Jess & Garvey
[2018] FamCAFC 44
•13 March 2018
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 the event – Costs ordered in favour of the respondent. |
| Family Law Act 1975 (Cth) ss 60CC, 60CG, 61D, 61DA, 65DAA, 90B, 90K, 90KA Family Law Rules 2004 (Cth) |
| Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270; [2006] FamCA 518 Banks and Banks (2015) FLC 93-637; [2015] FamCAFC 36 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Carr v Finance Corp of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 D A Christie Pty Ltd v Baker [1996] 2 VR 582 Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102 Henderson v Henderson (1843) 67 ER 313 Korsky and Bright & Anor (No 2) (2007) FLC 93-352; [2007] FamCA 1512 Licul v Corney (1976) 180 CLR 213; [1976] HCA 6 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Ricci & Jones [2011] FamCAFC 222 Ruane & Bachmann-Ruane and Ors (Accrued Jurisdiction) (2012) 48 Fam LR 131; [2012] FamCA 369 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 Senior & Anderson (2011) FLC 93-470; [2011] FamCAFC 129 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 |
| APPELLANT: | Ms Jess |
| RESPONDENT: | Mr Garvey |
| FILE NUMBER: | BRC | 2175 | of | 2016 |
| APPEAL NUMBER: | NA | 43 | of | 2017 |
| DATE DELIVERED: | 13 March 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Strickland & Murphy JJ |
| HEARING DATE: | 5 February 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 August 2017 |
| LOWER COURT MNC: | [2017] FamCA 783 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hackett |
| SOLICITORS FOR THE APPELLANT: | Hirst & Co Family Solicitors |
| COUNSEL FOR THE RESPONDENT: SOLICITORS FOR THE RESPONDENT: | Mr Kearney SC Barry.Nilsson Lawyers |
Orders
The appeal be dismissed.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jess & Garvey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 43 of 2017
File Number: BRC 2175 of 2016
| Ms Jess |
Appellant
And
| Mr Garvey |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of Notice of Appeal filed on 31 August 2017, Ms Jess (“the wife”) appeals against two of the interim parenting orders made by Carew J on 3 August 2017.
Those orders provide for the parties to have equal shared parental responsibility for the two children of the marriage, and for the children to spend seven nights each fortnight with Mr Garvey (“the husband”).
Additionally, the wife seeks leave to appeal, and if leave is granted, appeals against her Honour’s order dismissing paragraph 34 of the final orders sought by her in her Amended Initiating Application filed on 1 November 2016.
Paragraph 34 seeks that the financial agreement entered into between the parties on 3 August 2006 be set aside or, alternatively, a declaration be made that the said agreement is not valid, enforceable or effective.
The relevant background
Parenting
The parties married in 2006 and separated in 2015 with the husband moving out of the matrimonial home on 19 June 2015.
There are two children of the marriage, C born in 2007, and D born in 2009.
The parties entered into a parenting plan in June 2015 which provided, inter alia, for the parties to have equal shared parental responsibility and for the children to spend five nights each fortnight with the husband, together with half school holiday periods.
Before the primary judge the husband was seeking interim orders that the parties have equal shared parental responsibility for the children, and increasing the time the children spend with him to seven nights each fortnight. The wife was seeking that the arrangement in place pursuant to the parenting plan, continue.
The financial agreement
The parties entered into a financial agreement pursuant to s 90B of the Family Law Act 1975 (Cth) (“the Act”) on 3 August 2006.
On 11 March 2016 the husband filed an Application in a Case relevantly seeking that the financial agreement be enforced as if it was an order of a court.
On 12 April 2016 the wife filed a Response to the Application seeking that the application be dismissed, but in the alternative, if the court determined that the purported financial agreement is enforceable then it be enforced in accordance with orders set out in a schedule attached to the Response.
The husband’s application and the wife’s response were heard by her Honour on 27 May 2016, and on 7 June 2016, her Honour delivered reasons for judgment and ordered that the wife’s response be dismissed.
On 1 November 2016 the wife filed an Amended Initiating Application in which she sought an additional order that the financial agreement be set aside, or alternatively, a declaration be made that the financial agreement is not valid, enforceable or effective.
On 13 February 2017 the husband filed a Further Amended Response seeking that the additional order sought by the wife in her Amended Initiating Application be summarily dismissed.
Leave to appeal
As referred to above, the wife seeks leave to appeal the order made by her Honour on 3 August 2017 summarily dismissing 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.
The wife takes the view that leave is required, presumably because the order does not finally determine the rights of the parties (Licul v Corney (1976) 180 CLR 213; and Carr v Finance Corp of Australia Ltd (1981) 147 CLR 246 at 248 per Gibbs CJ). The husband does not specifically address this issue, but impliedly suggests that leave is not required.
The authorities differ. For example, in Korsky and Bright & Anor (No 2) (2007) FLC 93-352 and Ricci & Jones [2011] FamCAFC 222 it is assumed that leave to appeal was not necessary, but otherwise in Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270.
Here, given the history of the proceedings, and specifically the previous order made on 7 June 2016, which her Honour treated as preventing any further application to set aside the financial agreement, we are inclined to proceed on the basis that leave is not required.
