Hughes & Hughes
[2013] FamCAFC 146
•25 September 2013
FAMILY COURT OF AUSTRALIA
| HUGHES & HUGHES | [2013] FamCAFC 146 |
| FAMILY LAW – APPEAL – Interpretation of a consent order made in 2000 – Trial Judge found the meaning of the order was clear – The transcript of the original proceedings prepared at the direction of the Full Court confirmed the trial Judge’s interpretation – No merit in the appeal. FAMILY LAW – COSTS OF APPEAL – Appellant wholly unsuccessful – Appellant continued to pursue the appeal following receipt of the transcript – Appellant to pay respondent’s cost of the appeal. |
| Attorney-General v Sillem (1863) 159 ER 178 Brisbane City Council v Attorney-General for Queensland (1908) 5 CLR 695 Langford and Coleman (1993) FLC 92-346 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Repatriation Commission v Nation (1995) 57 FCR 25 Secretary, Department of Social Security v Rurak (1990) 99 ALR 17 Yunghanns v Yunghanns (1999) FLC 92-836 |
| APPELLANT: | Mr Hughes |
| RESPONDENT: | Mrs Hughes |
| FILE NUMBER: | SOA | 36 | of | 2012 |
| APPEAL NUMBER: | MLC | 3708 | of | 2010 |
| DATE DELIVERED: | 25 September 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Finn, Thackray and Strickland JJ |
| HEARING DATE: | 7 March 2013 and written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 April 2012 |
| LOWER COURT MNC: | [2012] FamCA 198 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Mort |
| COUNSEL FOR THE RESPONDENT: | Mr Indovino |
| SOLICITOR FOR THE RESPONDENT: | Barbour Arnold & Cousins |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hughes & Hughes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: MLC 3708 of 2010
File Number: SOA 36 of 2012
| Mr Hughes |
Appellant
And
| Mrs Hughes |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Hughes (“the husband’) has appealed against the order of Macmillan J made on 4 April 2012 requiring him to pay to Mrs Hughes (“the wife”) all his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund.
The order was made by way of enforcement of what her Honour decided was an obligation imposed by paragraph 3 of consent orders made by Carter J on 13 December 2000 (“Order 3”).
The outcome of this appeal is dependent upon the meaning of Order 3, which is set out below (the emphasis applied to the word “all” appeared in the original):
3.That upon the husband becoming eligible to receive any further benefit or payment pursuant to any membership of any superannuation fund(s) to which either he or his employer or both have contributed including but not limited to the [M SUPERANNUATION FUND] and the [D SUPERANNUATION FUND] or such other ADF fund into which the [D Superannuation Fund] may be rolled over by [M Investment Management Ltd] whatsoever (“the fund”) or any retirement, termination, long service leave, sick leave or holiday payment on his termination or retirement from employment (“the payments”) the husband or his legal personal representatives sign all documents and do all things necessary to effect payment to the wife forthwith of all these payments and entitlements due and payable to the husband from the fund (“the wife’s entitlements”).
The wife’s case before Macmillan J was that Order 3 entitled her to receive all of the husband’s superannuation benefits upon him becoming eligible to receive them. The husband’s case was that Order 3 entitled him to retain all superannuation accumulated up to the date of the order and that the wife was only to receive any benefits arising from contributions made to his superannuation fund after the order. No further contributions were made after the order was made. Accordingly, if the husband’s interpretation is correct, he would be entitled to keep all of the superannuation.
Macmillan J accepted that if there was any ambiguity in the order, she could look to evidence of the surrounding circumstances to aid in its interpretation. However, her Honour found there was no ambiguity and held that the wife was entitled to all of the husband’s superannuation entitlements.
Having heard argument on the appeal, we were not convinced that the meaning of Order 3 was clear and we therefore decided to obtain the transcript of the proceedings at which the order was made. The transcript was obtained and distributed to the parties, who were then invited to make further submissions as to the impact the transcript should have on the proceedings.
The transcript makes plain that Carter J clearly understood she was being asked to make an order by consent for the wife to receive all of the husband’s superannuation – regardless of when the entitlement accrued. The wife unsurprisingly submits that the transcript puts the issue beyond doubt, but the husband continues to advocate his original interpretation of the order.
The hearing before Carter J in December 2000
The proceedings that were determined by Carter J were commenced by the wife in December 1999, following the end of her long marriage to the husband.
