Woodland & Todd (2005) FLC 93-217 at [24]–[39]; Candlish & Pratt (1980) FLC 90-819). His Honour did take such evidence into account (at [55]–[60]).
When the primary judge pronounced judgment in the financial cause on 18 January 2024, his Honour was validly exercising jurisdiction and power under Pt VIII of the Act. In so doing, the primary judge was exhorted by s 81 of the Act to, as far as practicable, make orders to finally determine the financial relationships between the spouses, as his Honour duly did and noted.
Allowing for the anterior findings made about the spouses’ existing property interests, the primary judge found the appellant held 69 per cent of their wealth (at [43]) when she was justly and equitably entitled to retain only 30 per cent (at [62], [71] and [72]). To accommodate those findings, the parties’ property rights were then adjusted by the appealed orders.
The appellant’s complaint about not being justly compensated for the forfeiture of her proprietary interest in the property is misconceived. Section 51(xxxi) of the Constitution enables the Commonwealth Parliament to make laws with respect to “the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws”, but that is an inviolable guarantee of the payment of just compensation to the owner of property which is compulsorily acquired by government (ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at [43], [81]–[86], [131]–[135], [175]–[179] and [185]–[193]). The adjustment of spouses’ property rights by an order made under Pt VIII of the Act is a quite different concept from an “acquisition” of their property by a Federal or State government.
The appellant furthermore argued that two orders made by the primary judge in supposed reliance upon s 78 of the Act (Orders 13 and 14) were invalid as they were not declarations of the parties’ existing property interests, which is the solitary purpose of s 78 of the Act.
Orders 13 and 14 declared the spouses to be solely entitled to the money apportioned to them from the sale proceeds of the property under the preceding orders, together with other items of personal property and superannuation they then possessed. Orders 15 and 16 also declared the spouses to be individually liable for, and must indemnify the other against, their own debts.
In truth, such orders were more likely made pursuant to the power reposing in ss 80(1)(a), 80(1)(f), 80(1)(i), 80(1)(k) or 114(1)(e) of the Act, because the orders prescribed what property and debts the parties would thereafter have – not their existing property and debts, before the adjustment orders were made.
However, any mistaken reliance upon s 78 of the Act to make such orders makes no difference. The citation of an incorrect source of power is immaterial if the orders are still supported by a valid power (Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [124]; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at [34]; Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [175]). In determining the category into which orders fall, it is more important to consider their substance rather than their form (Mullane v Mullane at 444). The power to make the appealed orders was afforded by ss 79, 80 and 114(1) of the Act.
The appellant also argued that the ancillary orders which enable the implementation and enforcement of the property settlement orders are invalid, but that proposition is also rejected. The Court is invested with power to make such consequential orders (Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 342 and 351–354; Pera v Pera (2008) FLC 93-372 at [58]–[62]; Marriage of Ravasini (1983) FLC 91-312; Moliere & Van Wyk (1980) FLC 90-911). The Act and Rules also expressly empower enforcement orders (ss 105, 109A, 109AA and 123 of the Act and Div 11.1.7 of the Rules) and orders directing a registrar to sign documents on behalf of recalcitrant parties (s 106A of the Act).
Discretionary error
Ground 8 alleges the primary judge’s discretion miscarried because: first, a selection of the orders are unenforceable; secondly, the primary judge did not take into account or give sufficient weight to certain aspects of the evidence; and thirdly, a selection of the orders are not just and equitable.
This ground is not the subject of any submission in the appellant’s Amended Summary of Argument to elaborate the bare propositions. We do not intend to delve into the intricacies of the ground if the appellant did not deign to do so. It is rejected.
Legal error
Ground 9A(a) alleges the appealed orders are vitiated by the primary judge’s reliance “on the orders” made by the retired judge in December 2017. The property settlement orders made by the retired judge were set aside on appeal by the Full Court in June 2019. The only orders not set aside on appeal were the parenting orders, which must therefore be the orders to which this ground refers.
