Forster and Forster (No 3)
[2012] FamCAFC 214
FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER (NO. 3) | [2012] FamCAFC 214 |
| FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – where the applications and the appeals were adjourned until after delivery of judgment by the Full Court in the appeal filed by the husband whereby the Public Trustee for the State of South Australia was appointed as the Litigation Guardian for the husband – where the Full Court made orders allowing the appeal and setting aside the orders appointing the Litigation Guardian – where the issue now is whether the final parenting, the final property settlement orders and the costs orders are void or voidable – where if the orders are voidable to which court should an application be made to set them aside – where if an application is made should that be an application to set aside the orders consequential upon the decision of the Full Court, or, in relation to the property settlement orders, should it be an application pursuant to s 79A of the Family Law Act 1975 (Cth) – where if the husband does not seek to set aside the orders should the appeals he seeks to pursue against them be allowed to proceed – where if the order that the husband pay the costs of the Litigation Guardian is void then it cannot be enforced or relied upon, but if it is voidable, or neither void nor voidable, should the husband still be required to comply with it – where, if the property settlement orders are voidable, what should be done with the husband’s appeal against the orders made by the Federal Magistrate on 22 June 2010 refusing a stay of the orders for property settlement and by way of enforcement – where the orders made here are voidable – where it should now be up to the husband to leave the orders in place or seek to set them aside – where the application to extend the time to file an appeal against the parenting orders made on 16 March 2009 is dismissed in any event – hearing to be conducted to address issues that flow from the finding that the orders are voidable. |
| Family Law Act 1975 (Cth) s 79A, s 79(1)(a) Judiciary Act 1903 (Cth) s 40 |
| Balloqui v Balloqui [1963] 3 All ER 989 Cuza and Cuza (1986) FLC 91-721 DMW & Anor v CGW (1982) 151 CLR 491 Ex parte Brocklebank; In re Brocklebank (1877) 6 Ch. D 358 Mewburn v Mewburn (1934) 51 WN (NSW) 170 Re Macks and Ors; Ex parte Saint (2000) 176 ALR 545 Residual Assco Group Ltd v Spalvins and Ors (2000) 172 ALR 366 Willshire & Willshire [2009] FamCAFC 130 |
| APPLICANT: | Mr Forster |
| RESPONDENT: | Ms Forster |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBERS: | SOA SOA | 44 & 46 60 | of of | 2010 2012 |
| DATE DELIVERED: | 19 December 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 28 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 March 2009 23 April 2010 |
| LOWER COURT MNC: | NA – consent orders [2010] FMCAfam 395 [2011] FMCAfam 1310 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mrs West |
| SOLICITOR FOR THE RESPONDENT: | Catherine Hicks & Co |
Orders
The application to extend the time to file an appeal against the parenting orders made on 16 March 2009 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Numbers: SOA 44 & 46 of 2010; SOA 60 of 2012
File Number: ADC 3359 of 2007
| Mr Forster |
Applicant
And
| Ms Forster |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter has a lengthy and somewhat convoluted procedural history, and there are a number of applications and appeals that are before me. They are:
SOA 44 of 2010
a)Paragraph 1 of the amended application in an appeal filed by the husband on 27 July 2010 seeking an extension of time to file an appeal against final parenting orders made on 16 March 2009, and final property settlement orders made on 23 April 2010 by Federal Magistrate Lindsay.
SOA 46 of 2010
b)The Notice of Appeal filed on 14 July 2010 against orders made by Federal Magistrate Lindsay on 22 June 2010 refusing a stay of the orders for property settlement made on 23 April 2010 and by way of enforcement of those orders.
c)An application in an appeal filed on 10 August 2010 seeking an extension of time to file a draft appeal index in relation to the Notice of Appeal filed on 14 July 2010.
SOA 60 of 2012
d)The Notice of Appeal filed on 13 August 2012 but dated and sent to the Appeal Registry on 3 January 2012 against the orders made by Federal Magistrate Lindsay on 6 December 2011.