The husband largely failed to participate in the proceedings and the matter was therefore set down for hearing on an undefended basis. Notwithstanding his failure to file documents as previously ordered, the husband attended on 13 December 2000 when the matter was listed before Carter J.
At the commencement of the hearing, the wife’s counsel asked Carter J to stand the matter down for discussions concerning an offer of settlement made to the husband. The following exchange then took place (Transcript, 13 December 2000, p 3, line 10 – p 4, line 10):
HER HONOUR: Yes. [Mr Hughes], are you prepared to have some discussions with Mr Drever with a view to seeing whether the matter can be resolved?
[MR HUGHES]: Yes. My presence here today is to bring some resolution to the proceedings.
HER HONOUR: Yes, well I have to say I’ve noted on the file your lack of appearance on other occasions when perhaps the same endeavours could have been pursued, however, there may well be good explanations for that and the attitude today is, I suppose, hopeful, let’s say. Yes, the matter - - -
MR DREVER: Your Honour – sorry, your Honour, if I could mention that I would foreshadow that if we can’t reach a resolution today then I would be seeking that the matter be listed in Melbourne. It has to proceed in the Family Court because of the combination of the gross values of the house and the various superannuation funds is well in excess of $300,000. If it is to proceed as an undefended matter it could proceed before a federal magistrate.
HER HONOUR: Yes, well I will indicate to you, [Mr Hughes], that – and I repeat that there may be a perfectly valid explanation for what appears to be a lack of interest, as it were, in the proceedings but the court requires both parties to make full disclosure of all their financial interests. In the present case there were specific orders made by a judicial registrar requiring certain information to be provided. Even if those orders hadn’t been made it is not a situation where the court looks lightly on people who fail to live up to their obligations to make a full and frank disclosure of all financial matters. So that should be borne in mind, I think, throughout your discussions. As I said, there may be a perfectly valid explanation for all of this and in the event the matter doesn’t determine I look forward to hearing it.
MR DREVER: Thank you, your Honour.
HER HONOUR: The matter will be stood down. There has been information provided by [M Investment Management]. Could you please call [Mr Hughes] back in please?
MR DREVER: I ask that that be released, your Honour.
HER HONOUR: Yes. [Mr Hughes], I’ve just been – I’ve just noticed what was handed up to me, a response to the subpoena from [M Investment Management Limited]. I propose, unless you convince me otherwise to make that available for both of you to inspect this information.
[MR HUGHES]: There’s ..... your Honour. Whatever [M] put forward to the court is a matter for the record. I’ve got no need to - - -
HER HONOUR: Well then we will make it available for inspection and you, of course, may look at it as well. Yes, thank you.
The matter was then stood down. When it was recalled, this crucial exchange occurred (Transcript, 13 December 2000, p 4, line 19 – p 11, line 11, emphasis added):
MR DREVER: If it please your Honour, I appear on behalf of the applicant wife in that matter and [Mr Hughes] is in court.
HER HONOUR: Yes. Your - - -
MR DREVER: We have minutes before you that relate to those issues that have been canvassed and discussed by my client and her husband and are in terms that, I stress very strongly, your Honour, are in the terms that my client seeks to resolve the issues in this matter as distinct to matters that I have raised with my client that are relevant to these issues. I might – in effect, the orders prescribed, your Honour, that my client retains all the matrimonial home which has a current net equity of approximately $106,000.
HER HONOUR: Just a moment. 106?
MR DREVER: $106,000.
HER HONOUR: Yes.
MR DREVER: That she receive the entirety of the fund which is currently known as the [M Superannuation Fund], which presently holds an amount of $180,000 gross, upon the husband achieving the events that are set out in paragraph 3 of the orders. The wife retains - - -
HER HONOUR: Just a moment please. What are the events in paragraph 3?
MR DREVER: Upon the husband becoming eligible to receive his benefits.
HER HONOUR: I see.
MR DREVER: Pursuant to the membership of the fund.
HER HONOUR: All right. So she – that’s deferred until he becomes eligible.
MR DREVER: That’s correct.
HER HONOUR: Yes, right.
HER HONOUR: The husband is aged 54 years. There is a likelihood of that occurring in – upon his age of 55 years. The wife retains a motor vehicle with net equity value of $6000.
HER HONOUR: Yes.
MR DREVER: And the wife retains the majority of the furniture and chattels in the home, with a net equity of about $10,000, your Honour. It has been agreed between the parties.
