GENESALIO & GENESALIO
[2020] FamCAFC 113
•14 May 2020
FAMILY COURT OF AUSTRALIA
| GENESALIO & GENESALIO | [2020] FamCAFC 113 |
| FAMILY LAW – APPEAL – COSTS – Where leave is granted to the husband to adduce the further evidence sought to be relied on – Where the husband had not complied with court orders – Where a further adjournment was granted to enable the husband to comply with those orders – Where it is well settled that the Full Court is reluctant to interfere with the exercise of discretion by a trial judge to make costs orders – Where the discretion was not exercised erroneously – Where there were circumstances justifying an order for costs being made – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – LEAVE TO APPEAL – APPEAL – PROPERTY – SOLE USE AND OCCUPATION – Where the further evidence sought to be adduced with the exception of a solicitor’s affidavit was admitted – Where leave to appeal is reliant on the success of the grounds of appeal – Where the husband asserts that as the wife had instituted proceedings in the Magistrates Court at Melbourne she was not entitled to institute proceedings in the Federal Circuit Court of Australia (s 114AB(2) of the Family Law Act 1975 (Cth)) – Where the wife contends that no order having been made in the Magistrates Court at Melbourne excluding the husband from the home, that can be viewed in the same way as if an order had been made but had been set aside or had lapsed (s 114AB(2)(a)(ii) of the Family Law Act 1975 (Cth)) – Where the primary judge erred in failing to dismiss the application as being in breach of s 114AB(2) or at the very least to adjourn the application before him pending finalisation of the Magistrates Court proceedings – Where the primary judge was in error in striking out the husband’s affidavit as being non-compliant with Practice Direction No. 2 of 2017 as the Practice Direction did not apply to this affidavit – Where the affidavit of the wife was accepted even though it did not comply with the Practice Direction – Where the contents of the husband’s affidavit were crucial to the husband’s opposition to the wife’s application for sole use and occupation, but also in support of his application in his response in that regard and thus could be relied on by the husband for those purposes (r 4.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth)) – Where the husband’s various medical conditions were matters highly relevant to the issue of sole use and occupation and relevant medical reports were annexed to the husband’s affidavit which was struck out – Where by striking out the husband’s affidavit the primary judge did not have before him to weigh in the balance the husband’s position as to the financial circumstances of the parties or in relation to the ability of the parties to relocate and did not take into account the wife’s interest in the substantial estate of her late mother – Where all but the ground of appeal asserting apprehended bias have merit – Leave to appeal granted – Appeal allowed – Orders 1 and 2 made on 8 November 2018 set aside – Application for interim orders filed by the wife insofar as she seeks an order for sole use and occupation of the former matrimonial home and for the husband to vacate that property within 14 days be dismissed. FAMILY LAW – COSTS – Orders made providing a regime for the filing of written submissions. |
| Family Law Act 1975 (Cth) ss 114AB(2), 114AB(2)(a)(iii), 117(2), 117(2A) Federal Proceedings (Costs) Act 1981 (Cth) Federal Circuit Court Rules 2001 (Cth) r 4.05(2)(a) Federal Circuit Court of Australia, Practice Direction No. 2 of 2017 – Interim Family Law Proceedings, 1 January 2018 |
| Bass & Bass and Anor [2016] FamCAFC 64 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd and Another (2006) 229 CLR 577; [2006] HCA 55 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Harris and Harris (1991) FLC 92-254; [1991] FamCA 124 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lindsey & Christie and Anor [2016] FamCAFC 132 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342; [1986] HCA 39 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Mr Genesalio by his Case Guardian Mr M Genesalio |
| RESPONDENT: | Ms Genesalio |
| FILE NUMBER: | MLC | 7657 | of | 2018 |
| APPEAL NUMBERS: | SOA | 83 | of | 2018 |
| SOA | 88 | of | 2018 |
| DATE DELIVERED: | 14 May 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATES: | 2 September 2019; 25 October 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 October 2018; 8 November 2018 |
| LOWER COURT MNC: | NA – Transcript only; [2018] FCCA 3458 |
REPRESENTATION
| THE APPELLANT: | In person by his Case Guardian Mr M Genesalio |
| COUNSEL FOR THE RESPONDENT: | Mr Puckey |
| SOLICITOR FOR THE RESPONDENT: | Mazzeo Lawyers |
Appeal no. SOA 83 of 2018
Orders
The Application in an Appeal filed by the appellant husband on 4 April 2019 seeking leave to adduce further evidence be granted.
The appeal be dismissed.
Appeal no. SOA 88 of 2018
Orders
The Application in an Appeal filed by the appellant husband on 4 April 2019 seeking leave to adduce further evidence be granted in part, and all of the documents sought to be adduced be received, save and except for the affidavit of the appellant husband’s solicitor.
The Application in an Appeal filed by the appellant husband on 21 August 2019 seeking leave to adduce further evidence be granted.
Leave to appeal be granted.
The appeal be allowed.
Orders 1 and 2 made on 8 November 2018 be set aside.
The application for interim orders filed by the respondent wife insofar as she seeks an order for the sole use and occupation of [Property A] and for the husband to vacate that property within 14 days be dismissed.
Appeal nos. SOA 83 of 2018 and SOA 88 of 2018
Orders
Any party who seeks an order for costs file and serve written submissions in support of that application by the close of business on Thursday 4 June 2020.
The other party file and serve written submissions in response within 14 days of the date of receipt of the written submissions by the party seeking an order for costs.
The party seeking an order for costs file and serve any written submissions in reply within seven days of the date of receipt of the written submissions of the other party in response.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Genesalio & Genesalio has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Numbers: SOA 83 of 2019; SOA 88 of 2019
File Number: MLC 7657 of 2018
| Mr Genesalio |
Appellant
And
| Ms Genesalio |
Respondent
REASONS FOR JUDGMENT
Introduction
There are two Notices of Appeal before the court, namely in appeal no. SOA 83 of 2018 (“the first appeal”) and in appeal no. SOA 88 of 2018 (“the second appeal”). By order made on 1 May 2019, the two appeals were consolidated and they were subsequently heard together.
In relation to both appeals, Mr Genesalio (“the husband”), filed Further Amended Notices of Appeal on 4 April 2019.
On 24 May 2019, an order was made that the husband’s brother, Mr M Genesalio, be appointed as the Case Guardian for the husband.
In the first appeal the husband appeals against an order for costs made by a judge of the Federal Circuit Court of Australia on 22 October 2018, and in the second appeal the husband seeks leave to appeal, and if leave is granted, to appeal against orders made by the same judge on 8 November 2018.
The order of 22 October 2018 appealed against provided as follows:
2.The husband pay the wife’s cost of this day to be taxed in default of agreement, such agreement (if any) to be reached by 4:15pm on 7 November 2018.