On 24 September 2010 the applications and the appeal referred to in sub-paragraphs a), b) and c) above were all adjourned until after the delivery of judgment by the Full Court in the appeal filed by the husband against the orders made by Federal Magistrate Lindsay on 8 October 2008, 19 December 2008 and 16 March 2009, whereby the Public Trustee for the State of South Australia was appointed as the Litigation Guardian for the husband.
That appeal was heard by the Full Court on 16 February 2012, reasons for judgment were delivered on 23 March 2012, and orders were made allowing the appeal and setting aside the orders appointing the Litigation Guardian.
With the Notice of Appeal forwarded to the Appeal Registry on 3 January 2012, that Notice was not accepted for filing because until 6 January 2012 the Litigation Guardian was still in place and it could not be filed by the husband personally. However, on 16 December 2011 the appointment of the Litigation Guardian was discharged by order of the Federal Magistrate with effect from
6 January 2012, and thus, the Notice of Appeal could have been filed by the husband as on and from 6 January 2012, subject to the time for filing being extended. There was also the circumstance that the appeal against the orders appointing the Litigation Guardian was still pending. In any event, subject to my subsequent comments as to the appropriate process, it is an appeal that should be able to proceed in the interests of justice, and I would propose making an order extending the time for filing if that appeal is to be pursued. I observe that at the hearing of the matter the wife’s counsel indicated that the wife did not oppose an extension of time being granted if necessary.
The issues
The first issue for consideration following the decision of the Full Court is whether the final parenting and the final property settlement orders are void or voidable.
The Full Court has determined that the Federal Magistrate erred in appointing a Litigation Guardian and set aside those orders. However, the parenting orders and the property settlement orders were made when the Litigation Guardian was in place. The Litigation Guardian consented to the parenting orders and the Litigation Guardian conducted the trial on property settlement. I also observe that there were proceedings pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) instituted on 17 June 2010 and conducted by the Litigation Guardian which resulted in the orders for property settlement being slightly varied on 1 October 2010.
The same issue arises in relation to the order made by the Federal Magistrate on 6 December 2011 that the husband pay the wife’s costs of and incidental to the property settlement proceedings fixed in the sum of $40,000. The proceedings which led to that order were conducted by the Litigation Guardian.
The second issue is that if the orders are voidable, to which court should an application be made to set aside those orders. That issue has been created by the decision by the Federal Magistrate to transfer the entire proceedings to the Family Court of Australia. I am sorely tempted to transfer them back; that would then solve this issue, but that would not be fair on the parties.
The third issue is whether, if there is to be an application made should that be an application to set aside the orders consequential upon the decision of the Full Court, or, in relation to the property settlement orders, should it be an application pursuant to s 79A of the Act.
The fourth issue is whether, if the parenting, property settlement, and costs orders are voidable but the husband does not seek to set aside those orders, the appeals that he seeks to pursue against them should be allowed to proceed. I observe that there is a discrete issue in relation to the proposed appeal against the final parenting orders which might in any event prevent that appeal from proceeding, but I will come to that later in these reasons.
The fifth issue is the effect of the Full Court decision on the order made on
6 December 2011 that the husband pay the costs of the Litigation Guardian. If the order is void then it cannot be enforced or relied upon, but if it is voidable, or indeed if it is neither void nor voidable, should the husband still be required to comply with that order.
I must say that I am particularly concerned that the Federal Magistrate proceeded to hear and determine the costs applications given the fact that at the time the appeal by the husband against the orders appointing the Litigation Guardian was still pending. In my view the Federal Magistrate should not have embarked upon these hearings and to do so has caused significant unnecessary complications.
The sixth issue, which of course is also dependent upon the resolution of whether the property settlement orders are void or voidable, is if they are voidable what to do with the appeal filed against the orders made on 22 June 2010.
Discussion
Void/Voidable
Neither the husband nor counsel for the wife were able to cite any authority to this court in relation to this issue. Further, my research has not provided any direct authority that is of any assistance.
I observe that before the Full Court the husband sought that the orders made be set aside. The Full Court correctly declined to address this issue on the basis that the same was not in fact before that court.
If the orders are void then they are of no effect and they cannot be enforced or relied upon. In those circumstances the entire proceedings would need to be commenced again. On the other hand, if the orders are voidable then they are valid and have full legal effect unless and until they are set aside by court order.
