Hickey & Attorney-General for the Commonwealth of Australia
[2003] FamCA 217
•25 March 2003
[2003] FamCA 217
JFROBSON
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE Appeal No. NA 65 of 2001
File No. BR 72 of 1990
IN THE MATTER OF:
JAN-MAREE BERNADETTE ROBSON
Appellant/Wife
- and -
GARY FRANCIS ROBSON
First Respondent/Husband
- and -
CHARLES WILLIAM ROBSON
Second Respondent
- and -
YALGOLD PTY LTD (IN LIQUIDATION)
Third Respondent
- and -
MINE AND QUARRY EQUIPMENT PTY LTD (IN LIQUIDATION)
Fourth Respondent
- and -
MINE AND QUARRY EQUIPMENT INTERNATIONAL PTY LTD
Fifth Respondent
- and -
PACIFIC VENTURES PTY LTD
Sixth Respondent
REASONS FOR JUDGMENT
BEFORE: Finn, Holden and Dessau JJ
HEARD: 20 August 2002
JUDGMENT: 25 March 2003
APPEARANCES:
Mr Page of Senior Counsel with Mr Hamwood of Counsel (instructed by Pilgrim Geddes, Solicitors, 79 Price Street, Nerang, QUEENSLAND, 4211) appeared on behalf of the Appellant/Wife.
Mr North of Senior Counsel (instructed by Hunt & Hunt, Lawyers, Level 22, Central Plaza Two, 66 Eagle Street, Brisbane, QUEENSLAND, 4000) appeared on behalf of the First Respondent/Husband.
Mr Morris of Queen’s Counsel with Mr Murphy of Counsel (instructed by Russell & Company, Solicitors, Level 8, Navision House, 10 Market Street, Brisbane, QUEENSLAND, 4000) appeared on behalf of the Second Respondent.
There was no appearance by or on behalf of the Third, Fourth or Fifth Respondents, whose address for service is Tucker & Cowen, Solicitors, Level 15, 15 Adelaide Street, Brisbane, QUEENSLAND, 4000.
There was no appearance by or on behalf of the Sixth Respondent, whose address for service is unknown.
APPEAL SUMMARY
MATTER: ROBSON and ROBSON and OTHERS
APPEAL NUMBER: NA 65 of 2001 (BR 72 of 1990)
CORAM: Finn, Holden and Dessau JJ
DATE OF HEARING: 20 August 2002
DATE OF JUDGMENT: 25 March 2003
TRIAL JUDGE APPEALED: Jerrard J
DATE OF ORDERS APPEALED: 12 December 2001
CATCHWORDS: Family Law Act 1975 – ss 79 and 79A - whether an order which dismisses an application brought under s 79 of the Act (on the ground that there is no property available for distribution between the parties to the relevant marriage) is an order “made … under section 79” for the purposes of an application under s 79A(1) of the Act to set aside or vary the order
Caselaw considered:
Mullane v Mullane (1983) 158 CLR 436 at 445
Bigg v Suzi (1998) FLC ¶92-799
Gilbert v Estate of Gilbert (1990) FLC ¶92-125 at 77,838
Legislation considered:
Family Law Act 1975 – ss 4 (“decree”), 34(1), 79, 79A, 80(1)(k)
Acts Interpretation Act 1901 - s 15AB(1)(a).
Matrimonial Causes Act 1959 - s 86
Appeal allowed.
Wife’s application under s 79A remitted for rehearing
Costs certificates granted.
REPORTABLE
Introduction
This is an appeal by the wife, Jan-Maree Bernadette Robson, against an order (Order 5) made by Jerrard J on 12 December 2001, whereby his Honour dismissed an application by the wife for an order under s 79A of the Family Law Act 1975 (“the Act”).
This appeal raises the question as to whether an order which dismisses an application brought under s 79 of the Act (on the ground that there is no property available for distribution between the parties to the relevant marriage) is an order “made … under section 79” for the purposes of an application under s 79A(1) of the Act to set aside or vary the order.
The respondents both to the appeal and to the “s 79A” application, which was dismissed by Jerrard J, are:
the husband, Gary Francis Robson (“the First Respondent”);
the husband’s brother, Charles William Robson (“the Second Respondent”);
Yalgold Pty Ltd (in liquidation) (“the Third Respondent”);
Mine and Quarry Equipment Pty Ltd (in liquidation) (“the Fourth Respondent”);
Mine and Quarry Equipment International Pty Ltd (“the Fifth Respondent”); and
Pacific Ventures Pty Ltd (“the Sixth Respondent”).
Only the First and Second Respondents appeared at the appeal, and they did so to support the order which was the subject of the appeal.
Relevant background
The relevant background to this appeal, as it emerges from the material before us, is as follows.