HER HONOUR: Yes.
MR DREVER: Now, your Honour, I think this case can be best described in the circumstances, is that events have occurred which significantly relate to the outcome prior to separation on the wife achieving or receiving legal advice. The subpoenaed documents that are before the court indicate that a sum of $740,000 was received by the husband and as a result of his change of status for his employment and those moneys were deposited with the [M Superannuation Fund]. Of those moneys, prior to date of separation, some $605,000 were transferred by the husband to a self-managed fund, known as the [D Superannuation Fund].
HER HONOUR: Yes.
MR DREVER: I am informed by the – and those transfers, your Honour, are clearly recorded in the statements produced on subpoena by [M Superannuation Fund], the investment arm of those funds.
HER HONOUR: Yes.
MR DREVER: The financial statement, sworn and filed by the husband at the directions hearing of this matter, refers only to his current entitlements to the [M Superannuation Fund] and make no reference to the [D Superannuation Fund].
HER HONOUR: I don’t have any documents for the 17th for the husband.
MR DREVER: I have an – the husband was ordered to – that was provided to the court on the day of those directions hearing but - - -
HER HONOUR: Okay. Well, it’s not on file. It may be in the pocket.
MR DREVER: I have a sworn financial statement - - -
HER HONOUR: Sorry. Anyway, you have a sworn - - -
MR DREVER: Yes.
HER HONOUR: All right.
MR DREVER: It was sworn in front of Mr Philip Boston who is a Geelong practitioner.
HER HONOUR: All right, that’s fine.
MR DREVER: But there is no reference whatsoever to the [D Superannuation Fund].
HER HONOUR: Yes.
MR DREVER: [Mr Hughes] informs his wife and myself of that $605,000 there is currently remaining $900.
HER HONOUR: Yes.
MR DREVER: Now, there are some small references in those statements by [M] to payments of taxations required the pre – for the withdrawal of some funds but they are only small taxations totalling around about $20,000.
HER HONOUR: Yes.
MR DREVER: There is not before your court, before your court, your Honour, in this court, and before me any outlines as to the distribution of those moneys of some $605,000.
HER HONOUR: Yes.
MR DREVER: That clearly occurred prior the separation and prior to the wife seeking advice.
HER HONOUR: Yes.
MR DREVER: Despite that, your Honour, my client seeks – and despite my advice, seeks final orders in the terms of the minute that are before you. In relation to the selling of property and in relation to the residence of the child who is currently aged 15 years who will continue to reside with the wife in the matrimonial home. The wife is currently the registered proprietor of that home and subject to a mortgage in her own name that occurred by the consent of the parties prior to this day and after the commencement of the proceedings.
HER HONOUR: Yes.
MR DREVER: The wife will receive that pool of some two hundred and – almost $300,000 out of what was, immediately prior or in the period six to eight months to a year be prior to the separation of a sum of $1 million. She understands - - -
HER HONOUR: Well, where’s the other three or $400,000?
MR DREVER: There is no evidence to me or - - -
HER HONOUR: No, no, no. But what I have got is that 740 was received.
MR DREVER: My apologies, your Honour. The house equity is $750,000 but 740 was the husband’s superannuation fund.
HER HONOUR: Yes.
MR DREVER: $100,000 equity within the home.
HER HONOUR: Yes.
MR DREVER: And - - -
HER HONOUR: That’s 840.
MR DREVER: Yes. I’m sorry, my apologies, your Honour. It’s eight hundred and – approximately $850,000.
HER HONOUR: Yes.
MR DREVER: She receives the sum of - - -
HER HONOUR: 286.
MR DREVER: 286 plus - - -
HER HONOUR: Plus car and – yes.
MR DREVER: Plus car and retains - - -
HER HONOUR: Yes.
MR DREVER: And retains the furniture and chattels.
HER HONOUR: 25 per cent, roughly, give or take. Yes.
MR DREVER: We are 23 I think we’re up to, your Honour.
HER HONOUR: Well, we’ll - - -
MR DREVER: Plus.
HER HONOUR: All right.
MR DREVER: Now, I do have a specific [sic] and clear instructions from my client to seek these final orders.
HER HONOUR: All right. Well, that’s all very well but I have to be satisfied that it’s just and equitable to make these orders.
MR DREVER: I understand that, your Honour.
HER HONOUR: Yes.