In any event, this may not be of any moment because the wife relies on the grounds of appeal as the basis for the granting of leave if required. If the grounds are made out, there would clearly have been a substantial injustice to the wife and leave to appeal would have to be granted. If the grounds are not made out, leave would be refused.
The appeal
The parenting orders
Ground 1
Having found as the learned Judge did, at paragraph 29 of her Reasons for Judgment, that the learned Judge did not consider it appropriate for the presumption of equal shared parental responsibility to apply, the learned Judge then proceeded to make an Order for equal shared parental responsibility not withstanding that she had determined that the presumption in Section 61DA(1) did not apply. The findings made by the learned Judge are internally inconsistent and demonstrate an error of law.
We have some difficulty in understanding the complaint here.
In [29] her Honour said this:
As this is an interim hearing and the evidence has not been tested it is not possible for me to determine whether or not it is reasonable to believe the applicant has engaged in family violence. The allegations against the applicant, if true, are capable of falling within the definition of family violence and accordingly, as this is an interim hearing, I do not consider it appropriate for the presumption to apply.
If these were final parenting proceedings, the presumption in s 61DA(1) of the Act would apply unless the evidence led to a finding that it did not do so by reason of abuse or family violence (s 61DA(2)) or that, although the presumption was applicable, it was rebutted by reason of findings as to the best interests of the children (s 61DA(4)).
However, these were not final parenting proceedings; they were proceedings for interim orders. In such proceedings, as her Honour observed at [20], it is open to a court, by virtue of s 61DA(3), to find that it would “not be appropriate” for the presumption to apply – and her Honour so found, for the cogent reasons given at [29]. Indeed, the restricted capacity for a court to make findings in respect of contested issues of fact in interim parenting proceedings is no doubt the reason s 61DA(3) was included in the legislation.
There is nothing anomalous about a judge finding 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. A rebuttable presumption such as that in s 61DA(1) is nothing more than the means by which a party can seek to establish a fact without proof, thereby shifting the burden of proof to the other party. In circumstances where a presumption does not apply, the court must arrive at its conclusion about the existence of the fact by reference only to the evidence. In the present case, after reviewing the evidence at [30]–[34], her Honour found it was in the best interests of the children to order equal shared parental responsibility.
Error as asserted in Ground 1 is not established.
Ground 2
The learned Judge erred in law by making an Order that the Appellant and Respondent have equal shared parental responsibility as neither the Appellant nor the Respondent had sought that Order (as the Appellant’s written case outline for parenting matters identified at paragraph 6) and no leave was sought or granted for either party to amend their Application or Response to seek that Order.
This ground of appeal is unsustainable.
Although neither party formally sought an order as to parental responsibility in any application or response that was before her Honour, that was a live issue between the parties, and in the Minute of Orders sought that was included in the husband’s outline of case document placed before her Honour at the hearing, he sought an interim order that the parties have equal shared parental responsibility. Thus, her Honour was being asked to address this issue, and it was unnecessary, as suggested by the wife, for leave to be sought to amend the husband’s formal application to provide for it.
We also note that this did not take the wife by surprise, and no objection was taken when the husband’s senior counsel advised her Honour at the commencement of the hearing, that whether there should be an order for equal shared parental responsibility was in issue (transcript 17 July 2017, p 13, l 1 – 3, p 14, l 42 – p 15, l 42).
Ground 3
The learned Judge found (at paragraph 33 of the Reasons for Judgment) that both parties contended for ‘a continuation of a shared care arrangement’. No such terminology is found in the Act and the learned Judge’s reliance on the finding that both parties contended for a continuation of ‘shared care’ to ground the Order the learned Judge made for equal shared parental responsibility is an error of law.
In [33] her Honour said this:
Both parties contend for a continuation of a shared care arrangement and both parties will therefore be significantly involved in their children’s lives, so I consider it important for the children that both parents are involved in decisions concerning major long term issues.
In other words, what her Honour is there saying is that given that both parties will be significantly involved in the lives of the children because they will be sharing their care, she considered it important that they have equal shared parental responsibility. There is no error here by the primary judge.
Further, the fact that there is no terminology of “shared care” in the Act illuminates the baselessness of the ground’s premise. Her Honour plainly used the term as a descriptor. There is no error in doing so. The concept of sharing both responsibilities and time is fundamental to Part VII of the Act and the very concept of each of “equal time” and “substantial and significant time” are readily embraced by the descriptor “shared care arrangement” (see for example s 60B(1)(a); s 60B(2)(c); s 60CC(2)(a); and s 65DAA).
Ground 4
The learned Judge erred in the findings that she made at paragraph 30 (a) to (g) of the Reasons for Judgment as:
(a) The learned Judge relied upon the Parenting Plan in the manner set out at paragraphs 30(a) to (c) of the Reasons for Judgment and her findings made fail to take into consideration or refer to the following evidence of the Appellant:
(i) Paragraph 15 of her Affidavit filed on 22 December 2016, that:
(A) The Appellant only entered into a Parenting Plan with the Respondent, as the Respondent told her that he would not be moving out of the house until there was a Parenting Plan in place.
(B) The Appellant was increasingly concerned for her safety at home and therefore, needed to have something agreed so that the Respondent would move out of the house.
(C) The Appellant stated that “I had nowhere to go and I could not move out myself. I felt that I had no other option other than to agree to the Parenting Plan”.