The husband and the wife commenced cohabitation in 1984. They were married in 1985 and according to the wife’s affidavit (sworn 20 August 2001) separated permanently on 1 February 1990. A decree nisi dissolving the parties’ marriage was granted on 8 July 1991.
On 15 June 1990, the wife filed an application, in which she sought the following final orders:
(a)That by way of alteration of property interests the wife receive 50% of all that property real and personal of herself and the husband jointly, herself individually and her husband individually subject to (b) below;
(b)That the husband transfer to the wife all his right title and interest in and to the Ford Telstar motor vehicle presently in the wife’s possession.
On 3 October 1990, the husband filed an answer to the wife’s application in which he sought the following final orders:
(a)That the wife’s Application’s (sic) numbered (a) to (b) of her Application filed the 15th June, 1990 be dismissed.
(b)That in lieu of the Orders sought by the wife it be ordered as follows:
(i)That an account be taken of the net assets [of] the husband and wife as at the date of this Application and that the husband pay to the wife as and by way of property settlement and/or lump sum maintenance a cash sum equivalent to 15% of the net value of such assets.
(ii)Such further or other Orders as to (sic) this Honourable Court may deem meet.
On 18 October 1990, Deputy-Registrar Carew made the following order by consent:
3.That as and by way of partial property settlement, the husband within seven (7) days transfer to the wife all his right title and interest in the jointly owned Ford Telstar motor vehicle registration number 618-AQP, which vehicle is currently in the wife’s possession, such vehicle having an agreed value of $18,000.00 as at the date of this Order and that the said value of the vehicle shall be taken into account as a credit to the wife in final property settlement.
In late 1990 or early 1991, an agreement was reached between the parties that their property settlement proceedings would be held in abeyance until the outcome of certain proceedings in the Queensland Supreme Court between the Department of Customs and a company with which the husband was associated.
On 10 March 1998, the husband filed an application seeking orders that both the wife’s application for property settlement (filed 15 June 1990) and the husband’s cross-application (filed 3 October 1990) be dismissed. In support of that application, the husband filed both an affidavit and a financial statement.
In his affidavit, the husband purported to explain what had become of various assets which he had held at the time the property settlement proceedings had been instituted in 1990 (but which, in any event, were asserted to have then had a negative value of $45,535). The husband also gave the following evidence:
21. My present assets consist of my clothing and personal property with a value of approximately $1,000.00. My present income consists of wages of $384.00 per week. The company which employs me pays my travel expenses, which amount to approximately $750.00 per week.
On 21 April 1998, the wife filed a response (supported by an affidavit) seeking that the husband’s application (filed 10 March 1998) be dismissed.
The husband’s application (filed 10 March 1998) seeking dismissal of the applications for property settlement of both parties came before Bell J on 7 May 1998. His Honour heard submissions from the solicitors for both parties and then gave a short ex tempore judgment in which he reached the following conclusions:
The husband now says that he has no assets, save for an amount of $1,000.00; that he is in employment at $348.00 per week but that he gets considerable travel expenses of some $750.00 per week. He says, through his experienced solicitor, that for the former wife to proceed anywhere she must show that there are some assets for distribution, or a suspicion of same, but she has not done either and she is unable to do so.
Mr Cooper [solicitor for the wife], also an experienced solicitor, submits that the wife should be entitled, because she has filed an application for property settlement, to call upon the respondent to that application to discover. He has not got anything to discover, on the evidence before me; he has not owned any shares nor been interested in a company since 1991 (if my memory serves me correctly) and he says he has not got any interest in a company or shares at this stage.
I regret that I can see no reason why further cost should be incurred by both parties in proceeding to chase what appears to me to be a nil asset situation. I dismiss the wife’s application. I make no order as to costs.
Some discussion then ensued between his Honour and the two solicitors as to exactly which application or applications were dismissed. That discussion concluded with the following exchange:
MR COOPER [solicitor for the wife]: So the effect of the order your Honour is making is that all applications be dismissed?
HIS HONOUR: Yes, yes, both his and hers.
MR COOPER: Yes, so all the proceedings are terminated by your order.
HIS HONOUR: Be terminated, yes, thank you, Mr Cooper. Next matter.
Whether this order made by his Honour was ever engrossed or formally taken out is not clear to us. However, included in the material before us was a formal order dated 7 July 1998, which provided:
(1)That the Order which issued on 7 May 1998 be amended to order that all applications are dismissed.
According to her affidavit sworn 20 August 2001, the wife lodged an appeal against the order of Bell J, but subsequently withdrew that appeal.
On 20 August 2001 the wife filed a further application in which she sought a range of orders, which relevantly for present purposes included the following order:
1.That pursuant to section 79A 91)(a) (sic) the orders of Bell J of 7 May 1998 and 7 July 1998 be set aside.