MR DREVER: My client is aware that as an officer of this court, I am bound to tell you all the circumstances of this case and that you are clearly, under the Act, required to be satisfied that these arrangements are proper.
HER HONOUR: Yes.
MR DREVER: I might tender that statement, your Honour, with the fact that my client is instructing me that she believes that what there is that she is to receive is all there is that she is capable of receiving.
HER HONOUR: Right. Yes, thank you.
MR DREVER: Thank you, your Honour.
HER HONOUR: [Mr Hughes], is there anything you want to say?
[MR HUGHES]: No, your Honour. I think that what has been covered, whilst the numbers don’t exactly add up, is my wife’s representation – representative says that in fact what is before the court is really what is proposed and an agreement which both parties have come to.
HER HONOUR: Yes. Well, do you not understand that that is not the be all and end all of the matter.
[MR HUGHES]: In the sense of the management of the fund going on?
HER HONOUR: No. In the sense that I have to be satisfied that these are just and equitable orders. It is not enough, necessarily, for you and your former wife to feel it’s an appropriate order. I have a responsibility, particularly in view of the fact that the wife’s solicitor does not recommend the agreement - - -
[MR HUGHES]: Well, he – I mean, that’s a matter between he and my wife.
HER HONOUR: No, no, it’s not as simple as that, [Mr Hughes]. Just listen please. The eminent authority has indicated that in cases involving alteration of interest in property, the court does not act like a rubber stamp, simply to approve what the parties wish the court to approve, or orders which the parties want made. The court has a higher responsibility than that. That responsibility is reduced if both parties are represented legally and the legal practitioners have given their clients appropriate advice, as a result of which – and the clients follow that advice in particular. That’s the situation. You don’t have any legal representation here today at least. Mr Drever does not recommend to his client that she accept the agreement. She does so against his advice; do you understand?
[MR HUGHES]: I do.
HER HONOUR: That, therefore, gives me what many would describe as an even higher responsibility to be satisfied that the arrangements are just and equitable. But if I’m not satisfied, the fact that you want me to make the order and that [Mrs Hughes] wants me to make the order is not enough. If I form the view that it’s not appropriate to make the order then there are a number of things and steps that I would take. Do you understand that?
[MR HUGHES]: I do.
HER HONOUR: All right. Now, why should I be satisfied, in all the circumstances, that this is appropriate to make these orders?
[MR HUGHES]: Well, in essence, whilst figures have been provided to the court, there has been no contact on my part to put any assets away out of the court’s view. There has been no obtaining of any personal items which – well, none at all ..... and so really what the court is presented with is what is available in total and in agreeing to the orders proposed, I’m not wanting to dissect or in any way retain any part (a) of the home or (b) of the chattels within the property and the arrangement with the remaining superannuation fund has been mutually agreed.
HER HONOUR: Well, “the remaining superannuation fund” is the operative word. Do you dispute what Mr Drever has said, that - - -
[MR HUGHES]: The figure ..... your Honour.
HER HONOUR: Pardon?
[MR HUGHES]: That figures that Mr Drever has put forward don’t exactly add up but - - -
HER HONOUR: Well, roughly $600,000 came from the [M Fund] to the [D Fund]. Is that – do you dispute that?
[MR HUGHES]: No, that’s about approximately - - -
HER HONOUR: Roughly, yes.
[MR HUGHES]: Yes.
HER HONOUR: Yes.
[MR HUGHES]: Well - - -
HER HONOUR: Of that amount, Mr Drever tells me that you say there’s $900 remaining.
[MR HUGHES]: Well, in the earlier stages of the superannuation fund, there were funds available which we were (a) used to purchase the car, (b) used to pay for various family expenses.
HER HONOUR: $600,000 in what period of time?
[MR HUGHES]: Well, it would be three years.
HER HONOUR: Three years. Yes.
[MR HUGHES]: In fact, it’s not 600,000, your Honour, in the sense that there’s 180,000 there now.
HER HONOUR: Yes, you’re right. Yes. Significant amount of money to be spent on a motor car and some living expenses in three years. Yes. Well, anything else you want to say, [Mr Hughes]?
[MR HUGHES]: Nothing, your Honour.