(ii) The Appellant identified at paragraphs 13 to 17 of her Parenting Outline the paragraphs in her Affidavits of 14 April 2016, 5 October 2016 and 22 December 2016 which provide evidence of family violence by reference to specific incidents by the Respondent that occurred during their relationship and after separation.
(b) The learned Judge found at paragraph 30(d) of the Reasons for Judgment that the parties had reached an agreement for major long term issues e.g. schooling however such finding failed to take into consideration the following evidence of the Appellant identifying the continuous conflicts between the parties in relation to major long term issues in particular, involving the children’s schooling identified at:
(i) paragraphs 85, 142 and 194 to 195 of the Appellant’s Affidavit of 5 October 2016 and paragraphs 15 (k) and 15 (q) of the Appellant’s Parenting Outline; and
(ii) paragraph 28 of the Appellant’s Affidavit of 13 July 2017, identifying continuous conflict between the Appellant and the Respondent in relation to the children’s schooling which has occurred as recently as of 10 July 2017 where the Respondent refused to return the children’s school shoes and uniforms to the Appellant.
(c) The learned Judge found at paragraph 30(e) of the Reasons for Judgment that the Appellant did not raise any specific difficulty she has experienced in making a decision with the Respondent about major long term issues, however such finding fails to take into consideration the following evidence that she was unable to co-parent with the Respondent in relation to the children’s long term issues, in particular, at:
(i) paragraph 11 of the Appellant’s Affidavit of 13 July 2017 where the Appellant notes that the Respondent did not communicate with her about a health issue for their daughter before consulting with a doctor;
(ii) paragraphs 25 and 26 of the same Affidavit where the Appellant provides an example of the Respondent unilaterally deciding to change the children’s changeover without consulting her; and
(iii) paragraphs 20-23 and 26 of the same Affidavit where the Appellant provides an example of when the Respondent withheld the children from her.
(d) The learned Judge found at paragraph 30(g) of the Reasons that Counsel for the Appellant did not submit that there was any particular decision about a major long term issue that would require the parties making a joint decision pending a final hearing but such findings fail to take into consideration the following submissions made:
(i) Counsel provided written submissions to the Court on behalf of the Appellant, by way of a Parenting Outline, which identified the ongoing disputes between the Appellant and Respondent with respect to long term issues at paragraphs 38 to 40; and
(ii) The parenting outline further makes reference to the Appellant’s Affidavit material which also identifies these issues.
and the findings made by the learned Judge at paragraph 30 (a) – (g), which underpin her finding about why an Order should be made for equal shared parental responsibility are therefore incorrect, given the evidence and submissions (of which the learned Judge determined there was either no evidence or submissions) and led her into error.
The first complaint (Ground 4(a)) is misconceived.
Certainly, in her previous affidavit material the wife raises issues as to why she entered into the parenting plan, but before her Honour she was seeking to maintain the care arrangements put in place by that parenting plan; it was the husband who was seeking to change those arrangements.
The second complaint (Ground 4(b)), is, again, misconceived. It is beyond doubt, as her Honour said at [30 d)], that the parties had “reached agreement on a number of major long term issues e.g. schooling”. However, that finding is not rendered erroneous because of the claims of the wife that there had been conflicts between the parties around those major long-term issues, including for example, a dispute about the return of school shoes and uniforms.
The third complaint (Ground 4(c)) is also misconceived. The wife is confusing disputes or conflict between the parties about issues that invariably arise between separated parents in relation to the day to day care of their children, with decisions about major long-term issues. Her Honour in [30 e)] is referring to the latter, whereas the examples of conflict given by the wife are examples of the former. That this is so can be seen from s 4 of the Act, which defines major long-term issues in relation to a child as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
…
Thus, for example, not every issue that arises about a child’s health is a “major long-term issue”. It assumes that character only if it is properly characterised as of a “long-term nature”. Accordingly, the particulars in Ground 4(c)(i), without more, do not gainsay her Honour’s finding at [30 e)] that the wife “[did] not raise any specific difficulty she has experienced in making a decision with the [husband] about a major long term issue”.
The fourth complaint (Ground 4(d)) also misses the point. Her Honour said this in [30 g)]:
Mr Watson, for the [wife], did not submit that there was any particular decision about a major long term issue that would require the parties making a joint decision pending a final hearing.
Thus, her Honour found that nothing was put about any major long-term issue decision that needed to be made prior to the final hearing. A perusal of the record confirms the accuracy of this finding.
The wife identified no major long-term issue that needed to be decided between the parties pending the trial or settlement of the action. These were interim proceedings. Any mooted conflict in respect of a major long-term issue was (a) speculative; and (b) subject to later determination in separate interim proceedings if, pending trial or settlement, such an issue arose.
There is no merit in this ground of appeal.
Ground 5
The learned Judge erred in finding at paragraph 31 of the Reasons for Judgment that “it seems that despite complaints about their ability to communicate the parties have nevertheless made decisions jointly e.g. overseas travel and holidays”, as such findings fail to take into consideration paragraphs 15 to 22 of the Appellant’s Affidavit of 13 July 2017, which provided evidence that it was not possible for the Appellant and Respondent to make joint decisions, and matters such as travel and holidays continue to cause significant conflict and dispute.
The paragraphs of the affidavit identified by the wife relate to the parties being unable to agree the time that the children would spend with each of the parties during the June/July 2017 school holidays.