The respondents to that further application by the wife were as set out in paragraph 2 of this judgment. It is unnecessary for present purposes to explain the relationship between the various respondents (other than the husband) on the one hand, and the husband and the wife on the other, or the relevance of those other respondents to the litigation in this Court between the husband and the wife.
The hearing before Jerrard J
The wife’s application (filed 20 August 2001) came before Jerrard J on 12 December 2001. It is clear from the transcript of that hearing, that of the various applications made by the wife in her application document, his Honour concerned himself primarily with the application for an order to set aside pursuant to s 79A(1)(a) of the Act the orders of Bell J of 7 May 1998 and 7 July 1998. (See for example, Transcript p 7 line 20).
It is useful at this point to set out the terms of s 79A(1) (emphasis added):
79A(1) Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that -
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
…(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA) ), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order, or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
During the course of the hearing on 12 December 2001, his Honour raised with Counsel for the wife, the question whether the order which Bell J had made dismissing the parties’ applications for property settlement, could be said to be an order “made … under section 79”, since the only order which can be made under s 79 (or at least under s 79(1)) is an order “altering the interests of the parties” in the property.
Again we consider it useful at this point to set out s 79. For the sake of completeness we will set out all the existing sub-sections of s 79 – although it is clear that his Honour’s concern was only with s 79(1):
79(1) In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.
79(1A) An order made under sub-section (1) in proceedings with respect to the property of the parties to a marriage or either of them may, after the death of a party to the proceedings, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
79(1B) The court may adjourn proceedings with respect to the property of the parties to a marriage or either of them, except where the parties to the proceedings are -
(a) parties to concurrent, pending or completed proceedings for principal relief;
(b) parties to a marriage that has been dissolved or annulled under the law of an overseas country, where that dissolution or annulment is recognized as valid in Australia under section 104 ; or
(c) parties to a marriage who have been granted a legal separation under the law of an overseas country, where that legal separation is recognized as valid in Australia under section 104 ,
on such terms and conditions as it considers appropriate, for such period as it considers necessary to enable the parties to the proceedings to consider the likely effects (if any) of an order under this section on the marriage or the children of the marriage, but nothing in this sub-section shall be taken to limit any other power of the court to adjourn such proceedings.
79(1C) Where the period for which a court has adjourned proceedings with respect to the property of the parties to a marriage or either of them as provided by sub-section (1B) has not expired and -
(a) proceedings for principal relief are instituted by one or both of those parties;
(b) the marriage is dissolved or annulled under the law of an overseas country and the dissolution or annulment is recognized as valid in Australia under section 104 ; or
(c) the parties are granted a legal separation under the law of an overseas country and the legal separation is recognized as valid in Australia under section 104 ,
either party to the first-mentioned proceedings may apply to the court for the hearing of those proceedings to be continued.
79(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
79(3) (Omitted by No 63 of 1976, s 25.)
79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account -
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
(d) the effect of any proposed order upon the earning capacity of either party to the marriage;
(e) the matters referred to in sub-section 75(2) so far as they are relevant;
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
79(5) Without limiting the power of any court to grant an adjournment in proceedings under this Act, where, in proceedings with respect to the property of the parties to a marriage or either of them, a court is of the opinion -
(a) that there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and
(b) that an order that the court could make with respect to the property of the parties to the marriage or either of them if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the marriage than an order that the court could make immediately with respect to the property of the parties to the marriage or either of them,
the court may, if so requested by either party to the marriage, adjourn the proceedings until such time, before the expiration of a period specified by the court, as that party to the marriage applies for the proceedings to be determined, but nothing in this sub-section requires the court to adjourn any proceedings in any particular circumstances.
79(6) Where a court proposes to adjourn proceedings as provided by sub-section (5), the court may, before so adjourning the proceedings, make such interim order or orders or such other order or orders (if any) as it considers appropriate with respect to any of the property of the parties to the marriage or of either of them.
79(7) The court may, in forming an opinion for the purposes of sub-section (5) as to whether there is likely to be a significant change in the financial circumstances of either or both of the parties to the marriage, have regard to any change in the financial circumstances of a party to the marriage that may occur by reason that the party to the marriage -
(a) is a contributor to a superannuation fund or scheme, or participates in any scheme or arrangement that is in the nature of a superannuation scheme; or
(b) may become entitled to property as the result of the exercise in his or her favour, by the trustee of a discretionary trust, of a power to distribute trust property,
but nothing in this sub-section shall be taken to limit the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of a party to the marriage.