(Emphasis as per original)
The orders made on 8 November 2018 the subject of the second appeal are as follows:
1.The affidavit sworn by the husband on 7 November 2018 and filed on 7 November 2018 is struck out AND I DIRECT that the affidavit is to be removed from the court file.
2.UNTIL FURTHER ORDER pursuant to s 114 of the Family Law Act the wife have the sole right to use and occupy the former matrimonial home at [Property A], and the husband is forthwith restrained from entering or remaining on the premises.
3.Within 24 hours the wife make available for collection by the husband’s brother, [Mr M Genesalio], all of the husband’s clothing and personal effects.
…
(Emphasis as per original)
On 4 April 2019, in the first appeal, the husband filed an Application in an Appeal seeking leave to adduce further evidence, and on the same date, in the second appeal, the husband filed a similar Application in an Appeal. Indeed, the “further evidence” sought to be adduced in the latter application includes the “further evidence” sought to be adduced in the former application.
On 21 August 2019, in the second appeal, the husband filed another Application in an Appeal seeking leave to adduce further evidence.
The appeals are opposed by Ms Genesalio (“the wife”).
Background
The husband was born in 1955 and is currently aged 64 years.
The wife was born in 1960 and is currently aged 59 years.
The parties married in 1994, and they commenced cohabitation at that time.
There are three adult children of the relationship, N born in 1995, R born in 1996 and D born in 1998. They reside with the wife and have a close relationship with her. The husband asserts that the wife has alienated the children from him.
The husband is a qualified tradesman, but he says that due to ill-health he ceased working in 2010.
The wife is a [professional]. At the time of the hearing before the primary judge she was on stress leave.
Each party makes allegations of domestic violence against the other of them, and in May 2018 they obtained interim intervention orders against one another in the Melbourne Magistrates Court.
On 6 July 2018, the wife filed an Initiating Application seeking final orders for property settlement, and interim orders, including that she have the sole use and occupation of Property A occupied by both parties and the adult children.
The first return date of that application was 14 August 2018. The primary judge made various orders, including as to the payment of outgoings for Property A, and requiring the parties to provide full and frank disclosure, for the husband to file responding material, and listing the hearing of the wife’s application for sole use and occupation on 25 September 2018.
On 12 September 2018, the husband made application by email seeking orders to have a subpoena issued to [a] Bank set aside, and that the proceedings be struck out for want of jurisdiction. That application was listed for hearing before his Honour on 17 September 2018.
On 17 September 2018, his Honour dismissed the husband’s application, extended the time for the husband to comply with the orders of 14 August 2018 by 21 days, adjourned all outstanding applications to 22 October 2018 for further hearing, and ordered that the husband pay the wife’s costs in the sum of $2,200.
On 22 October 2018, the matter was adjourned for further hearing to 8 November 2018, and the order for costs was made.
On 8 November 2018, his Honour made the orders referred to above, and made further orders for the parties to file documents with a view to progressing the proceeding to a final hearing.
The first appeal
It is necessary to first address the Application in an Appeal filed by the husband on 4 April 2019, seeking leave to adduce further evidence.
The further evidence comprises the following:
a.The affidavit of the wife filed on 6 July 2018.
b.“Briefing Counsel Early in Litigation, A Judge’s Perspective” authored by trial judge to the Australian Bar Association at [a] conference in … 2017.
c. Transcript of hearing of 14 August 2018.
d. Transcript of hearing of 17 September 2018.
There can be no issue about the affidavit of the wife, and indeed, that affidavit was included in the index of documents to be before the court for the purposes of the appeal.
As to his Honour’s Paper, it is relevant to the ground of appeal raising the allegation of apprehended bias, and the wife did not oppose its receipt by the court. Thus, it can be admitted.
Finally, the two transcripts should be admitted because they provide relevant background to the hearing on 22 October 2018.
There are four grounds of appeal relied on in this appeal. Ground 4 asserts apprehended bias on the part of the primary judge, and indeed, in the husband’s summary of argument dated 15 April 2019, actual bias is alleged.
The immediate difficulty with those assertions, is that it is not open to a litigant to raise an allegation of bias on appeal where it was not raised in the court below (Vakauta v Kelly (1989) 167 CLR 568).
That is the case here, but the allegation does not just relate to what was said by his Honour during the course of the hearing, and in his oral reasons for judgment; it also relates to what his Honour said in the Paper published in 2017, but which only came to the notice of the husband well after the order appealed against was made. Thus, it is necessary for this Court to address this ground of appeal.
It is usually necessary to address any allegation of bias first, given that if the allegations are established, the appeal must succeed and it is unnecessary to consider anything further (Concrete Pty Limited v Parramatta Design & Developments Pty Ltd and Another (2006) 229 CLR 577). However, the assertions here arise in part, at least, out of two of the other grounds of appeal, namely Grounds 1 and 3, and thus it is necessary to address those grounds of appeal first, and then Ground 4.
Ground 1
The primary judge erred in making a cost order against the appellant:
a. By failing to consider the matters in s.117(2A) of the Family Law Act 1975 (Cth) in particular:
i. The parties’ financial circumstances;
ii. The appellant’s reasons for seeking an adjournment;
b. By failing to consider or afford appropriate weight to the fact that an offer was put to the respondent prior to the hearing proposing an adjournment and the respondent did not mitigate her loss by accepting the offer; and
c. In circumstances where the appellant was successful in obtaining the relief sought, namely an adjournment.
It is necessary to be aware of the detailed history of the proceedings prior to the hearing on 22 October 2018, to put into context the orders made by his Honour on that day, and in particular, the order for costs which is the subject of the appeal.
As referred to above, on 6 July 2018, the wife filed an Initiating Application seeking a final order for property settlement, and interim orders including that she have the sole use and occupation of Property A, providing for the husband to vacate that property within 14 days, and further, requiring the husband to provide full and frank disclosure of all relevant documents.
That Initiating Application first came on for hearing before the primary judge on 14 August 2018. The husband did not appear, but his brother was permitted to speak on his behalf in support of an adjournment.
After hearing from both sides, his Honour made orders, inter alia, fixing 25 September 2018 as the date to hear the wife’s application for sole use and occupation, for both parties to provide full and frank disclosure of specified documents by 4 September 2018, and for the husband to file responding documents by 11 September 2018.
On 12 September 2018, the husband sought that the matter be listed again, and that was arranged for 17 September 2018. Because the husband had not complied with the order for full and frank disclosure, there had been a subpoena issued by the wife to the Bank, and the husband was seeking to object to that subpoena. Further, the husband was seeking to have the entire proceedings dismissed for want of jurisdiction.