However, the evidence before her Honour does not demonstrate that it was “not possible” for the parties to make joint decisions about major long-term issues, and it therefore does not establish error by the primary judge.
There is no merit in this ground of appeal.
Ground 6
The learned Judge erred in finding at paragraph 32 of the Reasons in accepting evidence from [Mr F] that that (sic) there is little prospect of the parties communication improving in the future and that the parties may be able to communicate about long term decisions in the future via a website called Our Family Wizard, as such findings fail to take into consideration paragraphs 45 to 46 of the Appellant’s Parenting Outline which identified why this would not be possible and the learned Judge failed to identity (sic) the Appellant’s concerns in the Reasons.
This is another ground of appeal that is unsustainable.
Her Honour said this in [32]:
Mr F has had the advantage of assessing and observing the parties and the children on two occasions and notes there is probably little prospect of the parties’ communication improving in the future. However, in his view there is no overt conflict and they have nevertheless managed to resolve issues when they have arisen (although I note the [wife] takes issue with these opinions). As a means by which the parties may communicate in future about day to day decisions and major long term decisions he suggests the parties use a particular website …
The specific complaint is that her Honour failed to “take into consideration paragraphs 45 to 46 of the [wife’s] Parenting Outline”, which it is said identified why it would not be possible to utilise the website. However, the fact is, that in those paragraphs all the wife says is that using the website will not resolve or reduce the conflict because the husband will continue to disregard her views.
Plainly, that evidence may have been relevant if her Honour had ordered that the parties should use a particular website to assist them in their day to day decisions. However, what seems to be lost on the wife is that her Honour was merely recording the evidence of the family report writer, and did not make such an order.
There is no merit in this ground of appeal.
Ground 7
The learned Judge erred by not having regard to or addressing paragraph 30 of the Appellant’s Parenting Outline referring to paragraph 11.14 of [Mr F’s] supplementary Family Report which stated that “many of these matters [referring to family violence] would need to be determined by the Court before conclusions could be reached with ultimate confidence around the children’s arrangements”.
We do not understand how this ground relates to the order for equal shared parental responsibility, as was submitted in the wife’s summary of argument.
Paragraph 11.14 of the supplementary family report is directed to a consideration of the time to be spent by the children with each parent, and not the issue of parental responsibility.
Furthermore, all that paragraph 30 of the wife’s outline of case does, is set out the quote from paragraph 11.14 of the supplementary family report.
We can find no merit in this ground of appeal.
Ground 8
Having found that the parties should have equal shared parental responsibility for the children the learned Judge was required, pursuant to Section 65DAA of the Act to consider the following:
(a) Whether the children spending equal time with each of the parents would be in their best interests (pursuant to Section 65DAA (1) (a));
(b) Whether an Order for equal time with each of the parents was reasonably practicable (pursuant to Section 65DAA (1) (b)).
The learned Judge did not consider either of those legislative requirements in her Reasons for Judgment and her failure to do so is an error of law.
There is no doubt that the Act requires the court to consider the matters in s 65DAA once it is found that the parties should have equal shared parental responsibility, but the authorities tell us, sensibly, that it is unnecessary to slavishly work through that section where the issues joined between the parties do not give rise to any such need. (E.g. see SCVG & KLD (2014) FLC 93-582).
As long as it is apparent from the whole of the reasons that a primary judge has considered what is required under this section, by reference to the issues joined, that is sufficient; parenting proceedings are inter parties litigation.
Here the primary judge was required to determine whether, on an interim basis, the time spent should be increased to seven nights each fortnight where the existing arrangement was for five nights each fortnight. Thus it was a narrow dispute, each party’s case was presented accordingly, and her Honour’s consideration of the Act’s mandatory requirements was framed on that basis.
Her Honour, early in her reasons, under the heading “HOW PARENTING APPLICATIONS ARE DETERMINED” set out the relevant sections of the Act and what each required.
Her Honour commenced this discussion at [9] as follows:
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.
(Footnote omitted)
Then, in [21] her Honour identified and referred to s 65DAA, and in [23] her Honour said this:
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.
(Footnote omitted)
Thereafter, her Honour dealt with each issue in dispute as was required, and at [35] – [39] her Honour specifically addressed the question of what time the children should spend with each parent pending a final hearing.
From that it can be seen that her Honour addressed what was necessary from s 65DAA, given the parameters of the dispute, and how the respective cases were presented. In that regard it is noteworthy that no suggestion was made of impracticability in the context of considering whether equal time should be ordered.
There is no merit in this ground of appeal.
Ground 9
In addition to Appeal Ground 8, the learned Judge failed to consider any of the indicia set out in Section 60CC of the Act and her failure to do so is an error of law.
This is a similar complaint to the one raised in Ground 8, and calls for the same response (e.g. see Banks and Banks (2015) FLC 93-637).
Her Honour in [14] identifies and refers to s 60CC of the Act, and then in [35] – [39] relevantly addresses the issues raised by the parties in support of their respective positions as to what order for time should be made.
It is readily apparent from a reading of the reasons as a whole, that her Honour has adequately and appropriately considered what she is obliged to in determining where the best interests of the children lie, always bearing in mind that that consideration is framed by the parameters of the issues in dispute, and how each party has presented their case.