HER HONOUR: Right. As I understand Mr Drever’s submissions, his instructions are that the wife’s belief is effectively that what she receives here today, pursuant to the proposal negotiated, is the best she could possibly do. In other words, whatever funds there were are either no longer available or are so completely concealed that she would not find them. That adds a degree of difference to the situation. It pains me to do so because I am by no means satisfied that [Mr Hughes] has comported himself within the requirements imposed by the legislation upon people in his situation but I do understand the situation where it is no use throwing good money after bad, which I suspect – not I suspect, which I understand is the background to [Mrs Hughes’] agreement to these orders. I would also say that I have heard no evidence from [Mr Hughes]. I have heard certain matters raised by him from the bar table. I have heard what, on the face of it, appears to be pretty a skimpy explanation as to what may have happened to the superannuation funds. If there were a better explanation, I would have expected to hear it. I sincerely trust that [Mr Hughes] does not feel any particular pleasure at what has happened and I sincerely trust that both parties will, with circumstances, be able to get on with the rest of their lives and that the child will not be disadvantaged by any of these matters. …
Her Honour then pronounced orders in terms of the minute presented to her.
The reasons of Macmillan J
Given we now have the benefit of the transcript of the hearing in 2000, it is unnecessary to refer at length to what Macmillan J said in holding that Order 3 entitled the wife to receive all of the husband’s remaining superannuation.
It is important to observe, however, that her Honour recorded that there had been no objection to her receiving a copy of the original minute of orders, which showed the amendments made before it was presented to Carter J at the hearing in 2000.
Macmillan J correctly recorded that:
5. … Paragraph 3 of those orders in its unamended form included what is sometimes referred to as a West v Green … formula. The wife’s entitlement, on the basis of the minute prior to its amendment, was calculated on the basis of that formula, which took into account a number of factors including the total number of years the husband had been a member of the fund and the length of the marriage. That handwritten minute of orders was amended to provide, as was ultimately ordered that [sic], for payment to the wife of all of the payments and entitlements due and payable to the husband.
Macmillan J noted the wife’s evidence that the husband’s superannuation was now worth $168,678 (although she also noted that the wife’s counsel understood the correct figure was in the region of $180,000).
In dealing with the legal principles concerning the interpretation of consent orders, her Honour referred to Langford and Coleman (1993) FLC 92-346, where Nygh J held at 79,670-79,671, that there was
clear authority for the proposition that at least in matrimonial causes once any financial agreement reached between the parties is embodied in court orders, it is to those orders alone that the Court must look … It follows that if an order made by consent must be treated like any other non-consensual court order it must be read and interpreted quite independently of what the parties subjectively might have intended thereby. It must be read as standing on its own feet, as it were.
Macmillan J went on to say:
17.I agree that I cannot, in order to interpret the order, look to the subjective intention of the parties when that order was made. However, if the order is ambiguous I can, when construing what is meant by that order, look to admissible evidence of the surrounding circumstances.
Her Honour did not cite any authority for the latter part of this proposition, but no issue was taken with it during argument before us.
Macmillan J observed that the husband supported his interpretation of Order 3 by reliance on Order 11, which was in the following terms (the striking through of the “s” in the word “paragraphs” in the third line was per the original):
11.That from the balance to be received by the husband following the payment of the wife’s entitlements as prescribed in paragraph
s3 herein these shall be deducted and paid to the wife; and monies paid or payable by the wife as a result; any monies paid or payable by the wife as a result of any default or failure by the husband to indemnify the wife for the liabilities referred to in paragraphs 7, 8 and 9 herein.Her Honour recorded the submission of counsel for the husband that Order 11 made it clear it was not intended the wife would receive all of the entitlements. Her Honour then noted that:
20.It was further submitted that it was a question of how the words “eligible to receive” [in Order 3] are interpreted and it was submitted on behalf of the husband that that the only possible date it could refer to is the date of the orders.
Her Honour said the wife’s case was that when Order 3 was made, the husband was not eligible to receive any benefit and that it was common ground that he had only recently become eligible to receive his superannuation.
Macmillan J concluded her summary of the competing submissions by referring to the wife’s argument about the significance of Order 11:
22.On behalf of the wife it was further submitted that the terms of the original minute of proposed orders provided that the wife would be paid some part of the husband’s entitlements based upon the formula leaving a balance to be paid to the husband and that the failure to delete paragraph 11, which was no longer relevant or necessary following the amendments to paragraph 3 of the minute of orders, was an oversight.