79(8) Where, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies -
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion -
(i) that it would have made an order with respect to property if the deceased party had not died; and
(ii) that it is still appropriate to make an order with respect to property,
the court may make such order as it considers appropriate with respect to any of the property of the parties to the marriage or either of them; and
(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
79(9) The Family Court, or a Family Court of a State, shall not make an order under this section in proceedings with respect to the property of the parties to a marriage or either of them (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless -
(a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or Deputy Registrar of the Family Court, or a Registrar or Deputy Registrar of the Family Court of that State, as the case may be;
(b) the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).
The decision of Jerrard J
Notwithstanding the submissions then made to him by Counsel for the wife, his Honour ultimately concluded that there was no power under s 79A to set aside the orders which Bell J had made dismissing the applications for property settlement. The essential passages from his Honour’s ex tempore reasons are as follows:
16.The wife has asked for orders setting aside Bell J's orders. Although I have great sympathy for her, I think that she has a significant problem. The problem which I see in her applications with regard to those orders is this: s. 79 of the Family Law Act provides that in proceedings with respect to the property of parties to a marriage, the court may make such order as it considers it appropriate altering the interests of the parties in the property, including orders settling property on parties in substitution for any interest, and other orders that are specified. The whole purpose of s. 79 is to allow proceedings of the sort that the wife brings to have some effective result, …
17.However, although a power is given by s. 79A to set aside orders made pursuant to that section, I think it is a somewhat limited power. It will be appreciated that usually when orders which are unsatisfactory are made, those are corrected by appeal, and the normal process for setting right what has been done wrong by a judge is by appealing the order of the judge. This has not happened in this case, in the sense that although an appeal was filed from the orders made by Bell J, it was not pursued to hearing before the Court of Appeal. Accordingly, there has not been an appeal argued against those orders, and there is no application, as I understand it, for leave from the Full Court of this Court to appeal out of time those orders, or to lead fresh evidence for the purpose of setting aside those orders.
18.Instead, an application is made under s. 79A. …
Here it is said that Bell J in May and July of 1998 made orders "under s. 79." To my mind, what Bell J did was exercise a power recognised as existing by the Full Court of this Court, in the reported judgment of Bigg v. Suzi, reported in 22 FLR 700, and in particular at page 711 of those reports. The Full Court held that this Court has the necessary power to dismiss or permanently stay applications which cannot succeed, and in so doing it referred to the judgment of Kirby J in Linden v. Commonwealth II (1996) 136 ALR 251 at 255,256, where Kirby J wrote, with respect to Order 26 rule 18 sub-rule (2) of the High Court rules, that:
“If it was clear that proceedings were doomed to fail, the court should dismiss the action to protect the defendant from being further troubled and to save the plaintiff from further cost and disappointment.”
(The relevant High Court rules are, by reasons of the provisions of s. 38(2) of the Family Law Act, applicable in this court, in the absence of any other applicable rules of court).
19.I am satisfied, particularly from Bell J's own description of what he was doing, that his Honour clearly understood that he had before him an argument that the applicant wife could not show that the respondent husband had any assets, and accepting as his Honour did the submissions of Mr Cooper, solicitor, appearing for the wife, and the submissions of the experienced solicitor appearing for the husband, that the wife could not show the husband had any assets, his Honour said, and I quote:
“I regret that I can see no further reason why further costs should be incurred by both parties in proceeding to chase what appears to me to be a nil asset situation. I dismiss the wife's application.”
In that ruling, his Honour was foreshadowing exactly the decision given in Bigg v. Suzi, (if it had not published before then), and was exercising the jurisdiction clearly identified by the Full Court in that case. He was saving the parties from what he thought would be wasted costs and disappointment, in a proceeding which his Honour thought must be doomed to fail.
20.Try as I might, I cannot persuade myself that in doing that, his Honour made an order "under s. 79" in proceedings with respect to the property of the parties to a marriage. I am entirely satisfied he made an order in proceedings with respect to the property of the parties to a marriage, but the order he made was not in any sense an order that altered their interest in their property; it was simply an order that dismissed all the wife's applications. In the result, I do not think that any grounds exist for making the order sought in the application filed on 20 August with respect to the orders of Bell J in May or July 1998, and when these proceedings end today I will formally dismiss those applications.
Having dealt with certain other matters, Jerrard J then made the following order:
(5)That the application in Form 3 filed 20 August 2001 for orders pursuant to Section 79A setting aside the Orders of Justice Bell made 7 May 1998 and 7 July 1998 be dismissed.
It is against that order that the present appeal is brought. Before considering the issues raised on the appeal, the following matter should also be mentioned by way of background.
Further relevant background: the partial property settlement order
During the course of the submissions of Counsel for the husband at the hearing on 12 December 2001, Jerrard J raised the question of whether the wife could apply under s 79A(1)(a) to set aside the partial property settlement order made by Deputy-Registrar Carew on 18 October 1990 on the basis of the matters which were relied upon to support the application to set aside the orders of Bell J of May and July 1998. (See Transcript pp 28-30).