There is no merit in this ground of appeal.
Ground 10
Having correctly identified the relevant case authority for the conduct of interim parenting proceedings (as the learned Judge did at paragraphs 9 and 10), the learned Judge failed to apply that case law to her findings in relation to the question of the children’s time with each of the parties, and her failure to do so is an error of law.
With respect, we have some difficulty in understanding this ground of appeal.
In [9] and [10] her Honour said this:
9.Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.
10.The Court is not required to make findings of fact on every factual dispute raised by the parties and as this is an interim hearing the Court is unable to make findings of fact where the facts are seriously in contention, other than if the evidence on its face is improbable.
(Footnotes omitted)
Then, in [11] – [22] her Honour set out in detail “the objects, principles and matters that must be considered” as referred to in [9], in [24] – [25] her Honour identified the issues requiring determination, and then in [26] – [42] her Honour made the factual findings relating to those issues to the extent she was able.
Thus, we cannot see that her Honour has failed to apply “the relevant case authority for the conduct of interim parenting proceedings … to her findings”, and the wife’s written summary of argument does not assist in explaining or amplifying this ground of appeal.
We can find no error by the primary judge here.
Ground 11
Having found that the evidence of family violence required that the presumption in s 61DA did not apply, the learned Judge erred in law in not considering s 60CG of the Act and the Reasons do not identify how the learned Judge took those allegations into account in determining the Orders she made for the children’s time with the parties.
This ground proceeds on an incorrect premise, namely that her Honour “found that the evidence of family violence required that the presumption in s 61D did not apply”.
As explained when considering Ground 1, in [29] her Honour was doing no more than applying s 61DA(3).
Her Honour was not able to determine whether or not it was reasonable to believe the husband had engaged in family violence, but, as it was an interim hearing, given that the evidence was capable of falling within the definition of family violence, her Honour considered it was not appropriate for the presumption to apply.
Given that her Honour was not able to make a finding of family violence, plainly, her Honour was not able to accept the allegations of family violence as having been established when deciding whether to increase the time from five nights to seven nights. In any event, it is difficult to see how allegations of family violence would necessarily be relevant to that fairly narrow issue, and the relevance is certainly not explained in the wife’s summary of argument.
It is also important to note that her Honour was well aware of the need to have regard to s 60CG of the Act, and her Honour referred to that section in [15], but as is plain, there was no basis, given the limited parameters of the dispute, to apply that section.
There is no merit in this ground of appeal.
Ground 12
In determining that the ‘reasons proffered should not limit the children’s time with the applicant’ (as the learned Judge did at paragraph 36 of the Reasons for Judgment) and additionally at paragraph 37, the learned Judge failed to consider:
(a) Section 60CC (2) (a) and whether the Orders proffered by the Appellant allowed for the children and the Respondent to have a meaningful relationship,
(b) Confused and conflated the concept of ‘limiting time’ with what the case law defines as a meaningful relationship (paragraph 36 of Godfrey & Sanders [2007] FamCA 102),
and the learned Judge’s failure to consider Section 60CC (2) (a) and to determine whether the Orders proposed by the Appellant (or Respondent) meant that the Respondent and the children would have a meaningful relationship, is an error of law.
This is a baseless ground of appeal.
It must be remembered that the existing consensual arrangement was that the children spend five nights each fortnight with the husband, and the question for her Honour was whether that should be increased to seven nights each fortnight.
We fail to see how it was necessary in determining that issue for her Honour to consider at any length, or at all, whether the proposed order “allowed for the children and the [husband] to have a meaningful relationship”. If five nights satisfied that requirement then plainly seven nights would. Further, we do not understand that this was an issue raised by the wife before her Honour.
In relation to the second aspect of the complaint in this ground, again we fail to understand what is being suggested. All that was said at [36] of Godfrey & Sanders (2007) 208 FLR 287 was that “what the [Act] aspires to promote is a meaningful relationship, not an optimal relationship”, and it is not explained by the wife how her Honour “confused and conflated” that proposition with any other proposition in her reasons.
There is no merit in this ground of appeal.
Ground 13
The learned Judge erred by not having regard to or addressing paragraph 30 of the Appellant’s Parenting Outline referring to paragraph 11.14 of [Mr F’s] supplementary Family Report which stated that “many of these matters [referring to family violence] would need to be determined by the Court before conclusions could be reached with ultimate confidence around the children’s arrangements”.
This ground replicates Ground 7, but this time it is advanced by way of attack not on the order for equal shared parental responsibility, but rather on the order governing the time the children are to spend with each party. Once again, however, we have some difficulty in understanding the thrust of the ground.
Read literally, the recommendation of the family report writer might be seen to require an adjournment of the application to enable the allegations of family violence to be determined. However, we do not understand that this is what the report writer was recommending and nor was an adjournment sought by the wife relying on any such recommendation, or otherwise.
Apart from that, we cannot see any other basis for her Honour to “have regard to or address” this part of the report writer’s report, since it is not in the nature of interim proceedings (or indeed final proceedings) that determinations can be made with “ultimate confidence”. We are also not assisted in that regard by anything in the wife’s summary of argument.
There is no merit in this ground of appeal.
Ground 15 (insofar as it relates to the parenting orders under appeal)
The Reasons for Judgment of the learned Judge are otherwise insufficient to support the Orders that she made.