Her Honour then dealt with the arguments in the following two paragraphs (emphasis in the original):
23.In my view the meaning of paragraph 3 is clear. Whilst I was referred to what might be described as extrinsic material I do not need in this case to refer to that material in order to construe what is meant by the order. Although it might have been the husband’s understanding or intention that the wife would only be entitled to any further benefits or payments made by him or on his behalf subsequent to the orders, that is not what paragraph 3 of the orders provides and the order is to be interpreted independently of the subjective intention of the parties. Nor do I need to refer to paragraph 11 of the orders for the purposes of interpreting paragraph 3 of those orders. The fact that paragraph 11 refers to a balance to be paid to the husband does not, in my view, add to or alter what is the otherwise clear meaning and intent of these orders.
24.In my view the trigger … is the husband’s eligibility to receive any further benefit or payments. Upon the husband becoming so eligible to receive any further benefit or payments pursuant to his membership of any superannuation fund to which either he or his employer or both have contributed all payments and entitlement due and payable to the husband are to be paid to the wife. Whilst the order refers to contributions made to superannuation it does not specify a time frame for those contributions which could have been made either before or after the date upon which the orders were made. The order does not refer to further payments made by the husband or his employer, it refers to his eligibility to receive further benefits or payments. It is common ground that the husband only recently became eligible to receive the superannuation benefits that are the subject of this dispute. In my view therefore it follows logically that as at the date the orders were made he was not entitled to any benefit or payments that may have been accumulated prior to or as at the date of the orders. In my view the relevant time for the purposes of giving effect to this order is the husband’s eligibility not, as submitted by [counsel for the husband] the date of the orders.
Her Honour then went on to make the orders the subject of this appeal.
Grounds of appeal
The husband originally relied on the following two grounds of appeal:
1.That the learned trial Judge erred in making a finding of fact or facts on an important issue which could not be supported by evidence.
2. That the learned trial Judge exercised her discretion to arrive at a decision which clearly was wrong.
At the hearing, we gave leave to the husband to rely upon three further grounds, which are set out below:
3.The learned Trial Judge erred in law:
(i)by adopting a narrow approach to the interpretation of orders, when extrinsic material was available;
(ii)by failing to consider evidence of the common intention of the parties at the time the orders were made to assist with the interpretation of the Orders;
(iii)by failing to consider or provide proper and adequate reasons in terms of the Respondent’s conduct and the impact, if any, on Her Honour’s interpretation of the Court Orders.
4.The learned Trial Judge made errors of fact that caused her to exercise her discretion wrongly, including but not limited to the Appellant’s eligibility to his entitlement.
5.The learned Trial Judge’s reasons for judgment are inadequate and/or unclear and do not follow established legal principle.
Discussion
On reading Macmillan J’s reasons, we were not convinced that Order 3 was as clear as her Honour found it to be. In particular, we were unsure what to make of the word “further” in the expression “any further benefit or payment” contained in that order. The use of that word raised the question “further to what?” Although this question was not considered in her Honour’s reasons, it would have been easily answered by reference to the fact that it was common ground that the husband had already withdrawn funds from his superannuation accounts at the time the consent orders were made. (Transcript, 2 February 2012, p 12).
Our initial doubt about the interpretation of Carter J’s orders was aggravated by the presence of Order 11, which clearly implied that the husband might receive some portion of the entitlements referred to in Order 3. With respect to Macmillan J, we were not convinced that Order 11 could be disregarded in the way it was by her Honour. We say this because the construction of any provision in a document requires consideration of the document as a whole. If that consideration shows inconsistency between two provisions then the inconsistency needs to be resolved by means other than saying that one of the provisions is clear. Instead, the inconsistency must be resolved by application of the well known rules of construction.
Thus, in Yunghanns v Yunghanns (1999) FLC 92-836 at [142] the Full Court of this court held that a specific order contained in a suite of consent orders:
… must be construed in the context of the other orders also contained in the consent orders of that date, and in the light of the proceedings of which they were the culmination and of the parties thereto.
Importantly, the Full Court went on to say, at [143]:
In the absence of any allegation of fraud or mistake or other vitiating circumstances in the formation, drafting or recording of the orders, extrinsic evidence is not admissible to contradict the plain words of the order, or to seek to establish the agreement between the parties which lay behind it …
In Repatriation Commission v Nation (1995) 57 FCR 25, the Full Court of the Federal Court said at 33-34:
If, as in the case of a ‘speaking” order … its true meaning is “immediately plain”, the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction … Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has “a plain meaning”…
…
It follows from the ambiguity of the order … that resort may be had, in the aid of its true interpretation, to the surrounding circumstances. Those circumstances included, of course, the reasons for judgment.
