FAMILY COURT OF AUSTRALIA
| JESS & GARVEY | [2018] FamCAFC 44 |
| FAMILY LAW – APPEAL – INTERIM PARENTING – Where there is nothing anomalous about the primary judge finding, by virtue of s 61DA(3) of the Family Law Act 1975 (Cth) (“the Act”), that it would “not be appropriate” to apply the presumption in favour of equal shared parental responsibility, while going on to make an order for equal shared parental responsibility – Where it can be seen that the primary judge addressed what was necessary from s 65DAA of the Act, given the parameters of the dispute, and how the parties’ respective cases were presented – Where the primary judge adequately and appropriately considered what she is obliged to in determining where the best interests of the children lie, bearing in mind that that consideration is framed by the parameters of the issues in dispute, and how each party has presented their case – Where there is no merit in the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – FINANCIAL AGREEMENT – Where, given the history of proceedings and, specifically, an earlier order which the primary judge treated as preventing any further application to set aside the financial agreement, the Court is inclined to proceed on the basis that leave is not required – Where the primary judge summarily dismissed the wife’s application that the financial agreement be set aside, or alternatively, a declaration be made that the agreement is not valid, enforceable or effective – Where the primary judge applied the principle articulated in Henderson v Henderson (1843) 67 ER 313, and approved by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”) – Where it is apparent that the issue before the primary judge in earlier proceedings was whether there was an agreement to be enforced – Where the wife had “notice, invitation and opportunity” to argue her case that the agreement should not be enforced in the earlier proceedings, and plainly that would include any claim to set aside the agreement pursuant to ss 90K and/or 90KA of the Act – Where the Court considers that the question of the enforceability of the agreement was finally determined – Where the Court considers that the claims pursuant to s 90K and/or s 90KA were “so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceedings for the claim not to have been made or the issue not to have been raised in that proceeding” – Where the primary judge was correct in applying the Anshun principle – Where the Court is not persuaded that the primary judge erred in finding that the wife was estopped from bringing the further proceedings – Where there is no merit in the grounds of appeal – Appeal dismissed. FAMILY LAW – COSTS – Where both parties submitted that costs should follow… |
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- AGLC
- Jess & Garvey [2018] FamCAFC 44
- Case
- [2018] FamCAFC 44
- Decision Date
CaseChat Overview and Summary
The court found that the primary judge had not erred in finding that it would not be appropriate to apply the presumption in favour of equal shared parental responsibility, while still making an order for equal shared parental responsibility. The court also determined that the primary judge had adequately considered the relevant factors in determining the best interests of the children and had applied the correct legal principles in dismissing the wife's application to set aside the financial agreement. The court held that the primary judge had correctly applied the Anshun principle, and that the issue of the enforceability of the agreement had been finally determined in earlier proceedings. The court found no merit in the grounds of appeal and dismissed the appeal.
The court ordered that the appeal be dismissed and that the appellant pay the costs of the respondent of and incidental to the appeal, with such costs to be assessed in default of agreement. The form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The appellant wife pay the costs of the respondent husband of and incidental to the appeal, with such costs to be assessed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Brimaud was not a case involving the Anshun principle per se. It involved an attempt to set aside an earlier interlocutory order because of an alleged change of circumstances. It was in that context that McLelland J said this at page 46 (the last sentence of the second part of which her Honour quoted in [70]):The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process illustrated in such cases as Stephenson v Garrett [1891] 1 QB 677 and Hunter v Chief Constable, West Midlands Police [1982] AC 529; [1981] 3 All ER 727, and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal even by way of rehearing: see, for example s 75A(8) of the Supreme Court Act 1970 (NSW).Interlocutory orders, of their very nature, create no res judicata or estoppel, and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.(Emphasis added) Despite addressing a different issue, the sentiment applies equally here, and her Honour did not err in relying on it. Before this Court, the wife relied on the decision of the Victorian Court of Appeal in D A Christie Pty Ltd v Baker. That decision is said to be authority for the proposition that the Anshun principle does not apply to interlocutory applications. However, that case is instructive in explaining the context of that proposition, and how it cannot prevent the estoppel applying in the circumstances of this case. Hayne JA (as his Honour then was) said this (at 599 – 600):Much of the debate on the hearing of the appeal focused upon whether a decision to dismiss an application made under s. 23A of the Limitation of Actions Act is properly classed as an interlocutory or a final decision. For that purpose reference was made to a number of decisions dealing with the classification of judgments as interlocutory or final for the purposes of determining whether appeal from those judgments lay as of right or only by leave. It will be necessary to return to examine a number of those cases but before doing so there are two preliminary points which I would make. First, the decision whether a particular application has given rise to a final or interlocutory judgment will be much affected, if not determined, by considering whether the dismissal of the application concerned would itself bar renewal of the application. Thus to argue from whether dismissal of an application under s. 23A is properly classed as "final" or "interlocutory" for the purposes of rights of appeal, to a conclusion about whether a second application may be mounted, invites circularity of reasoning. Second, to determine whether there is a res judicata, or any issue estoppel, it is necessary to identify whether there has been a final determination as between the parties in the one case of a cause of action and in the other of a particular issue. (It was not suggested in the course of the hearing before us that an application under s. 23A determined any cause of action and thus it was not submitted that the order dismissing the 1993 application for extension of time gave rise to any res judicata.) But again the question whether there is any issue estoppel turns, in part, upon whether there has been a final determination of any issue between the parties. If all that the dismissal of the first application means is that the court has concluded that on the material then advanced no order for extension should be made, it is apparent that an order dismissing the application determines no issue between the parties that is raised on the second application for on that second application the issue would be different – whether any extension of time should be made on the new and different material then before the court. If, however, the true characterisation of the order dismissing the first application is that it is a determination of whether an extension of time should be granted to the applicant within which that applicant might bring an action complaining of a cause of action otherwise statute barred, it might perhaps be said that the dismissal of the application finally determined an issue which would arise in the course of the second application. Just as the classification of an order dismissing the application as final or interlocutory proceeds from the premise that a fresh application can be made, so too may the application of principles of issue estoppel be determined by the logically prior step of deciding what it is that the first court has determined – the narrow question whether an extension of time should be granted on the material then put forward, or the broader question whether any extension of time should be granted. (Emphasis added)