Inger & Lotte
[2024] FedCFamC1A 70
•3 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Inger & Lotte [2024] FedCFamC1A 70
Appeal from: Lotte & Inger [2024] FedCFamC1F 72 Appeal number: NAA 58 of 2024 File number: BRC 14228 of 2021 Judgment of: TREE J Date of judgment: 3 May 2024 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the appeal was listed to afford the appellant the opportunity to be heard on why the appeal should not be summarily dismissed – Where a litigation guardian was appointed for the appellant in the proceedings below – Whether that appointment encompasses any related appeal proceedings – Where even if the appeal was competently commenced it has no reasonable prospects of success – Appeal summarily dismissed. Legislation: Family Law Act 1975 (Cth) s 75
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 32, 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Pt 3.5, r 3.12
Cases cited: Dickson & Dickson (1999) FLC 92-857; [1999] FamCA 768
Forster & Forster [2010] FamCAFC 205
Kennon v Kennon (1997) FLC 92-755
OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
TKWJ v R (2002) 212 CLR 124; [2002] HCA 46
Number of paragraphs: 28 Date of hearing: 26 April 2024 Place: Cairns (via video link) The Appellant: Litigant in Person Solicitor for the Respondent: Turnbull Mylne The Litigation Guardian: No appearance ORDERS
NAA 58 of 2024
BRC 14228 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR INGER
Appellant
AND: MS LOTTE
Respondent
MR NYLANDER
Litigation Guardian
ORDER MADE BY:
TREE J
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.The Appellant’s Application in an Appeal filed 26 April 2024 is dismissed.
2.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Inger & Lotte has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 26 October 2021, Ms Lotte (“the wife”) commenced property settlement proceedings in the Federal Circuit and Family Court of Australia (Division 2) against Mr Inger (“the husband”).
On 25 May 2022, in the course of those proceedings, Judge Murdoch declared that:
1.Pursuant to rule 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the rules”), the Husband requires a litigation guardian to be appointed on his behalf in these proceedings
and made further orders, which, as it transpired, saw the Attorney-General appoint a person to be the manager of the affairs of the husband for the purposes of the appointment of a litigation guardian. That person proved to be Mr Nylander (“the litigation guardian”).
No appeal was brought from the 25 May 2022 orders. In due course the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1).
Subsequently, notwithstanding the appointment of the litigation guardian, no material was filed on the husband’s behalf in the proceedings. Hence when the trial of the proceedings was conducted before the primary judge, it was heard on an undefended basis, although the litigation guardian physically appeared in person and made submissions.
Ultimately in her reasons of 13 February 2024, the primary judge concluded that the just and equitable division of the parties’ property was effected by a 45/55 division of the only substantial asset owned by them in the husband’s favour, and otherwise they would retain the property in their possession or control.
On 12 March 2024 the husband (not the litigation guardian) filed a Notice of Appeal from the primary judge’s orders. On 9 April 2024 the court advised the parties that, pursuant to ss 32(3)(b) and 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”) the appeal was listed for consideration as to whether it should be summarily dismissed as having no reasonable prospects of success.
The litigation guardian failed to appear in these appeal proceedings notwithstanding that pending the performance of Orders 1 or 14 made by the primary judge on 3 February 2024, he remains appointed. That said, whether his appointment below encompasses any associated appeal proceedings is somewhat unclear.
For the reasons which follow, the appeal is summarily dismissed.
THE HUSBAND’S APPLICATION IN AN APPEAL
On the morning of the hearing before me, the husband filed an Application in an Appeal which sought the following relief:
1.That all unserved documents be served to myself (likely all documents, from 5th September 2023.)
2.Mr Nylander’s appointment as litigation guardian be terminated.
3.Put a stay on all previous orders.
(As per the original)
As shall be seen, none of that relief impacts upon the consideration of the summary dismissal of the husband’s appeal as none of it speaks to its merits or prospects of success.
As I have already indicated, the appeal will be summarily dismissed, and hence it is unnecessary to further address the husband’s Application in an Appeal, which will also be dismissed.
THE APPEAL
The appeal runs to 4 grounds as follows:
1. I have been denied natural justice.
2. No service of documents from other party have been provided.
3. I received only 32 minutes notice of final hearing.
4.I need time to file for special leave in the high court (approximately 6 weeks should suffice.
(As per the original)
SUMMARY DISMISSAL
Section 32(3)(b) of the Act provides:
32(3)A single Judge (sitting in Chambers or in open court) or Full Court of the Federal Circuit and Family Court of Australia (Division 1) may:
…
(b) give summary judgment; or
...
Likewise s 46 of the Act is in the following terms:
46(2)The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any party of a proceeding if:
…
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
A proceeding includes an appeal (s 7 of the Act). Logically, the first question for determination is whether the appeal, having been brought by the husband rather than the litigation guardian, is competent. In that regard Pt 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) contemplates the appointment of “a litigation guardian in relation to a proceeding” (r 3.12(i) of the Rules). The declaration and orders of Judge Murdoch mirrored that wording. Hence the question arises whether this appeal is a continuation of the proceeding to which the litigation guardian was appointed, or a fresh proceeding where the question of the husband’s capacity to conduct the appeal would again be a live issue before this Court.