There is no amplification of this bald assertion in the wife’s written summary of argument, but having carefully read her Honour’s reasons for judgment, we are not persuaded that they are “insufficient” to support the parenting orders.
Given the issues in dispute, and how the parties presented their respective cases, her Honour’s reasons adequately reveal why her Honour made the orders that she did.
There is no merit in this ground of appeal.
The financial agreement
Ground 14
The learned Judge erred in dismissing paragraph 34 of the Final Orders sought by the Appellant in the Further Amended Initiating Application filed 1 November 2016, in failing to have regard to the correct principles for summary dismissal in circumstances where:
(a) The Appellant’s final relief demonstrated a real question to be tried in a General Steel sense;
(b) The Appellant’s final relief was not determined by the earlier hearing on 27 May 2016;
(c) It was accepted that the earlier hearing on 27 May 2016 was interlocutory and that Anshun estoppel did not apply to interlocutory orders; and
(d) It would be unjust in an Anshun sense to preclude the Appellant from agitating the issues in paragraph 34 of the Further Amended Initiating Application as it does not impeach the Court’s findings on 27 May 2016 and raises different questions.
In addressing this ground of appeal it is necessary to understand the procedural history leading to the determination by her Honour of the husband’s application for summary dismissal of paragraphs 34 and 35 of the final orders sought by the wife in her Amended Initiating Application filed on 1 November 2016.
Uncontroversially, following the separation of the parties in 2015, the husband made it clear to the wife that he intended to be bound by the terms of the financial agreement entered into on 3 August 2006.
Consequent upon that indication, on 24 August 2015 the wife’s then solicitors enquired of the husband’s solicitors how he contended that the assets would be divided, but they reserved the wife’s position in relation to the agreement.
Correspondence was then entered into between the solicitors throughout November and December 2015, with the husband’s solicitors seeking confirmation that the wife accepted that she was bound by the agreement, but the wife’s solicitors seeking disclosure in relation to the assets to be divided before providing that confirmation.
Eventually, on 22 December 2015, the husband’s solicitors put the wife’s solicitors on notice that an application to enforce the terms of the financial agreement would be made.
Then, on 11 March 2016 the husband filed an Application in a Case seeking relevantly the following orders:
(1)That the hearing date of this application be abridged and the application be listed for hearing on the earliest possible date.
(2)That to the extent, if any, required there be an order that the financial agreement entered into by [Mr Garvey] (“the Husband”) and [Mrs Garvey] (“the Wife”) and dated 3 August 2006, a copy of which is annexed hereto and marked Annexure “A” (“the Financial Agreement”), be enforced as if an order of a Court with jurisdiction pursuant to the Family Law Act 1975 (Cth).
(3)That for the purpose of, and by way of, enforcement of the Financial Agreement:
[there then followed specific paragraphs as to how the agreement should be enforced]
Importantly, as set out by her Honour in [56], on 24 March 2016 the husband’s solicitors informed the wife’s solicitors that:
… in the event that your client contends that the agreement is one other than one binding upon the parties, this is not a matter that your client has sought to put in issue to date, notwithstanding prior requests seeking to ascertain your client’s position. If your client contends, would you advise by reply both as to the same and provide particulars as to the legal and/or financial basis for any such contention.
On 29 March 2016 the wife was ordered to file any Response to the Application in a Case within 14 days.
On 12 April 2016 the wife filed her Response in which she sought that the application be dismissed, or in the alternative, “if the Court determines that the purported Financial Agreement is enforceable” then it be enforced in accordance with the schedule of orders attached to the Response.
On 19 April 2016 the wife filed an Initiating Application clearly predicated upon the financial agreement being enforceable in which she sought, under the heading “other property”, the following:
32.Pursuant to section 79 of the Family Law Act (Cth) 1975 there be an adjustment of any other property of the parties which is not defined as either Mark’s assets, Elizabeth’s assets or joint assets pursuant to the Financial Agreement dated 3 August 2006 so as to divide any such property in equal proportions between the Applicant Wife and the Respondent Husband on the basis that with [sic] the Applicant Wife is to further particularise the orders sought by her following disclosure by the Respondent Husband.
On 20 May 2016 an Amended Initiating Application was filed by the wife which relevantly added another clause as follows:
33.Subject to the outcome of the proceedings relating to the Financial Agreement, pursuant to section 79 of the Family Law Act (Cth) 1975 there be an adjustment of property of the parties between the Applicant Wife and the Respondent Husband on the basis that with [sic] the Applicant Wife is to further particularise the orders sought by her.
The husband’s application and the wife’s response were then heard by her Honour on 27 May 2016. It is apparent that the issue before her Honour at that time was whether there was an agreement to be enforced. The position of the wife was that there was no agreement because the purported agreement was void for uncertainty.
To put that into context, that was the only issue raised by the wife to suggest the agreement could not be enforced, ostensibly in response to the invitation by the husband to bring forward all arguments that would bear upon whether the agreement could be enforced, and the order of the court that the wife respond to the husband’s application for an enforcement of the agreement.
On 7 June 2016 her Honour delivered her reasons for judgment and ordered that the wife’s response be dismissed. Her Honour found the agreement was not uncertain.