Relevantly, the husband had not complied with any of the orders made on 14 August 2018, and in the context of the husband informing his Honour of his various medical conditions, his Honour made orders extending the time for compliance with those earlier orders to 8 October 2018, varied the hearing date of the application for sole use and occupation to 22 October 2018, and ordered that the husband pay the costs of the wife fixed in the sum of $2,200. In support of the latter order, his Honour said this:
HIS HONOUR: Mr Genesalio, I’m going to vacate the costs order that I made a minute ago, reserving it, and I’m going to order that you pay the costs of today, fixed at the sum of 2200, and in making that order I take into account the matters prescribed in section 117(2A) of the Family Law Act and I focus in particular on the fact that you have not complied with the orders I have previously made, you’ve taken issue with and brought this matter on in relation to a point that was doomed to fail, namely the subpoena point, and you’ve also taken issue with a point wholly unmeritorious, namely the fact that this court has no jurisdiction. I can assure you it does, and I have made orders constant with that. Therefore, I’m going to expect to see you on 22 October. Thank you.
(Transcript 17 September 2018, p.12 lines 26-35)
I come then to the hearing on 22 October 2018.
The husband had still not complied with the orders for filing his responding material, and he had not complied with the requirement to provide full and frank disclosure. Thus, he sought another adjournment, primarily on the basis that his various medical conditions had again prevented him from complying with the orders.
I note that the husband did seek to rely on an affidavit of his brother which was only filed via the Commonwealth Court Portal that very day. Further, his counsel informed the court that a draft responding affidavit had been prepared and would be able to be filed within seven days.
In the end result, the proceedings were further adjourned, and specifically to 8 November 2018, primarily for the hearing of the wife’s application for sole use and occupation, but to also enable the husband time to file his responding material, and provide full and frank disclosure.
His Honour then made the order for costs the subject of this appeal.
The husband complains that his Honour failed to consider the matters in s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), and in particular, the parties’ respective financial circumstances, and the husband’s reasons for seeking an adjournment. However, given how the proceedings had developed, it was entirely unnecessary for his Honour to specifically address the factors in s 117(2A) in determining to make an order for costs. The application was for yet another adjournment, and the other side were ready to proceed. The husband had failed to comply with any of the orders made on 14 August 2018, and on 17 September 2018, and he had not filed a Financial Statement, thus making it impossible for his Honour to have regard to his financial position.
Accordingly, there were plainly circumstances justifying an order for costs being made (s 117(2)). Further, his Honour had previously made an order for costs against the husband on 17 September 2018, when the issue was also adjournment of the proceedings at the request of the husband. As can be seen from what his Honour said in support of that order for costs, his Honour indicated that he had taken into account the matters in s 117(2A). Thus, he need not repeat that in making the order for costs on 22 October 2018.
Finally, I note that it is well settled that the Full Court is reluctant to interfere with the exercise of discretion by a trial judge to make costs orders. In Harris and Harris (1991) FLC 92-254 the Full Court said this at 78,711:
…Orders for costs are peculiarly a matter which are within the discretion of the trial judge and it is only in the rarest of cases that the Full Court should interfere with a costs order.
Relevantly, the majority of the High Court (Stephen, Mason, Murphy, Aikin and Wilson JJ) in Penfold v Penfold (1980) 144 CLR 311 said this at 315-316:
[Section 117(2)] does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised. Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
(Citations omitted)
Here, in light of the circumstances as outlined above, it has not been established that the discretion was exercised erroneously.
In this ground of appeal the husband also asserts that his Honour erred by not affording appropriate weight to an offer put by him just prior to the date of the hearing, and which was rejected by the wife. Unfortunately, this assertion is misguided. The offers that are to be taken into account under s 117(2A)(e) are offers of settlement (emphasis added). There was no such offer here. All that was put was that there be an adjournment because of the husband’s various medical conditions, and he needed time to complete his documents.
When this was put to his Honour, his Honour responded appropriately, saying, “you [the husband] had to persuade me about that. An adjournment was by no means gainsaid” (Transcript 22 October2018, p.8 lines 15-16).
There is no error here by his Honour.
Finally, it is contended that his Honour erred in making an order for costs because the husband was successful in obtaining an adjournment. Again, that contention is misguided. As his Honour correctly said, “[a]nd you have obtained indulgences by a whisker. That comes at a price” (Transcript 22 October2018, p. 8 lines 16-17).
There is also no error here, and this ground of appeal has no merit.
Ground 3
The primary judge did not afford the appellant procedural fairness in relation to the issue of costs.
The basis of this ground is the asserted failure by the primary judge to “take into account submissions put to him by Mr Fuller on behalf of the appellant”, namely as to the “matters to be taken into account in s 117(2A)”, such as the husband’s various medical conditions, the offer put by the husband prior to the hearing proposing an adjournment, and that the wife did not “mitigate her loss by accepting that offer” (Husband’s summary of argument dated 15 April 2019, paragraph 22).
However, it is apparent from the transcript that the only matter put by Mr Fuller was the offer made prior to the date of the hearing (Transcript 22 October2018, p.7 line 40 to p.8 line 17). That was then appropriately dealt with by his Honour as explained above. Thus, there is no issue of procedural fairness here.
It is then said that his Honour failed to provide the husband with a “proper opportunity to be heard” in relation to the considerations required to be taken into account under s 117(2A). That squarely raises an issue of procedural fairness, but again it is misguided. His Honour asked the husband’s counsel why he should not make a costs order against the husband, and to repeat, the only submission was that there was an offer made to adjourn the proceedings prior to the hearing. Thus, this complaint cannot be made out; the opportunity was given to make whatever submission was thought to be appropriate, but nothing was said about s 117(2A) of the Act.
It is next submitted that his Honour did not take into account the evidence contained in the affidavit of the husband’s brother. However, it was only filed via the Commonwealth Court Portal on the very day of the hearing, and the only comment that the husband’s counsel made about it was to indicate that he would “seek leave for that to be relied on today”, but no submission was made directed to anything in that affidavit. Indeed, it seems that it would not have had any bearing on whether an order for costs should be made. To repeat, that was made because the husband was seeking yet another adjournment when the other side were ready to proceed, and granting it was an indulgence that involved a price to pay. This was a perfectly orthodox approach by his Honour.
It is then said that his Honour took into account “irrelevant considerations”, but none were identified, and thus I can do nothing with this complaint. In any event, I am perplexed as to what that has to do with an alleged lack of procedural fairness.
The assertion is then made that his Honour “refused” to take into account relevant considerations pursuant to s 117(2A). However, his Honour did not refuse to do anything of the sort, and I have already dealt with the issue of the factors in s 117(2A) in addressing Ground 1, and there is no need to repeat what I there said.