In our view, Macmillan J should have recognised the possible inconsistency between Order 3 and Order 11 and dealt with it. If indeed the meaning of Order 3 was clear, as her Honour thought, then the inconsistency could have been resolved by acceptance of the wife’s submission that Order 11 had become redundant following the amendment stating that the wife was to receive “all” of the husband’s entitlements, not just a portion under a formula which had been removed before the document was presented to Carter J.
We accept that treating Order 11 as redundant would appear to breach a rule commonly employed in statutory construction, which we consider also has validity when interpreting orders, namely that:
a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent. (Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71])
However, it is not always possible to give meaning to every word: Brisbane City Council v Attorney-General for Queensland (1908) 5 CLR 695 at 720; Secretary, Department of Social Security v Rurak (1990) 99 ALR 17 at 28. When it becomes impossible to give meaning to every word, a construction “that produces the greatest harmony and the least inconsistency” is to be preferred: Attorney-General v Sillem (1863) 159 ER 178 at 217. Given the emphatic language employed in Order 3 (“all”), and given the explanation for the inconsistency is apparent from examination of the amendments made to the original document, a construction treating Order 11 as redundant would clearly be preferable to simply disregarding Order 11 and relying on the alleged clear meaning and intent of Order 3.
In any event, we consider that the doubt about the meaning of Order 3 has been removed by the transcript of proceedings before Carter J. First, the transcript provides support for the proposition that the word “further” was used in Order 3 to draw attention to the fact that a substantial amount of the superannuation had already been dissipated. Secondly, it makes plain that Carter J understood she was being invited by both parties to make an order that would give the wife all of the husband’s remaining superannuation.
Faced with the transcript, the husband pursued two new lines of attack.
The first misconceives our task in this appeal. Instead of maintaining his assault on Macmillan J’s orders, the husband now seeks to criticise Carter J for her alleged failure to follow guidelines relating to self-represented litigants. The submissions went so far as to suggest that her Honour’s conduct of the matter could have given rise to “an apprehension of bias … at the time”. The submissions were also critical of the wife’s advisors for their conduct during the original proceedings, including their alleged failure to inspect documents the husband said he had produced prior to the hearing before Carter J.
This line of argument must fail, since an appeal against orders made in 2012 cannot be supported by a collateral attack on orders made by a different judge more than a decade earlier.
The second line of attack now pursued by the husband relies upon a solitary remark he made in the course of his interchange with Carter J immediately prior to the making of the consent orders. This was where the husband said (emphasis added):
I’m not wanting to dissect or in any way retain any part (a) of the home or (b) of the chattels within the property and the arrangement with the remaining superannuation fund has been mutually agreed. (Transcript, 13 December 2000, p 9)
The husband now argues that his interpretation of Order 3 is supported by the concluding words of that passage, which we have highlighted. He submits that they show that while the wife was to retain the house and the chattels, he was to keep the balance of the superannuation entitlements he had accrued and the wife was only to retain what he called his “ongoing further superannuation benefits”.
We reject this argument. When read in context, we are satisfied that, in the passage above, the husband was merely adding his support to the propositions that had been put to Carter J by counsel for the wife in his efforts to explain to her Honour why it was just and equitable for the wife to receive all of the remaining assets and all of the husband’s remaining superannuation.
The outcome and costs
For the reasons set out above, we consider the trial Judge arrived at the correct result, albeit her reasons for doing so differ from our own. We therefore propose to dismiss the appeal.
The husband’s counsel submitted that if the appeal was dismissed there should be no order for costs because the appeal was “arguable”. Reference was also made to the husband’s modest financial circumstances. Whilst the appeal may have been seen as “arguable” prior to the production of the transcript, this was no longer the case after the transcript became available – and yet the husband persisted with the appeal, putting the wife to further expense. We note also that the wife was ordered to pay costs of an earlier related proceeding.
While we are mindful of the husband’s poor financial position, it is the case that he sought to maintain a position in the appeal contrary to the position he adopted at the time of the proceedings before Carter J – and continued to maintain that position when the transcript revealed that his appeal lacked merit. The wife ought not to be out of pocket as a result of his efforts to resile from the agreement. We therefore propose to order the husband to pay the wife’s costs of the appeal on a party and party basis, to be assessed if not agreed.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 25 September 2013.
Associate:
Date: 25 September 2013
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