In re-hearing the financial cause, the primary judge did not “rely” upon the 2017 parenting orders, but did take into account evidence in respect of the spouses’ children, as demanded by the provisions of ss 75(2), 79(4)(d), 79(4)(e), 79(4)(f) and 79(4)(g) of the Act. The respondent is the sole carer for the children (at [65] and [69]) and he receives minimal child support from the appellant to help maintain them (at [67]), which influenced the adjustment made in the respondent’s favour (at [71]). There was no error.
Miscellaneous errors
Ground 9B alleges the primary judge erred by making procedural orders on 8 December 2022 to the appellant’s disadvantage, but there was no error. The orders then made dismissing the appellant’s Response and precluding her from belatedly filing evidence without anterior permission to do so were expressly enabled by rr 10.27(1)(a), 10.27(1)(e) and 10.27(1)(g) of the Rules on account of her failure to comply with the preceding procedural orders made in March 2023 and August 2023 to ensure the readiness of the proceedings for trial. As those orders made plain, she could apply for leave to circumvent the orders and, even if she chose not to, she was still free to participate in the trial by tendering exhibits, by cross-examining the respondent, and by making submissions.
Although impelled to admit Ground 9B does not explicitly say so, the appellant contended in the appeal that it implicitly complains of “jurisdictional error”. We reject the proposition. No jurisdictional error is evident from the primary judge permissibly making a rational procedural decision within the ambit of the Rules. The appellant eschewed the opportunity to seek relief from the orders in the terms they permitted.
Grounds 9C(b) and 9C(c) allege the primary judge erred by proceeding with the trial on 15 January 2024 in the appellant’s absence for two reasons: first, the respondent’s counsel failed to advise of, and thereby misled the primary judge about, his professional association with the retired judge (Ground 9C(b)); and secondly, the primary judge allowed the trial to proceed “in a manner beyond the conferral of jurisdiction” (Ground 9C(c)).
How the primary judge could have fallen into appealable error by reason of an error of the sort attributed to only the advocate is far from clear. In any event, the first complaint has been answered in respect of the apprehended bias complaints. It is baseless.
The second complaint of the primary judge acting beyond jurisdiction is rejected for reasons explained in respect of the Constitutional complaints. We also reject the submission that the primary judge’s decision to permit the respondent’s reliance at trial upon his Amended Initiating Application filed in December 2023, after her Response had been dismissed, was “beyond the conferral of jurisdiction”.
DISPOSITION
The appeal is dismissed.
Assuming dismissal of the appeal, the respondent sought an order against the appellant for the payment of his party/party costs of and incidental to the appeal, which he modestly assessed at $15,000.
The respondent sought such costs on the basis the appeal was “wholly unsuccessful”, whereas the appellant resisted the costs order principally on account of her asserted poor financial circumstances. She was also critical of the respondent’s conduct of the appeal in two respects: first, she contended his Summary of Argument failed to properly engage with the grounds of appeal she prosecuted; and secondly, he had moved to enforce the appealed orders against her whilst the appeal was pending.
As to the appellant’s financial circumstances, her income may be meagre, though she is entitled to 30 per cent of the property divided between her and the respondent, which equates to about $640,000 on the net value of the property found by the primary judge (at [33]). Even ignoring add-backs, superannuation, and family loans, it still equates to about $410,000. The dismissal of the appeal necessarily means the grounds of appeal lacked merit, so the appellant’s complaint about the quality of the respondent’s written submissions misses the point, and there was nothing improper about the respondent enforcing the appealed orders when they were not stayed.
The most compelling consideration is that the appeal was completely misconceived and should not have been brought. The respondent has been put to considerable expense defending the judgment and should have his party/party costs as partial recompense, which we accept is fairly assessed in the quantum of $15,000.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Hartnett & Brasch. Associate:
Dated: 7 June 2024
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