Penultimately it is contended that his Honour failed to give adequate reasons. Again, that has nothing to do with the ground, but in any event I am satisfied that this is not a contention which can be maintained. His Honour provided all the reasons he needed to in saying that an indulgence was granted, and there is a price to pay for that. The adequacy of any reasons is to be judged by what it is necessary to say to expose the reasoning of the judicial officer (Bennett and Bennett (1991) FLC 92-191).
Finally, it is asserted that the decision is “plainly wrong and unjust”. However, there is nothing put to support that assertion, and I can take it no further.
This ground of appeal also fails.
Ground 4
The cumulative effect of
a. The primary judge’s public statements regarding both
i. cases in which counsel is briefed early and
ii. Solicitors and litigants in person and
His public statements regarding techniques he has used in the past for dealing with
i. solicitor’s advocates and
ii. late briefed counsel
including his reference to “cost thrown away orders” combined with
b. remarks made in the proceeding and
c. his reasons for decision
give rise to a reasonable apprehension of bias, including that the judge did not render an impartial application of the law and his discretion to the facts including the appellant’s health and financial circumstances.
I can now address the complaint of bias asserted in this ground.
As can be seen, the ground suggests that apprehended bias on the part of his Honour is demonstrated by the cumulative effect of certain public statements made by his Honour, his remarks made in the proceedings, and in his reasons for decision. There is more said in the summary of argument, but I will come to that shortly.
I first set out the well-known principles to be applied when an allegation of apprehended bias is made.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court said this:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
(Footnotes omitted)
In the earlier High Court decision of Johnson v Johnson (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said this:
12… The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(Footnotes omitted)
In an even earlier High Court decision of Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, Mason J relevantly said, at 352:
… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”…
As to his Honour’s “public statements” they are to be found in a Paper entitled “Briefing Counsel Early in Litigation - A Judge’s Perspective” given to the Australian Bar Association Conference in 2017.
It is said in the husband’s summary of argument dated 24 April 2019, and provided for the purpose of the second appeal, but relied on in relation to this ground in the first appeal, as follows:
68.The public statements contained in the paper at [1-4], [8], [23] & [30] inter alia, in the context in which they are made give rise to a reasonable apprehension the primary judge has manifest preconceived views towards, solicitors and in particular litigants in person appearing before him in the context of their respective inabilities to effectively prepare and present a case in court. The preconceived views of the primary judge are tantamount to his frustration, intolerance and unwillingness to engage with anyone appearing before him other than counsel.
69.…The public statements reinforce an apprehension as to the motivation of the primary judge to depart from s117 (1) the Act to make cost orders against the Appellant without having regard to s117 (2A) the Act.
…
72.…The primary judge had formed and maintained a preconceived impression that was so entrenched that nothing that the appellant husband would say or do would persuade him otherwise.
…
74.The misconstruction as to the Appellant’s poor health (and disability to derive income) as an attempt to avert his obligations in the proceeding by the primary judge gives rise to a reasonable apprehension of bias in that the primary judge did not apply an impartial, logical, rational or sensible assessment to the medical and other evidence put to him by the Appellant.
75.The primary judge’s inadequate reasons for his decision and in particular the failure to address procedural fairness when considered in context of his public statements reinforce an apprehension of bias or actual bias.
(Emphasis as per original)
(Footnotes omitted)
As to the paragraphs of the Paper specifically identified, I can see nothing whatsoever therein that supports these generalised assertions, and nor in the Paper as a whole.
Those paragraphs all deal exclusively with the advantages of having a barrister appear rather than a solicitor-advocate. Further, the theme is that barristers should be briefed earlier rather than later. There is also no mention or reference to a litigant in person.
I note that unlike on other occasions, the husband did not appear in person on 22 October 2018, and he was represented by counsel.
Next, there is the reference in the ground to “remarks made in the proceeding”. However, nowhere in the husband’s summary of argument dated 24 April 2019, nor in his summary of argument dated 15 April 2019, being the summary of argument prepared for the purposes of the first appeal, nor in his oral submissions, does the husband identify the remarks made by his Honour during the hearing on 22 October 2019 to which he is referring. Thus, this cannot provide a basis for a finding of apprehended bias. The first step, as referred to in Ebner is not satisfied.
Then there is the reference in the ground to “his reasons for decision”, but again the husband failed to identify which of those reasons demonstrate the apprehended bias. Certainly, he contends that his Honour has failed to address matters in his reasons, such as the s 117(2A) factors, and the alleged lack of procedural fairness, but I have found that his Honour has not erred in those respects. Thus, again, the first step identified in Ebner has not been satisfied.
Thus, individually these matters do not provide a basis to find apprehended bias on the part of his Honour, and to consider them cumulatively does not satisfy the test either.
Actual bias is referred to by the husband in his summary of argument, and I assume that that is founded in the claim by the husband that his Honour “had formed and maintained a preconceived impression that was so entrenched that nothing that the appellant husband would say or do would persuade him otherwise” (Husband’s summary of argument dated 15 April 2019, paragraph 34).
However, this again is a mere assertion without any basis. I have not been taken to anything in the appeal record, nor to anything that his Honour has said extra-judicially, which provides that basis.
A further submission made by the husband in paragraph 34 of his summary of argument dated 15 April 2019 is that his Honour failed “to act judicially in the exercise of his discretion to make the costs order”. The basis of that assertion is his Honour’s alleged failure to take into account the s 117(2A) factors, and to provide procedural fairness. However, again, I have rejected these complaints, and thus, this submission cannot advance the husband’s argument.
There is no merit in this ground of appeal.
Ground 2
The primary judge erred in making a cost order in circumstances where:
a. The substantive issue, being an adjournment application, was not formally before the Court and the only issue before the Court was an enquiry as to future hearing availability; and
b. No application for costs was made by the respondent.
Once again this ground, and the submissions made in support of it, are misguided.
The question of an adjournment was squarely in issue given that the husband was not ready to proceed with the hearing, and the husband’s counsel was asking for an extension of time for the husband to comply with the previous orders made by his Honour. That is an application for an adjournment by any other name.
Further, the fact that the wife did not seek an order for costs is of no moment. It is plain that his Honour raised the issue first, by enquiring of the wife’s counsel why his Honour should not make an order for costs, given the circumstances that applied, and after hearing counsel’s submission, his Honour made the order.
In his summary of argument of 15 April 2019, the husband again attempts to raise the issue of a lack of procedural fairness and bias. However, there is nothing there put by the husband which alters the view that I have formed about the lack of merit in relation to these claims.
There is no merit in this ground of appeal.
Conclusion as to the first appeal
There being no merit in any of the grounds of appeal, the appeal must be dismissed. However, I will need to return to this appeal once I have addressed the second appeal.
The second appeal
As with the first appeal, it is helpful to first address the Application in an Appeal filed on 4 April 2019, seeking leave to adduce further evidence. There is of course another application filed on 21 August 2019, but I will leave that until I address Ground 7.