Shortly after his Honour raised this question, Counsel for the wife made an oral application for “leave to add to the application of the wife that the orders made for partial property settlement by ... Deputy Registrar Carew, on 18 October 1990 be set aside ...[o]n the grounds that there has been a miscarriage of justice by reason of the suppression of evidence and/or giving of false evidence ... [b]y the husband”. (See Transcript p 31 line 35 to p 32 line 4).
It appears from the transcript that shortly after that oral application, Counsel for the wife may have provided his Honour with a written application to amend the application which was before his Honour, and that his Honour granted leave for such amendment. (See Transcript p 35 line 25 to p 38 line 7).
Counsel for the husband, having earlier foreshadowed an application for an adjournment (Transcript p 35 line 12), then finally made an oral application for the adjournment of all applications (Transcript p 40 lines 15-16). In the event, however, it appears to have been agreed that his Honour should proceed to determine that day only the wife’s application to set aside the orders of Bell J on 7 May and 7 July 1998, and that he would adjourn to a later date her amended application to set aside the partial property settlement order of 18 October 1990.
At the conclusion of his reasons for judgment in relation to the application by the wife to set aside the orders of Bell J of 7 May and 7 July 1998, Jerrard J explained that the wife’s amended application to set aside the partial property settlement order of 18 October 1990 would be adjourned for further hearing. (See paragraphs 21-23 of his judgment).
However, we were informed during the hearing of the appeal that the wife’s legal advisers ultimately withdrew that amended application to set aside the partial property settlement order of 18 October 1990.
The grounds of appeal and the submissions made on behalf of the appellant
The grounds of appeal contained in the wife’s Notice of Appeal are as follows:
1.That the trial Judge erred in finding that the orders made by Bell J on the 7 May 1998 and the 7 July 1998 were not orders made under section 79 of the Family Law Act.
2.That the trial Judge erred in finding that section 79A of the Family Law Act applies only to orders made under section 79 of the Family Law Act which alter the interests of parties in property.
3.That the trial Judge erred in finding that the orders made by Bell J on the 7 May 1998 and the 7 July 1998 were made by use of the implied power of the Court to dismiss proceedings that were doomed to failure.
4.That the trial Judge erred in finding that the appropriate remedy for the wife was an application for leave to appeal from the orders of Bell J made on the 7 May 1998 and the 7 July 1998 upon an application for leave to adduce fresh evidence.
It will be seen that essentially the wife’s complaint is that Jerrard J was in error in concluding that the order of Bell J dismissing the parties’ applications for property settlement was not an order made under s 79 and therefore could not be set aside under the provisions of s 79A.
In support of the assertion that Jerrard J was in error in holding that an order dismissing an application for property settlement was not an order “made … under section 79”, Senior Counsel for the wife submitted that “the regime” imposed by s 79 is not limited to an order altering the interests of parties in property, but rather is “a regime” which involves a number of steps, the first of which is to identify and value the property of the parties. (In support of this proposition, Counsel relied on the Full Court decisions in Pastrikos and Pastrikos (1980) FLC ¶90-897; Ferraro and Ferraro (1993) FLC ¶92-335; Davut and Raif (1994) FLC ¶92-503; Fane-Thompson and Fane-Thompson (1981) FLC ¶91-053; Whitely and Whitely (1996) FLC ¶92-684 and Phillips and Phillips (2002) FLC ¶93-104).
Thus it was submitted (at least as we understood the submission) that an order dismissing an application for property settlement on the ground that there is no property, must be an order “made … under section 79”.
It was further submitted by Senior Counsel for the wife that the source of the power for the order made by Bell J dismissing the parties’ applications for property settlement was to be found in s 80 of the Act, and in particular in s 80(1)(k).
Section 80 sets out the orders which a Court can make when “exercising its powers under” Part VIII of the Act (which includes ss 79 and 79A). Paragraph 80(1)(k) provides:
80(1) The court, in exercising its powers under this Part, may do any or all of the following:
…
(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; …
Thus, having determined that there was no property available for distribution between the parties, Bell J had, according to Senior Counsel for the wife, used the power in s 80(1)(k) to make the order dismissing the parties’ applications for property settlement.
The submissions on behalf of the respondents
It was submitted both by Senior Counsel for the husband and by Senior Counsel for the Second Respondent, that as a matter of statutory interpretation, the only order which on the face of s 79 can be made under that section is “such order as [the Court] considers appropriate altering the interests of the parties in the property”. In support of this proposition, some reliance was placed on the statement in the joint judgment of the High Court in Mullane v Mullane (1983) 158 CLR 436 at 445 that:
In our opinion, therefore, s.79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them.