There is no definition of “proceeding” in the rules, but relevantly “proceeding” is defined in the Act as:
Proceeding:
(a)in relation to a court – means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal; and
…
(Emphasis added)
That definition is remarkably and most unhelpfully vague. On the one hand it might recognise that an appeal is a separate proceeding; on the other hand “includes an appeal” might have been short hand for “includes any appeal from a proceeding.” Not only is there no assistance to be derived from the relevant extraneous material to which recourse may legitimately be had for interpretation, but other than bald assertions, I received no help in relation to the meaning of “proceeding” in the hearing before me.
Some assistance might be had from decisions under the preceding legislation, including Dickson & Dickson (1999) FLC 92-857; Parke & The Estate of the Late A Parke (2016) FLC 93-748 and Forster & Forster [2010] FamCAFC 205, however they do not speak with one voice. Ultimately it is unnecessary to determine the point here, because even if the appeal has been competently commenced, it must still be dismissed, as it is without any merit.
I say that because, turning to the grounds of appeal:
(a)Ground 1 is meaningless without particularity, and given that no complaint of procedural unfairness or other denial of natural justice was made before the primary judge by the litigation guardian, difficult to fathom;
(b)Ground 2 is misconceived, as apart from the initiating process, generally service is effected by email to the email address detailed in the mandatory Notice of Address for Service filed by the litigation guardian, and there is, and apparently before the primary judge was not, any complaint by him of any want of service, or provision of documents. Ground 2 seems to have been drawn oblivious to the imposition of a litigation guardian;
(c)Ground 3 suffers a similar defect to Ground 2, in that it was notice to the litigation guardian which was crucial; the husband’s role was substantially, if not entirely, overtaken by the appointment of the litigation guardian, and no complaint is now made by him of a lack of notice, nor does it appear that any such complaint was made before the primary judge.
(d)Ground 4 is clearly not a proper ground of appeal.
I accept that hovering in the husband’s material – although not a ground of appeal – is the claim that by doing virtually nothing, the litigation guardian was negligent, or incompetent, or both, which occasioned a miscarriage of justice. This is akin to an appeal alleging incompetence of counsel.
An assertion as to the incompetence of counsel is not, of itself, an independent ground of appeal. An appeal may be allowed if it can be demonstrated that the incompetence of counsel was such that the appellant was not afforded a fair trial or it produced a miscarriage of justice. (see TKWJ v R (2002) 212 CLR 124)
The principles relevant to the question of when an appellate court will allow an appeal on the basis of incompetence of a legal practitioner are set out in OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 at 298 as follows:
123.We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a re-trial, regardless of whether the result is apparently fair.
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
Thus even if it be assumed that the husband’s complaint relates to the litigation guardian’s tactical decision not to file material, was incompetent, the issue remains whether, but for that incompetence, a different result would have been reached. Nothing in the husband’s (or indeed the wife’s) material or submissions engaged with this issue.
However from the primary judge’s reasons, the following emerge:
•The husband and wife are both 38 years of age ([8]);
•They commenced cohabitation in 2002, when both were about 16 years of age, and finally separated in 2021, thereby concluding a relationship of about 19 years duration ([8]);
•Three children were born to the parties’ relationship, who at the time of trial were 14, 10 and 9, and lived equally between the parties’ homes ([9]);
•Four years after cohabitation commenced, the husband was injured in a [...] accident which resulted in a serious [...] injury and ultimately in consequence, [over] $1.[5]million settlement which by the time of trial that settlement was only represented in the former matrimonial home, valued at $580,000 in which the husband resides, and which was the only significant asset for division ([11]);
•The primary judge was satisfied that the husband’s violence towards the wife made all her contribution more arduous ([28] and [37]);
•Weighing those contributions, (taking into account the wife’s Kennon v Kennon (1997) FLC 92-755 argument, and despite the husband having provided all of the funds for the purchase of he former matrimonial home) saw the husband entitled to a 60 per cent contribution based entitlement ([41]);
•The factors listed in s 75(2) of the Family Law Act 1975 (Cth) favoured the wife to the extent of an adjustment of 5 per cent mostly because of her incapacity for employment and poor mental health ([48], [49] and 59]);
•A 55/45 division in the husband’ favour was just and equitable ([67]).
Against that background, it is very difficult to see how the result would have been different, but for any incompetence of the litigation guardian. Indeed, although the primary judge was persuaded that the husband had some earning capacity, of perhaps $20,000 per year ([57]), even if that was not correct, it is still difficult to see that a result more generous to the husband would have ensued.
Further, the husband’s submissions on this point were almost entirely preoccupied with his assertion that the litigation guardian failed to consult with him adequately, which is a decidedly different complaint.
The appeal as currently cast is completely bereft of any prospects of success, nor am I satisfied that the unarticulated ground of incompetence of the litigation guardian would enjoy any prospects of success either.
The appeal will be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 3 May 2024
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