The evidence sought to be adduced in the April application included the evidence sought to be adduced in the first appeal, and thus I need say nothing further about that, except that that evidence will, of course, also be received for the purposes of this appeal.
In addition, it was sought to adduce the following:
a.Application and Summons for An Intervention Order Case Number … in the Melbourne Magistrates Court filed .././…..
b.Hospital admission / discharge reports for the appellant for November 2018.
c.Affidavit of Philip Henenberg, solicitor reporting the facts alleged at 6.2(c) of the further Amended Notice of Appeal.
At the hearing of the appeal, the husband did not press for the affidavit of the solicitor to be admitted, and the wife properly opposed its reception in any event.
As to the Magistrates Court document, it was appropriate to receive that in relation to the error asserted in Ground 1, and that will become clearer when I address that ground.
In relation to the medical records, although I do not consider that they can be received, the wife did not oppose their admission, and thus I will receive them.
Turning then to the appeal, it is necessary for the husband to first obtain leave to appeal.
The test that is now generally applied is whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave to appeal was refused (Medlow & Medlow (2016) FLC 93-692; but see Lindsey & Christie and Anor [2016] FamCAFC 132, and Bass & Bass and Anor [2016] FamCAFC 64).
In an attempt to satisfy that test, the husband says that because of his various medical conditions, his financial circumstances, and his lack of suitable alternative accommodation compared to the circumstances of the wife, his effective removal from Property A has created a substantial injustice.
In his reply to the summary of argument of the wife filed on 26 April 2019, the husband also curiously suggests that leave to appeal should be given because his Honour “fell into jurisdictional error” in arriving at his decision, because of the alleged errors asserted in the grounds of appeal. That is curious because those grounds do not raise jurisdictional error.
In any event, to continue, it is apparent that in reality the husband is relying on the strength of his grounds of appeal to justify leave being granted. Accordingly, I will first consider those grounds of appeal to the extent necessary.
In Ground 10, the husband again asserts apprehended bias on the part of his Honour, and as I have said previously, it is usually necessary to address that ground first. As in the first appeal though, this assertion arises in part at least out of five of the other grounds of appeal, namely Grounds 2, 4, 5, 6 and 9. Thus, I would need to address those grounds first and then return to Ground 10.
However, as in the first appeal, there is a strong argument here that it is not open to the husband to raise an allegation of bias, because he has waived the right to do so (Vakauta v Kelly). As is apparent from the first appeal, the husband was concerned at the time about what his Honour had said during the hearing on 22 October 2018, and in his oral reasons for judgment, and clearly to the extent that the husband considered that his Honour demonstrated an apprehension of bias. However, the husband then made no application prior to or during the hearing on 8 November 2018 that his Honour recuse himself. He let the hearing unfold, and the oral reasons for judgment be delivered, and it was only when he files his Further Amended Notice of Appeal on 4 April 2019, that he raises the issue of bias.
He explains that by saying that it was only when he subsequently became aware of the contents of his Honour’s Paper delivered in 2017, that what his Honour said at the hearing was put into context and demonstrated an apprehension of bias.
I am not necessarily persuaded that that allows the husband to now raise this allegation, but perhaps I am influenced in that regard by my findings in the first appeal as to the contents of his Honour’s Paper. Thus, if I am wrong about the ability of the husband to raise this in this appeal, and he can do so, I will proceed to address the relevant grounds of appeal, but only to the extent necessary following what I am about to say.
Even before any of the grounds that relate to the allegation of apprehended bias are considered, it is necessary that I deal with Ground 1, and then perhaps Grounds 3 and 4, and the reasons for that will become apparent when I address those grounds.
Ground 1
The primary judge erred in making an injunction in circumstances:
a. where the respondent’s application for an injunction offended s. 114AB(2) of the Family Law Act 1975 (“the Act”) and the Court accordingly acted ultra vires; and
b. Where the Court failed to take into take into (sic) account s. 114AB(2) of the Act.
It is necessary to consider the sequence of events, including the transcripts of the hearings before the Magistrates Court, in order to address this ground.
Those transcripts are annexed to the husband’s affidavit sworn on 7 November 2018, and which his Honour struck out and had removed from the file. By agreement between the parties, that affidavit was placed before this Court because it is relevant not only to this ground, but other grounds such as Ground 3.
On 21 May 2018, the Victorian Police sought an intervention order against the wife on behalf of the husband.
At the hearing before the Magistrate, the Magistrate was advised that the husband was seeking “a more comprehensive order” than was sought by the police, including for the wife in effect to be excluded from the home. However, on an interim basis all that the Magistrate was prepared to do was to make an interim intervention order, and not to make an order excluding the wife, or indeed anyone, from Property A at that time. However, the Magistrate did indicate that in that context a Police Risk Assessment should be carried out before this was considered further.
The Magistrate then adjourned the matter to July 2018, but it is unclear if the Risk Assessment was ever carried out.
Then, on 24 May 2018 the wife sought an interim intervention order against the husband, and she specifically sought a condition that the husband not “go to or remain within 200 metres of [Property A]”.
However, although the Magistrate who heard that application made an interim intervention order, the Magistrate indicated that she would not make the conditions sought by the wife at that stage, and she too adjourned the matter to July 2018.
There is no evidence before me to indicate what happened in July 2018, but as a result of what I have been told about subsequent events, and which I will come to, it is apparent that no relevant further orders were made and the matter was likely adjourned.
As referred to above, it was following the hearing in July 2018 that the wife filed an Initiating Application in the Federal Circuit Court of Australia, seeking both final and interim orders, including an interim order that she have the sole use and occupation of Property A, and that the husband vacate that home within 14 days.
That application of course was ultimately heard and determined by his Honour on 8 November 2018. Importantly, it is common ground that at that time the Magistrates Court proceedings were still ongoing, and the final contested hearing, including the question of who, if anybody, would be excluded from the home, had not yet taken place, and no order had yet been made in that regard.
However, it is apparent that the Magistrates Court proceedings were listed the very next day in order to set a date for that final contested hearing to take place (Transcript 8 November2018, p.10).
It is with that background that the husband raises s 114AB(2) of the Act. That subsection provides as follows:
114AB Operation of State and Territory laws
…
(2)Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a)where the person instituted a proceeding:
(i)the proceeding has lapsed, been discontinued, or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b)where the person took other action—neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
The husband submits that because the wife had instituted the proceedings identified above in the Magistrates Court at Melbourne, she was not entitled to institute proceedings in the Federal Circuit Court of Australia seeking sole use and occupation. Plainly those proceedings were in relation to the same matter as the Magistrates Court proceedings, and those latter proceedings were proceedings which could have been instituted in the Federal Circuit Court of Australia pursuant to s 114 of the Act.