Then, on 1 November 2016 the wife filed an Amended Initiating Application which added the following paragraphs to the orders sought:
34.That pursuant to section 90K of the Family Law Act (Cth), or alternatively pursuant to section 90KA, the Court order that the Financial Agreement entered into between the parties on 3 August 2006 be set aside or alternatively a declaration be made that the said Financial Agreement is not valid, enforceable or effective.
35.In the absence of Orders pursuant to Paragraph 34 of the Application, and subject to the Court ordering that the Agreement of 3 August 2006 should be enforced as if it were an Order of this Court, that the said Financial Agreement be enforced as particularised by the Applicant Wife upon disclosure of documents and information by the Respondent Husband.
On the same day the wife was ordered to provide particulars of the grounds upon which she claimed that the financial agreement should be set aside or be declared not valid, enforceable or effective.
The wife provided the particulars on 23 December 2016. Her Honour conveniently summarised those particulars at [66] as follows:
…
a)Pursuant to s 90K(1)(d) there has been a material change in circumstances since the agreement was entered into and as a result the children or the respondent will suffer hardship if the agreement is not set aside;
b)Pursuant to s 90K(1)(b) or (e) the agreement should be set aside as a result of unconscionability at the time of entering into the agreement;
c)Pursuant to s 90K(1)(a) the agreement should be set aside as a result of the non-disclosure of a material matter amounting to fraud;
d)There is no agreement generally at law because it was abandoned;
e)There is no agreement generally at law because it was a sham.
On 13 February 2017 husband filed a Further Amended Response seeking that paragraphs 34 and 35 of the orders sought in the wife’s Amended Initiating Application be summarily dismissed.
Her Honour heard the application for summary dismissal on 17 July 2017, and on 3 August 2017 delivered her reasons for judgment and ordered that paragraph 34 of the orders sought by the wife be dismissed. She reserved the issues arising in paragraph 35 for consideration at a later date.
The reasons for judgment reveal that in dismissing paragraph 34 of the orders sought by the wife, her Honour applied the principle articulated in Henderson v Henderson (1843) 67 ER 313 at 319, and approved by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598, that:
… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
Her Honour also cited the following passage from the judgment of Murphy J in Anshun (at 605):
In this instance, the issue now sought to be raised was plainly open to be agitated in the previous litigation. The judgment in that case is inconsistent with the judgment now sought by the plaintiff. To preserve the orderly administration of justice the earlier judgment should be treated as conclusive on the question of indemnity. There is no discretion to allow the raising of that issue against the unwilling defendant; the attempt to do so is properly characterized as an abuse of process.
It could be said that her Honour also relied on a finding of abuse of process outside of the principle now known as the Anshun principle (e.g., see [44]), but there can be no doubt that the Anshun principle was front and centre in her Honour’s reasons for judgment. One basis of the challenge in this ground of appeal is that it is often said that the principle is not available where the earlier action is interlocutory and the orders do not finalise the proceedings (D A Christie Pty Ltd v Baker [1996] 2 VR 582, per Hayne JA at 599 and 603 and Charles JA at 606). Indeed, that is logical given that the principle is about establishing an estoppel.
Her Honour was alive to that though, and she attempted to address it by relying on the decision of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46.
The wife submits that her Honour was incorrect in suggesting that that decision in effect stands for the proposition that an Anshun type estoppel can apply to interlocutory orders. However, as we will explain shortly, that is a misunderstanding of what her Honour said in [70]. In brief compass, we understand her Honour to be saying that the fact that all aspects of the proceedings have not been finalised does not preclude the application of an Anshun type estoppel.
Her Honour found “much force” in the husband’s argument that it was “too late for the [wife] to raise fresh grounds upon which to attack the financial agreement” (at [43]).
Her Honour said this at [71]:
… The [wife], despite ‘notice, invitation and opportunity’, elected to limit her [previous] challenge to the financial agreement to one of uncertainty. The [husband] invited the [wife] as early as August 2015 to indicate her position in relation to the financial agreement. Her position, both in her filed Response to the Application in a Case and articulated by her Queen’s Counsel at the hearing on 27 May 2016 made her position abundantly clear, namely, if she lost on her argument as to uncertainty the next step would be how the agreement should be enforced and the [wife] had set out the order she would seek in that event. The relief sought in her Initiating Application and Amended Initiating Application was consistent with the position put by her Queen’s Counsel at the hearing on 27 May 2016.
Her Honour further found that there were no special or exceptional circumstances which would cause the application of the Anshun principle to be unjust (at [74]).
Given that background, the primary thrust of the wife’s appeal, as explained in her counsel’s oral submissions, was that there were different causes of action that were before the court on 27 May 2016 and 17 July 2017.
The cause of action before the court in May 2016 was whether the essential terms of the agreement were so lacking or uncertain that there was in fact no agreement. However, the cause of action before the court in July 2017 was a claim to set aside the financial agreement pursuant to s 90K (and/or s 90KA) of the Act for reasons that had nothing to do with any claim of uncertainty. It is said that entirely different questions are raised, and the resolution of the earlier proceedings cannot prevent the pursuit of the later proceedings.
Alternatively, the wife relies on the argument that the earlier action was interlocutory and the Anshun principle does not apply in those circumstances.
The husband’s position in relation to the wife’s primary argument is that a characterisation of the causes of action does not provide the answer, and in relation to the alternative claim, the Anshun principle did apply because the earlier order finalised between the parties the issue of enforcement of the financial agreement.