Thus, it was submitted for the respondents that an order dismissing an application for an alteration of property interests (that is, a refusal to make an order altering interests in property) is not an order “made … under section 79” for the purposes of an application under s 79A.
In support of this interpretation, reliance was placed (pursuant to s 15AB(1)(a) of the Acts Interpretation Act 1901) on the heading to s 79A (being “Setting aside of orders altering property interests”), as confirmation that the reference in s 79A(1) to an “order made … under section 79” is a reference only to an order “altering the interests of the parties” in property.
It was also submitted on behalf of the respondents that it was clear that the legislature had envisaged that there would be cases in which a Court would decline to make an order under s 79(1) altering interests in property, given the following sub-sections:
· s 79(2), which provides that the Court “shall not make an order under [s 79]” unless satisfied of certain matters;
· s 79(4), which by the use of the expression “(if any)” contemplates circumstances where no order is made under s 79; and
· s 79(9), which also provides that a Court “shall not make an order under [s 79]” unless certain conditions are fulfilled.
But notwithstanding that the legislature had envisaged that there would be circumstances where an order would not be made on an application brought under s 79, the legislature had not, it was submitted, given s 79A any operation in such circumstances.
As to the source of the power used in this case to dismiss the applications of both parties for final orders for property settlement, it was submitted on behalf of the respondents that such power is to be found in s 34(1) of the Act, or pursuant to an inherent or implied power as discussed in Bigg v Suzi (1998) FLC ¶92-799.
Section 34(1) is as follows:
34(1) The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.
In Bigg v Suzi, the Full Court accepted (at paragraph 5.4) that this Court has the power (either as an inherent or, more correctly, an implied power, or by virtue of an application of the High Court Rules pursuant to s 38(2) of the Act) to summarily dismiss or permanently stay a proceeding in which no reasonable or probable cause of action is shown, or which for any reason, the Court is satisfied cannot possibly succeed.
Discussion
The fundamental question in this case is whether an order dismissing an application for final orders with respect to property (on the ground that there is no property) is an order “made … under section 79” and thus according to the terms of s 79A(1) is capable of being set aside or varied under that sub-section.
In its original form in the Act (as passed in 1975), s 79 conferred at least expressly on the Court the power to make only one order, being an order “altering the interests of the parties in the property”. The original form of s 79 was as follows:
79. (1) In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it thinks fit altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(3) The court shall not make an order under this section unless a decree nisi for dissolution of the marriage, or a decree of nullity of the marriage, has been made or proceedings for a decree of dissolution or nullity of the marriage have been instituted in that court or in another court having jurisdiction under this Act or a party has filed in the court a notice under section 15 [being a notice seeking counselling].
(4) In considering what order should be made under this section the court shall take into account -
(a)the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of the property, or otherwise in relation to the property;
(b)the contribution made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of homemaker or parent;
(c)the effect of any proposed order upon the earning capacity of either party;
(d)the matters referred to in sub-section 75 (2) so far as they are relevant; and
(e)any other order made under this Act affecting a party.
By an amending Act in 1976 (No. 63 of 1976), s 79(3) was deleted, and importantly for present purposes, s 79A (with the marginal note: “Setting aside of orders altering property interests”) was inserted. In its original terms, s 79A provided as follows:
79A. (1) Where, on application by a person affected by an order made by a court under section 79, the court is satisfied that the order was obtained by fraud, by duress, by the giving of false evidence or by the suppression of evidence, the court may, in its discretion, set aside the order and, if it thinks fit, but subject to sub-sections 79 (2) and (4), make another order under section 79 in substitution for the order so set aside.
(2) In the exercise of its powers under sub-section (1), a court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchase or another person interested.
Thus the question, which arises in this case, as to whether an order dismissing an application for an order under s 79 is an order capable of being set aside or varied under s 79A(1), could well have arisen as soon as s 79A was introduced. However, we are not aware of any previous case in which the question has arisen.
It is also relevant to note that apart from the deletion of s 79(3), s 79 was still in its original form at the time of the High Court decision in Mullane. Furthermore, in relation to that decision, it must be remembered that the essential question in that case was whether an order for exclusive occupation of a property was an order altering interests in property. Thus we do not regard the decision in Mullane as being of any great assistance in answering the question which arises in this case.
In the twenty years or so since the decision in Mullane, s 79 has been amended many times. It will be seen that in its current form (as set out in paragraph 23 above), it now confers power on the Court to make, in addition to an order under s 79(1) altering interests in property, a range of other orders, being orders for adjournments under s 79(1B) or under s 79(5); interim orders under s 79(6) where proceedings have been adjourned under s 79(5); and orders under s 79(8) after the death of a party to the marriage (although such orders would be likely to be orders altering interests in property).