There are a number of authorities addressing the effect on an order made by a court, or indeed the proceedings themselves, where there should have been a Litigation Guardian or an equivalent appointed.
It is well established that in those circumstances the non-appointment of a Litigation Guardian or equivalent is merely an irregularity and does not render the order or the proceedings void (Cuza and Cuza (1986) FLC 91-721; Mewburn v Mewburn (1934) 51 WN (NSW) 170). However, that can often be because the other party has waived the requirement (Ex parte Brocklebank; In re Brocklebank (1877) 6 Ch. D 358) or because the relevant rules of court provide that non-compliance does not render the proceedings void unless the court so directs (Balloqui v Balloqui [1963] 3 All ER 989). That is quite a different situation than the one confronting the court here, and thus these decisions are of little or no assistance.
More relevantly, there are also cases where a Litigation Guardian or equivalent is later removed. It is beyond doubt that the removal operates from the date of the order for the removal, and accordingly the removal does not of itself invalidate anything done by the Litigation Guardian prior to his or her removal. Again though, there is a difference, because a removal usually occurs when it is established that the person under a disability no longer requires a Litigation Guardian. However, it is open to a court to remove a Litigation Guardian where it is established that the Litigation Guardian has acted contrary to the interests of the person, or that he or she has conducted the litigation improperly, or that the action is not for the benefit of the person. Here it seems the principle is no different as to when the removal operates from, and this provides a basis for finding that orders made in the circumstances of this case are voidable rather than void.
There are also other indications that that is the correct position. For example, the obligation on a Litigation Guardian or equivalent is to act in the interests of the infant or the person with the disability, and it is not the case that a compromise or settlement made by a Litigation Guardian is necessarily void
ab initio, but an application needs to be brought to set aside that compromise or settlement, and the court will then adjudicate on the same.
I also take comfort from comments made by the Full Court in Willshire & Willshire [2009] FamCAFC 130. That was a case where the husband filed an application seeking, in effect, leave to appeal against an order appointing a Case Guardian for him, and also against final property settlement and parenting orders made by consent (of the Case Guardian). In the context of discussing the husband’s appeals, the Full Court proposed to deal with the husband’s appeal against the appointment of a Case Guardian first, saying:
45.… If we allow this appeal then that would provide a possible basis to set aside the orders made on 5 June 2008. However, if we dismiss the appeal it follows that the husband would not be in a position to challenge the orders made on 5 June 2008 and thus the appeal against those orders would be dismissed. (My emphasis)
The Full Court, having concluded that there was no merit in the husband’s appeal against the appointment of a Case Guardian, found that as the Case Guardian was validly appointed and the husband had not brought an application to remove or replace him, and given there was no medical evidence that the husband was capable of understanding the nature or possible consequences of the case, the consent of the Case Guardian bound the husband and finalised the matter. The appeal was thus dismissed.
However, it is what the Full Court said would be the case if the appeal was allowed that is of importance here; in other words, “that would provide a possible basis to set aside” the consent parenting and property settlement orders.
It seems to me that it is logical that the orders made here should be voidable rather than void as a result of the decision of the Full Court. The parenting orders were consented to by the Litigation Guardian and the property settlement and costs orders were made after hearings conducted by the Litigation Guardian. The Full Court has determined in effect that there was no proper basis for the appointment of the Litigation Guardian and the husband should have been permitted to conduct the proceedings himself. Thus, it can be said that it should now be up to the husband to either adopt those orders by leaving them in place or to seek to set them aside.
Thus, in all the circumstances I find that the consent parenting order made on 16 March 2009, the property settlement orders made on 23 April 2010 (as varied by the order made 1 October 2010), and the costs order made on
6 December 2011 in favour of the wife are voidable rather than void.
With the order made on 6 December 2011 that the husband pay the costs of the Litigation Guardian, I also consider that that is voidable and not void. The Litigation Guardian did incur legal costs, and it seems to me that whether they should still be paid is an issue that needs to be the subject of further consideration by a court.