To repeat, the issue for determination before her Honour on the first occasion, was whether the agreement should be enforced (at [9] – [12] reasons for judgment, 7 June 2016), and in that context it is important to emphasise three matters. First, despite, as her Honour described it in [71] the wife having “notice, invitation and opportunity” to bring forward all of her arguments, the only basis put before the court on that occasion by the wife for not enforcing the agreement was that it was void for uncertainty. Secondly, on that occasion, counsel for the wife specifically “eschewed the need to rely on s 90K” (at [15] reasons for judgment 7 June 2016). Thirdly, the position of the wife was that if the agreement was held not to be void for uncertainty, it should be enforced in accordance with the schedule that she provided as to how that should occur. Indeed, shortly after filing her response the wife filed an Initiating Application predicated upon the financial agreement being enforceable and seeking an adjustment of any property of the parties not caught by the financial agreement.
Thus, her Honour having concluded that the agreement was not void for uncertainty, the manner in which the wife framed her case was such that she advanced no impediment to the agreement being enforced in accordance with its terms and to the agreement being enforced as a “financial agreement” within the meaning of the Act (see Ruane & Bachmann-Ruane and Ors (Accrued Jurisdiction) (2012) 48 Fam LR 131 and Senior & Anderson (2011) FLC 93-470). In fact, she advanced the very opposite position; she argued that it should be enforced, if not void for uncertainty.
Her Honour’s finding at [71] that the wife had “notice, invitation and opportunity” to argue her case that the agreement should not be enforced is plainly correct. The wife had notice of the husband’s contention that the agreement was enforceable as an agreement, and as a “financial agreement” within the meaning of the Act. She had the opportunity in the 2016 proceedings to advance such case as she might raise in denial of his particularised assertions.
Thus, it was not open to the wife to subsequently pursue a claim to set aside the agreement for reasons that could, and should have been put before the court previously, in the context of determining the issue of enforceability.
In other words, although the proceedings may not have been finalised by her Honour’s order of 7 June 2016 because it was then a matter of how the agreement would be enforced, the question of the enforceability of the agreement was finally determined by her Honour’s order dismissing the wife’s response, and the wife was estopped from subsequently bringing proceedings which challenged that enforceability via claims based on s 90K (and/or s 90KA) of the Act. Indeed, her Honour was correct in applying the Anshun principle here, and we are not persuaded that her Honour erred in finding that the wife was estopped from bringing the further proceedings.
Although there were distinct causes of action, that masks what in fact was the outcome of the first action. To repeat, the issue before the court was whether the agreement should be enforced, and the wife had been put on notice by the husband that she should bring forward all arguments that went to that issue, and plainly that would include any claim to set aside the agreement pursuant to s 90K (and/or s 90KA). The court had also ordered that the wife respond to the application for enforcement, and the wife clearly had the opportunity to present all arguments as to why the agreement should not be enforced. Nevertheless, she chose to limit her challenge to a claim that the agreement was void for uncertainty, and to repeat, she went further and set out how the agreement should be enforced if it was not void for uncertainty. Moreover, as referred to above, shortly after filing her response the wife filed an Initiating Application predicated upon the financial agreement being enforceable and seeking an adjustment of any property of the parties not caught by the financial agreement.
In Tomlinson v RamseyFood Processing Pty Ltd (2015) 256 CLR 507, the plurality (at [22]) identified the three forms of estoppel “recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding”. The first is “cause of action estoppel”, the second is “issue estoppel”, and the third is described by the High Court as follows:
… The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue is so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
(Footnotes omitted)
Applying this analysis, we consider 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 proceeding for the claim not to have been made or the issue not to have been raised in that proceeding”.
It should be conceded, we think, that the 2016 proceedings before her Honour can be described as interlocutory in the sense that they did not finalise the entirety of the proceedings. However, we do not consider that conclusion to be, without more, the bar to her Honour’s finding for which the wife contends on this appeal.
The specific quote incorporated by her Honour from the decision of McLelland J in Brimaud, into her reasons was as follows:
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 re-litigated at will.
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)
It seems to us that the relevance of an earlier order being “interlocutory” as opposed to “final” is to differentiate between when an issue has been finally determined between the parties and when it has not. In this case, we consider that the issue of the enforceability of the agreement was finally determined.
In these circumstances, we find no merit in Ground 14.
Ground 15 (insofar as it relates to the financial agreement)
The Reasons for Judgement (sic) of the learned Judge are otherwise insufficient to support the Orders that she made.
Once again, there is no amplification of this bald assertion in the wife’s written summary of argument, but having carefully read her Honour’s reasons for judgment, we are not persuaded that they are “insufficient” to support the order for summary dismissal.
Given the issues in dispute and how the parties presented their respective cases, her Honour’s reasons adequately reveal why her Honour made the order that she did.
There is no merit in this ground of appeal.
Costs
At the conclusion of the hearing we sought submissions from the parties as to the question of costs depending on the result of the appeal and the application for leave to appeal.
Both parties submitted that costs should follow the event.
Thus, given that we will be dismissing the appeal, there will be an order for costs against the wife.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Murphy JJ) delivered on 13 March 2018.
Associate:
Date: 13 March 2018
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