However, the wife submits that s 114AB(2)(a)(ii) applies, and thus the wife was not prevented from instituting the proceedings in the Federal Circuit Court of Australia, seeking sole use and occupation.
The argument is that no order having been made excluding the husband from the home, that can be viewed in the same way as if an order had been made but had been set aside, or had lapsed.
The difficulty with that submission is that where proceedings have already been commenced in the state court, the purpose of the subsection is to prevent there then being two sets of proceedings in different courts, wherein the same matter is being litigated.
Thus, the prime example of where the subsection applies, is where proceedings are still on foot in the state court at the time a party seeks to institute proceedings in relation to the same matter in the federal court. In other words, the precise situation here.
The wife also submitted that where proceedings are instituted in a federal court, and the evidence requires protective orders to be made, the federal court would have the power to make those orders regardless of there being proceedings on foot in the state court. That is no doubt correct, but this is not about the power of the federal court to make orders, it is about the ability of a litigant to institute the proceedings in that federal court where there are relevant proceedings already in the state court.
The final argument put by the wife was that at the hearing before the Magistrate on 24 May 2018, the wife did not press for an exclusion order, and no such order was made. However, I do not accept that the wife did not pursue an exclusion order before the Magistrate. That was her application, and remained her application, but the Magistrate indicated that she would not be making that order at that stage, and whether it would be made would be left to the final contested hearing.
Thus, I am not persuaded by any of these arguments that the subsection did not apply here. Indeed, as will be seen shortly, none of these arguments go anywhere near describing how his Honour dealt with the issue.
Turning then to how the primary judge did deal with this issue.
The husband’s solicitor-advocate alerted his Honour to the ongoing proceedings in the Magistrates Court (Transcript 8 November2018, p.10), and in effect submitted that the issue of a party being excluded from the home should be left to that court to avoid a duplication of proceedings (Transcript 8 November2018, p.11). Indeed, it is useful to set out the exchange between his Honour and the husband’s solicitor-advocate in this regard, as follows:
MR HENENBERG: - - - [my] response, your Honour, is that this – there are proceedings on foot at this very time at the Melbourne Magistrates Court, intervention orders and the magistrate has seen fit not to put an exclusion order on – there has been a cross-application and that’s to be heard tomorrow - - -
HIS HONOUR: You can’t possibly be suggesting that I should be bound by what a magistrate tells about a different case. If you are, I reject it out of hand.
MR HENENBERG: Not bound, your Honour, but I would have thought it was - - -
HIS HONOUR: Well, I’m not going to even take it into account. This is an intermediate trial court, not a Magistrates Court. I’m not bound by decisions of magistrates.
MR HENENBERG: I understand you’re not bound, your Honour, but it’s before the court at this very point – at this very point in time. And tomorrow is a mention for a contested hearing.
HIS HONOUR: Well, that will deal with the issues that go beyond what I have to deal with.
MR HENENBERG: It’s very – the same issue, your Honour, with due respect.
HIS HONOUR: Living in a - - -
MR HENENBERG: It’s the family violence and possible exclusion orders.
HIS HONOUR: Well, just one second. If I accede to Mr Barbayannis’ application, there is nothing to stop your client moving to the unencumbered property that’s presently vacant and - - -
MR HENENBERG: I’m instructed - - -
HIS HONOUR: Just one - - -
MR HENENBERG: Yes.
HIS HONOUR: Just a second.
MR HENENBERG: Yes.
HIS HONOUR: You have to hear and process what I’m saying to you and then tailor your submissions in response. If I were to make that order, the family – sorry, the intervention order can proceed and there’s no violence done to whatever the magistrate is dealing with.
MR HENENBERG: My submission is, your Honour, that the issue of whether there should be exclusion of the – from the property of either party is being dealt with currently in the Magistrates Court.
HIS HONOUR: Well, once again, I’m not bound by that. And how could that court purport – how could it possibly purport to deal with an order of – that is the subject matter of this proceeding? By definition, it’s not seized of that power. It’s a constitutional point as much as anything else.
MR HENENBERG: Is that that process precedes these proceedings.
HIS HONOUR: So what?
MR HENENBERG: So I would have thought that it would be a duplication of proceedings. …
(Transcript 8 November2018, p.10 line 8 to p.11 line 20)
Plainly, the husband’s solicitor-advocate did not specifically mention s 114AB(2), but the application of that subsection was the basis of his submission. However, it seems that his Honour did not grasp the point, initially saying that he was not bound by decisions of Magistrates, then saying that if he made the order sought that would not affect the Magistrates Court proceedings, and finally suggesting that the Magistrates Court had no power to deal with the matter the subject of the proceedings before the Federal Circuit Court of Australia.
None of these responses grapple with the plain meaning of s 114AB(2), and I find that his Honour erred in failing to dismiss the application as being in breach of s 114AB(2), or at the very least adjourning the application before him pending the finalisation of the Magistrates Court proceedings.
There is of course an intriguing question about the effect of s 114AB(2) where, unlike here, there is no objection made to the institution of the proceedings, and the judicial officer allows the proceedings before him or her to continue.
The subsection prohibits a party from instituting proceedings in a federal court, but does not say anything about that court being prevented from hearing and determining those proceedings once instituted. In other words, the intriguing question is what is the effect of the orders subsequently made in the federal court? However, that is not a question that needs to be answered in this appeal, and can be left for another day, with the assistance of informed argument.
There is merit in this ground of appeal, and the error is such that for that reason alone leave to appeal should be granted and the appeal allowed, the relevant paragraphs of the order be set aside, and the interim application insofar as it sought the sole use and occupation of the former matrimonial home, and for the husband to vacate the home, be dismissed, or at the very least adjourned.
In these circumstances I do not need to address the balance of the grounds of appeal, but I will still do so to the extent necessary in the event that I am wrong about this ground.
Ground 3
The primary judge erred by erroneously striking out the appellant’s affidavit filed on 7 November 2018 for non-compliance with Practice Direction No 2 of 2017 as
a. The affidavit filed on 7 November was the appellant’s affidavit filed with his response,
b. Practice Direction No. 2 – 2017 does not apply to a parties (sic) application or response affidavit,
c. The evidence that the appellant relied upon in the interim proceedings on 7 November 2018 was contained in his affidavit filed with his response and
d. Rule 4.05 of the Federal Circuit Court Rules states that an affidavit is not required in an application for interim or procedural orders when the evidence relied upon is in an affidavit filed with a response
or in the alternate
The primary judge erred by striking out the appellant’s affidavit filed on 7 November 2018 for non-compliance with Practice Direction No 2 of 2017 where the respondent’s material was also not complaint (sic) with Practice Direction No 2 of 2017.
Ground 4
The primary judge erred in failing to consider the affidavit material previously filed on behalf of the appellant.
These grounds can usefully be addressed together.
