Duarte & Morse (No 4)

Case [2024] FedCFamC1A 95

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,…

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AGLC
Duarte & Morse (No 4) [2024] FedCFamC1A 95
Case
[2024] FedCFamC1A 95
Decision Date

CaseChat Overview and Summary

The appeal in Duarte & Morse (No 4) was heard by Austin, Hartnett & Brasch JJ of the Federal Circuit and Family Court of Australia. The case involved a dispute between the appellant, Ms Duarte, and the respondent, Mr Morse, regarding final property settlement orders made in 2017 and subsequently remitted for rehearing in 2019. The appellant, who was also involved in a relationship with Mr Tolman during the litigation, appealed the final property settlement orders made in 2024 following the remitter. The appellant raised several grounds for appeal, including allegations of ostensible bias, procedural unfairness, and the assertion that the orders were ultra vires and invalid.

The court dismissed the appellant’s claims of ostensible bias against the retired judge who made the 2017 orders, finding that such claims were unfounded. The court also rejected the appellant’s dissatisfaction with the rehearing proceeding in her absence as insufficient to substantiate an allegation of apprehended bias against the primary judge. Complaints about procedural fairness were similarly dismissed. The court found that the appellant’s contention that the orders were ultra vires and invalid was without merit, as the primary judge validly exercised jurisdiction under the Family Law Act 1975 (Cth). The court further noted that the appeal did not genuinely involve constitutional matters and dismissed the appellant’s allegations of discretionary error for lack of elaboration.

The court also dismissed the application in the appeal, which sought to adduce further evidence, issue subpoenas, and discharge certain orders. The Full Court determined it had no power to re-open its final orders after their entry in 2019 and dismissed the application to discharge certain orders made by the Full Court in 2019. Finally, the court ordered the appellant to pay the respondent’s party/party costs of and incidental to the appeal, finding that the appeal was misconceived and should not have been brought.

The court's orders, dated 7 June 2024, dismissed the application in the appeal, the response to the application, and the further amended notice of appeal. The appellant was ordered to pay the respondent's party/party costs of and incidental to the appeal, fixed in the sum of $15,000. The form of the order was subject to entry in the Court’s records, and any minor typographical or grammatical errors could be reviewed or varied pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 22 of 2024

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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)