Application to set aside the orders
At the moment there is no such application before the court. The husband indicated that if the orders were found to be voidable then he did not propose to file such an application, and certainly the wife would not do so in any event. Now that I have determined the primary issue though I will give the husband a further opportunity to make such an application. If he does, then as discussed at the hearing, in my view it would need to be made to the Family Court of Australia given that the entire proceedings have now been transferred to this court.
It was suggested during the hearing that an application pursuant to s 79A of the Act may be the appropriate application to make in relation to the issue of property settlement. Although it could be said that there has been a miscarriage of justice within s 79A(1)(a) of the Act, a s 79A application is not available in relation to the parenting or the costs orders. However, apart from that, it seems to me that in the circumstances of the decision of the Full Court it is unnecessary to go to the extent of instituting an application pursuant to s 79A of the Act, and a straightforward application to set aside is the application that should be made. Of course though that would still be a matter for the husband.
If the husband does not file an application to set aside then that is not necessarily the end of the matter. At the hearing the husband indicated that he wished to pursue his appeals against the orders rather than file an application to set aside. He relied on decisions of the High Court such as DMW & Anor v CGW (1982) 151 CLR 491, Residual Assco Group Ltd v Spalvins and Ors (2000) 172 ALR 366, and Re Macks and Ors; Ex parte Saint (2000) 176 ALR 545. Those decisions concerned orders that were made by superior courts of record without jurisdiction. It was said that those orders were valid and binding until and unless they were set aside, and that that could be done in an appeal in appropriate circumstances, by removal of the proceedings into the High Court under s 40 of the Judiciary Act 1903 (Cth), or by the issue of a prerogative writ by the High Court of Australia quashing the orders.
Now, of course, here we are not confronted by constitutional arguments as to the jurisdiction to make orders and the orders were not made by a superior court of record. Indeed if there was a question of orders being made by the Federal Magistrates Court without jurisdiction then those orders would be void and not voidable. However, I consider that the cases referred to do provide sufficient authority for the setting aside of orders to be achieved in appropriate circumstances by an appeal. That does not take anything away from my view that the process that should be used here is an application to set aside, but if the husband seeks to pursue an appeal then it would be the Full Court that hears that appeal to determine whether that was appropriate and available in the circumstances.
Accordingly, if the husband does not take up the further opportunity to file an application to set aside, and instead wishes to pursue his appeals, there is of course the issue of whether extensions of time will be granted to allow the appeals against the parenting, property settlement and costs orders to proceed. I have indicated already that subject to the question of the appropriate process I would grant an extension of time to allow the husband to appeal against both orders made on 6 December 2011. As to the orders for property settlement I will invite submissions from the parties before determining that extension of time application, but with the application to extend the time to appeal against the consent parenting orders, I confirm the indication given at the hearing that I propose to dismiss that application. The one child the subject of those orders will be 18 years of age early in 2013. Thus, as on and from that date the Family Court of Australia will have no jurisdiction to make any parenting order in relation to that child, and accordingly, if the appeal proceeded and the husband was successful then not only would the court not be able to make any new orders, but the entire exercise would have no utility. For those reasons, the application for an extension of time should be dismissed.
The appeal against the orders made on 22 June 2010
The fate of this appeal will first depend on whether the husband successfully applies to set aside the orders for property settlement, or he is able to achieve that on appeal. In that event, there will be no need for a stay of those orders, and consequentially the orders for enforcement would need to be set aside.
To go back one step though, depending on what has happened in relation to this order it may still be necessary to consider the appeal against the refusal to stay pending the finalisation of any application to set aside, or an appeal to achieve that purpose.
In the circumstances, before determining what to do with that appeal, I propose to seek up to date information as to whether the orders for property settlement and/or the orders for enforcement have been executed, and if not, the state of those orders.
The husband’s application in an appeal filed on 10 August 2010 seeking an extension of time to file a draft appeal index will also have to await the outcome of those enquiries.
Conclusion
Given that I have found that the orders are voidable, I propose to conduct a hearing to address the issues that flow from that finding, being the issues I have attempted to raise in these reasons for judgment.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
19 December 2012.
Associate:
Date: 19 December 2012
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