It is plain that his Honour struck out the husband’s affidavit sworn on 7 November 2018 and directed that it be removed from the court file because it breached paragraph 6 of Practice Direction No. 2 of 2017 of the Federal Circuit Court of Australia. That Practice Direction related to “Interim Family Law Proceedings”, and paragraph 6 provided that an affidavit in support of an interim application must not exceed 10 pages in length and contain more than five annexures.
The affidavit his Honour struck out comprised 22 pages and 17 annexures. Thus, prima facie, this affidavit did not conform with the Practice Direction.
However, the affidavit was not an affidavit filed solely in support in an interim application. It was an affidavit filed in support of the husband’s Response to the Initiating Application filed by the wife on 6 July 2018, and which sought final and interim orders, including opposing the order sought by the wife for sole use and occupation of Property A, and seeking that he have the sole use and occupation of that home.
Thus, the Practice Direction did not apply to this affidavit, and his Honour was in error in striking it out and removing it from the court file. Indeed, a plain reading of the affidavit would have demonstrated that it was not an affidavit to which the Practice Direction applied.
However, the error is compounded by the fact that the wife filed an affidavit on 17 October 2018, which related solely to her interim application for sole use and occupation of the property, and that affidavit did not comply with the Practice Direction; it comprised seven annexures instead of just five.
That circumstance was pointed out to his Honour by the husband’s solicitor-advocate, admittedly in defence of the length of the husband’s affidavit, but unlike with the husband’s affidavit, his Honour did not strike out the wife’s affidavit.
There were further compounding effects of the error by the primary judge. The contents of that affidavit were crucial, not only to the husband’s opposition to the wife’s Initiating Application insofar as it sought that she have sole use and occupation of the property, but also in support of the husband’s application in his response in that regard, and could be relied on by the husband for those purposes (r 4.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth)). However, it is readily apparent that his Honour had no regard to the contents of the affidavit, his Honour saying this during the hearing:
HIS HONOUR: I reject the affidavit that the father has purported to file that is 93 pages in length and I will make a formal order to that effect. And that means that whatever is contained in this document, in breach of the practice note, cannot be the subject of evidence. So don’t go beyond that in your submissions. In other words, don’t rely on whatever is in this 93-page document because it’s filed in breach of the practice note. QED, it’s not evidence and it’s not, therefore, before me. I will hand it back.
(Transcript 8 November2018, p.8 lines 31-37)
Thus, his Honour only had the submissions of the husband’s solicitor-advocate, to the extent that he was permitted to put them before his Honour (see Transcript 8 November2018, p.15 lines 1-10, p.16 lines 1-27, p.17 lines 23-31, p.18 line 41, p.19 line 1 and p.30 lines 25-39) when arriving at his decision. On the other hand, he had not only the wife’s counsel’s submissions, but all that the wife had deposed to in her affidavit, despite it not complying with the Practice Direction. The husband did have an earlier affidavit before the court, namely one sworn by his brother and filed on 22 October 2018, but to which his Honour had no regard (Transcript 8 November2018, p.18 line 44 to p.19 line 44), but the husband was severely prejudiced by not being able to rely on and refer to the contents of the more recent expansive affidavit which, apart from addressing the final orders sought, specifically addressed the issue the court had to determine.
The husband’s various medical conditions were matters which were highly relevant to the issue of sole use and occupation, and the relevant medical reports were all annexed to the husband’s affidavit. However, his solicitor-advocate was not permitted to rely on them. He was able to read out to his Honour from the bar table the contents of some of those reports and specifically those that were also annexed to the affidavit filed on 22 October 2018 (Transcript 8 November2018, p.21 line 37 to p.24 line 36), but his Honour then said this in his reasons for judgment:
7.It appeared to me that the reasons advanced by the husband to resist the making of the orders sought today were not at all impressive. Among them, he adduced evidence which I regarded as unsatisfactory to the effect that his medical condition is such that the husband would be put in an unacceptably risky set of circumstances by his removal from the house. The evidence of a medical nature was purportedly adduced by the husband when he was unrepresented in an affidavit that ran for more than 90 pages, squarely in contravention of practice direction 2 of 2017, which limits the page length and the number of annexures to an affidavit. While I accept that that document was prepared by the husband when he did not have legal representation, it could not be said that he was not bound by the practice direction. That applied whether he chose to read it or not.
8.I excluded his affidavit that went for a considerable amount beyond the acceptable bounds for an affidavit. In those circumstances no evidence was before me of a medical nature that addressed whatever medical condition the husband said he was suffering. Mr Henenberg purported to read to me what he considered were the salient pieces of information of a medical nature. I was unable to obtain any assistance from those, particularly in circumstances when one medical person (so I was told) said that the husband’s condition was such that he was unfit for court for several months. I will not allow that imprecise statement of information about the husband’s purported medical condition to bind what is self evidently a toxic set of circumstances caused or at least participated in by the husband.
(Emphasis added)
In a similar vein, the husband’s financial circumstances were highly relevant to the issue of sole use and occupation, and to that end, on 7 November 2018 the husband filed a Financial Statement, and he provided further details as to the respective financial circumstances of the parties, and generally in the affidavit that was struck out.
Presumably, overlooking the Financial Statement, but clearly having no regard to what was deposed to in the affidavit because it has been struck out, his Honour said this in [11]:
… Through Mr Henenberg a statement was made to the effect that the husband will be adversely affected by reason of his financial circumstances. No admissible evidence was led to that effect.
Thus, again, the husband has been prejudiced by the error made by his Honour.
Unfortunately, there is more; a vital consideration was the ability of both parties to relocate. That issue was also the subject of the affidavit which was struck out, and importantly it would have enabled his Honour to take into account the husband’s position in that regard, and not be just left with the unsubstantiated submission of the wife’s counsel that there was a vacant property only five minutes’ walk from Property A which was available to the husband (Transcript 8 November2018, p.4 lines 8-16). The husband’s solicitor-advocate was able to describe the condition of that property (Transcript 8 November2018, p.11), but it seems that his Honour had no regard to that.
Plainly, his Honour acted on the submission of counsel (see [3]). Inexplicably though, his Honour proceeded on the basis that the husband had an interest in that property, when that was not something that was even put by the wife’s counsel. In any event, the point is that his Honour, by striking out the affidavit, then did not have it before him to weigh in the balance the husband’s position in relation to the ability of the parties to relocate.
One highly relevant circumstance in that regard, as well as in relation to the financial circumstances of the parties, that his Honour did not take into account as a result of the husband’s affidavit being struck out, was the wife’s interest in the estate of her late mother. Apparently, the wife’s parents passed away early in 2018, and apart from any entitlement of the wife in the estate, their family home was available to the wife and her siblings. Importantly, none of this was disclosed by the wife in any of her affidavits which were before the court.