Similarly, it will be seen from the present form of s 79A(1) (as set out in paragraph 21 above) that that sub-section has been the subject of substantial amendment. In addition, ss 79A(1AA), (1A), (1B), (1C) and (3) have been added. None of these sub-sections have any present relevance save perhaps for s 79A(3), which provides that a reference in s 79A to “an order made by a court under section 79” includes a reference to an order made under s 86 of the repealed Act, being the Matrimonial Causes Act 1959.
Section 86 of the repealed Act was in the following terms:
86. (1.) The court may, in proceedings under this Act, by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such a settlement of property to which the parties are, or either of them is, entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of the case.
(2.) The court may, in proceedings under this Act, make such order as the court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of, the marriage of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of them.
(3.) The power of the court to make orders of the kind referred to in this section shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of opinion that there are special circumstances that justify the making of such an order for the benefit of that child.
However, the description in s 79A(1) of the type of order which can be varied under that sub-section, being an order “made … under section 79”, has not been amended, notwithstanding that s 79 has been amended to provide for the making of orders under ss 79(1B), (5), (6) and (8), as well as under s 79(1).
Thus, and contrary to the submissions made on behalf of the respondents, orders for adjournments made under ss 79(1B) or (5), or interim orders made under s 79(6), or orders altering interests in property made after the death of a party to the marriage made under s 79(8), must all be capable of being varied or set aside under s 79A, since all such orders would come under the description of “an order made … under section 79”. It is quite possible that there could be circumstances where a person affected, for example, by an order for an adjournment under s 79(5) on the ground that there is likely to be a significant change in the financial circumstances of the parties, may wish to seek relief under s 79A.
It cannot therefore be said (as the respondents would have it said) that the only order capable of being varied or set aside under s 79A(1) is an order altering the interests of the parties in the property.
But this conclusion that there can be orders made under s 79 which make provision for matters other than the alteration of interests in property, and which can be set aside or varied under s 79A, does not assist in answering the question whether an order dismissing an application for orders under s 79 is an order “made … under section 79”.
As to the power of the Family Court to dismiss applications or proceedings, there are express conferrals of such a power in relation to certain types of proceeding under the following provisions of the Act:
…
44(3AA) However, if such proceedings are instituted with the consent of both of the parties to the marriage, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.
…
45(1) Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that other proceedings that have been so instituted or are being so continued in relation to the same marriage or void marriage or the same matter are pending in another court, the first-mentioned court may stay the first-mentioned proceedings for such time as it considers appropriate or may dismiss the proceedings.
…
65D(3) If the application for the parenting order was made as a result of the adjournment under paragraph 70NG(1) (c) of proceedings under Subdivision B of Division 13A of Part VII :
(a) the court must hear and determine the application as soon as practicable; and
(b) if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that Subdivision.
…
70NP(2) If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 70NJ in respect of the contravention of the order must:
(a) adjourn those proceedings until the prosecution has been completed; or
(b) dismiss those proceedings.…
112AM(2) If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 112AD in respect of the contravention of the order shall either:
(a)adjourn those proceedings until the prosecution has been completed; or
(b) dismiss those proceedings.
…
118(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious -
(a) dismiss the proceedings;
If the Court exercised the power to dismiss a proceeding under any of the above-mentioned provisions, there would be no question that the order was “made under” the relevant provision of the Act.
However, it would seem self-evident that the Court’s power to dismiss an application (or proceedings) cannot be limited to the above-mentioned circumstances where an express power to dismiss has been conferred. Clearly the Court must have power, having heard an application (be it for dissolution of marriage or for any other form of relief available under the Act), to dismiss that application on its merits if it considers it necessary to do so. Similarly, the Court must have power to dismiss an application on a summary or threshold basis where the Court is satisfied that it has no jurisdiction to entertain the application, or where the Court is satisfied that no reasonable cause of action is shown, or that for some other reason, the application could not possibly succeed.
The question then becomes what is the source of the power to make an order dismissing an application (or proceedings) in such circumstances.
We understand the respondents to contend that the source of the power to dismiss an application (in cases where no express power to dismiss is conferred) is s 34(1) which we have already set out, but which we will here for convenience repeat:
34(1) The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.
If s 34(1) is the source of the power to dismiss an application for orders for alteration of property interests, then it would have to be accepted that an order dismissing such an application is an order made under s 34(1) and not under s 79, and as such is not capable of being varied or set aside under s 79A.
However, we doubt that s 34(1) can be regarded as the source of power to dismiss applications or proceedings for the reason that the section only has an operation in cases in which the Court “has jurisdiction”, and yet the power to dismiss an application or proceeding is obviously a necessary power in cases where the Court does not have jurisdiction.