As referred to above, the husband filed an Application in an Appeal on 21 August 2019, seeking leave to adduce further evidence. That evidence comprised, inter alia, the inventory of assets and liabilities of the estate of the wife’s late mother, and documents detailing the distribution from a family trust. Plainly those documents should be admitted, given that in concert with the failure by his Honour to take into account the contents of the husband’s affidavit, they demonstrate error by the primary judge. As McHugh, Gummow and Callinan JJ said in CDJ v VAJ (1998) 197 CLR 172:
109 One consideration in construing s 93A(2) [of the Family Law Act 1975 (Cth)] is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. ...
What those documents reveal is an estate with a net value of over $10 million, and a trust distribution to the son of the parties, an adult child who lives with the wife. As to the interest of the wife in the estate, her counsel informed me at the hearing of the appeal that she has a one seventh interest, and that the estate includes income producing properties. It was also common ground that probate was granted in 2019.
Significantly then, not only is there merit in Ground 3, but the compounding effect of the striking out of the affidavit and that evidence not being before him, demonstrates error by his Honour as asserted in Grounds 5, 6 and 7 below:
Ground 5
The primary judge erred by placing insufficient weight on the appellant’s medical evidence.
Ground 6
The primary judge erred by failing to consider the parties’ financial circumstances.
Ground 7
The primary judge erred by failing to consider the respondent’s ability to relocate.
Ground 4 asserts that his Honour “erred in failing to consider the affidavit material previously filed” by the husband.
That specifically relates to the husband’s brother’s affidavit filed on 22 October 2018, which the husband’s solicitor-advocate sought to have the primary judge take into account, but unsuccessfully, as referred to above.
Of course, there was no warrant for his Honour to refuse to take into account that affidavit, and he provided no reasons for not doing so. Accordingly, there is merit in this ground of appeal as well.
Pausing there, the success of Ground 3, the consequential success of Grounds 5, 6 and 7, and the success of Ground 4, by themselves, must also result in leave to appeal being granted, the appeal being allowed, and orders 1 and 2 being set aside.
With order 3, there would appear to be no utility in setting that order aside, given that the husband’s brother would have already collected all of the husband’s personal effects, and clothing, and if in the end result the husband is able to return to Property A, he can bring those items of personalty with him.
As to what should happen to the proceedings, if, as I have found, Ground 1 has merit, then those proceedings insofar as they seek an interim order for sole use and occupation of Property A, should either be dismissed, or at the very least adjourned to await the outcome of the Magistrates Court proceedings. If I am wrong though about the success of Ground 1, there is then the success of Grounds 3, 4, 5, 6, and 7, and on that basis the application for sole use and occupation would need to be remitted to the Federal Circuit Court of Australia for rehearing. My orders though will be on the basis of the success of Ground 1.
For completeness, there are still other grounds of appeal that I have not yet dealt with, including Ground 10 wherein the assertion of apprehended bias is made. However, given my findings in relation to the grounds of appeal that I have addressed, there would be little point in considering the balance of the grounds. However, they are easily addressed given all but one of them has merit, and I will conclude by explaining that briefly.
Ground 2, asserted that the primary judge did not afford the husband procedural fairness by refusing to hear submissions from his representative. However, that ground is misguided.
In his summary of argument dated 24 April 2019, the complaint identified in relation to this ground of appeal is that his Honour failed to give “adequate reasons for rejecting the submissions put to him by Mr Henenberg on behalf of the appellant”. Thus, that is not a complaint of a lack of procedural fairness which is directed to a judge failing to provide a litigant with the opportunity to present their case.
Accordingly, the focus is the adequacy of the reasons, and that is also the issue raised more generally in Ground 9 which simply contended that his Honour failed to give adequate reasons. However, my findings as to the applicability of s 114AB(2), and the error in striking out the husband’s affidavit, clearly impact the brief reasons his Honour gave. In other words, in light of those errors, there can be no other result than his Honour’s reasons are inadequate.
Ground 8 asserts as follows:
The primary judge erred by failing to consider that the respondent had engaged in an abuse of process in circumstances were the respondent had previously sought and been denied an exclusion order in the Magistrates’ Court under the Family Violence Protection Act 2008 (Vic).
As can be seen though, this is a ground that is completely overtaken by Ground 1. There is no abuse of process, but his Honour erred in failing to dismiss, or at the very least, adjourn, the interim application before him.
As to Ground 11, that contends as follows:
The primary judge in making his decision to grant the injunction relied on erroneous facts put to him by the respondent that the appellant was a beneficiary of his late father’s estate and therefore had an interest in an unencumbered home to which he could relocate.
As identified above, there was no evidence before his Honour that the husband had an interest in his father’s home, and thus his Honour erred in proceeding on that basis.
That leaves Ground 10, namely where it is asserted that the primary judge demonstrated apprehended bias. However, what I have said about the same ground in the first appeal, applies equally to this ground, and it has no merit.
Conclusion as to the second appeal
Given the success of Ground 1, as referred to above, leave to appeal should be granted, and the appeal allowed. I hasten to add though that the same result follows from the success of Grounds 3, 4, 5, 6 and 7.
Orders 1 and 2 should be set aside, but as explained above, there is no utility in setting aside order 3.
As to the interim application by the wife seeking sole use and occupation of Property A, that must be dismissed. The alternative is to order that it be adjourned, but given I do not know what is happening with the substantive proceeding, that could be problematic.
In the event that Ground 1 in the second appeal was successful, the husband submitted that that should also result in the first appeal being allowed and the order for costs set aside. Plainly that would be so if the order for costs was made solely on the basis of, and in relation to, the wife’s interim application for sole use and occupation of Property A. However, although that interim application was before the primary judge on 22 October 2018, there was far more before his Honour. For example, it was the adjourned hearing in relation to the previous orders made by his Honour as to the entirety of the Initiating Application filed by the wife on 6 July 2018. In other words, it was to further consider the filing by the husband of responding documents, and his compliance with other orders such as that he provide full and frank discovery. He had still not complied with those orders and the adjournment was also sought and granted to provide him with further time to comply. Accordingly, the success of Ground 1 cannot provide a basis for allowing the first appeal and setting aside the order for costs.
Costs
At the conclusion of the hearing of the appeal I raised the issue of costs with the parties, noting that neither party had filed a Schedule of Costs as is required by Practice Direction No. 1 of 2017; Conduct of Appeals. However, given the unusual way this appeal has unfolded, namely it took the best part of 2019 to hear, as part of my judgment I proposed to provide in my orders a regime for the filing of written submissions as to costs. Further, I explained to the husband’s brother, that as part of his written submissions, in the event that one or other of the appeals is allowed but there is to be no order for costs, he could seek an order for costs certificates to issue, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 14 May 2020.
Associate:
Date: 14 May 2020
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