We think that it can well be argued that a power to make an order dismissing an application for an order altering interests in property is a power which can be taken to be included by implication in the express power granted by s 79(1) to make an order altering interests in property, and that accordingly an order dismissing an application under s 79(1) can be said to be “an order made … under section 79”.
As mentioned earlier, the respondents sought to rely on the reference in ss 79(2) and (9) to the circumstances in which the Court may not make an order under s 79(1), and also on the reference in s 79(4) to the possibility that the Court may not make an order, as indicating that although the legislature had envisaged that in some proceedings for alteration of interests in property, an order would not be made, it had nevertheless chosen not to provide relief under s 79A in such circumstances.
For our part, we think that it might equally be argued that because ss 79(2), (4) and (9) contemplate the dismissal of an application for, or refusal to make, an order altering interests in property that there is to be implied into s 79(1) a power to make an order dismissing an application (or proceedings) for alteration of property interests.
It may well be however, that it is unnecessary to imply into s 79, or indeed into any similar section of the Act, a power to dismiss an application for orders under that section, and that the question which arises in this case can simply be answered by reference to the definition of decree in s 4 of the Act. That definition is as follows:
decree means decree, judgment or order, and includes a decree nisi and an order dismissing an application or refusing to make a decree or order;
Having regard to this definition, it might well be concluded that the legislature intended that the concept or term of “an order” is to include “an order dismissing an application or refusing to make a decree or order”, and thus the expression “order made … under section 79” can be taken to include an order dismissing an application for an order under s 79.
Conclusion
We well recognise that there are persuasive arguments for the conclusion that as a matter of statutory construction, an order dismissing an application (or proceedings) for alteration of property interests is not an order “made … under section 79” for the purposes of an application under s 79A. Such construction arguments include:
· the fact that notwithstanding the various orders now expressly provided for in s 79, no express provision has been made anywhere in that section (nor indeed in the list of powers provided in s 80) for an order dismissing an application for an order altering property interests; and
· the fact that what was once the marginal note and is now the heading to s 79A remains in its original form, referring only to “Setting aside orders altering property interests”.
However, as earlier indicated, we think that it can also well be argued, particularly given that ss 79(2), (4) and (9) contemplate that no order altering property interests might be the outcome of an application for such an order, that the power to make an order dismissing an application for an order altering interests in property exists by implication in s 79. Alternatively, it can be argued that the terms of the definition of “decree” are an indication of a legislative intention that the expression “order” includes an order dismissing an application for an order or refusing to make an order.
We acknowledge that the opposing arguments in this case are finely balanced. However, when we have regard to the following passage from the joint judgment of Strauss, Lindenmayer and Baker JJ in Gilbert v Estate of Gilbert (1990) FLC ¶92-125, we think that the better view is that an order dismissing an application for orders altering interests in property can be held to be “an order made … under section 79” for the purposes of s 79A (at 77,838):
Section 79A is a remedial section intended to overcome miscarriages of justice and certain other specific difficulties or hardships and should be construed liberally to effect its intended purpose. In the result we consider that in the present case there is jurisdiction to entertain proceedings under sec. 79A of the Act, notwithstanding that the circumstances which arise here have not been mentioned specifically in this section.
Accordingly, we would conclude that there is substance in the first two grounds of appeal, and that the appeal should therefore be allowed. In these circumstances, it is unnecessary to discuss the remaining grounds of appeal.
We therefore propose to set aside the order of Jerrard J which is the subject of the appeal and to remit the wife’s application under s 79A for re-hearing with such expedition as it can be given in the Brisbane Registry of this Court.
Costs of the appeal
At the conclusion of the hearing of the appeal, we invited and received oral submissions in relation to the costs of the appeal in the event that the appeal either succeeded or failed.
In the event that the appeal was to succeed, all three parties sought certificates under the Federal Proceedings (Costs) Act 1981. Given the nature of the issue raised by this appeal and the conclusion which we have reached, we consider that this is an appropriate case for the grant of certificates to the appellant under s 9 and to the respondents under s 6.
Orders
That the appeal be allowed.
That Order 5 of the orders made by the Honourable Justice Jerrard on 12 December 2001 be set aside.
That the wife’s application under s 79A filed 20 August 2001 be remitted for re-hearing with such expedition as it can be given in the Brisbane Registry of this Court.
That the Court grants to the Appellant Wife a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Wife in respect of the costs incurred by the Appellant Wife in relation to the appeal.
That the Court grants to the Respondent Husband and to the Second Respondent each a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Husband and to the Second Respondent in respect of the costs incurred by the Respondent Husband and by the Second Respondent in relation to the appeal.
I certify that the preceding 78 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court
[M. Donaldson]
Associate
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