FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kartal & Templeman [2022] FedCFamC1A 46
Appeal from: Orders 1, 2, 3, 4 and 5 dated 13 October 2021 Appeal number(s): NAA 62 of 2021 File number(s): PTW 2692 of 2021 Judgment of: AUSTIN J Date of judgment: 4 April 2022 Catchwords: FAMILY LAW – APPEAL – Appeal from the Magistrates Court of Western Australia – Property – Where the magistrate made interlocutory orders for the sale of the former family home and the use of its proceeds – Where the wife contends the magistrate’s orders are final rather than interlocutory – Where the orders are not final because they do not exhaust the Court’s statutory power and do not dispose of the justiciable cause between the parties – Where the wife cannot demonstrate sufficient doubt attends the decision to warrant the grant of leave to appeal – Leave refused – Applications in an Appeal – Adduce further evidence – Where there is no appeal within which to adduce any further evidence – Applications dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, ss 45A 60CA, 65AA, 75, 79, 114
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Property Law Act 1969 (WA) ss 126, 127
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Gabel v Yardley (2008) FLC 93-386; [2008] FamCAFC 162
Licul v Corney (1976) 180 CLR 213; [1976] HCA 6
Ravasini & Ravsini (1983) FLC 91-312; [1982] FamCA 62
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Molier & Van Wyk (1980) FLC 90-911; [1980] FamCA 85
Pera & Pera (2008) FLC 93-372; [2008] FamCAFC 87
Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33
Sarto & Sarto [2022] FedCFamC1A 16
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Number of paragraphs: 87 Date of hearing: 29 March 2022 Place: Newcastle (via video link) Counsel for the Applicant: Mr Hannan Solicitor for the Applicant: Lavan Legal Counsel for the Respondent: Mr Klimek Solicitor for the Respondent: KDK Family Law ORDERS
NAA 62 of 2021
PTW 2692 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS KARTAL
Applicant
AND: MR TEMPLEMAN
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
4 APRIL 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 15 March 2022 is dismissed.
2.The Application in an Appeal filed on 25 March 2022 is dismissed.
3.Leave to appeal is refused.
4.The Amended Notice of Appeal filed on 11 February 2022 is dismissed.
5.The applicant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum…
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CaseChat Overview and Summary
In the case of Kartal & Templeman, the applicant, Ms Kartal, appealed against the interlocutory orders made by the Magistrates Court of Western Australia regarding the sale of the former family home and the use of its proceeds. The court had to determine whether the orders were final or interlocutory, whether the applicant could demonstrate sufficient doubt to warrant the grant of leave to appeal, and whether the applicant could adduce further evidence in the appeal. Ms Kartal argued that the orders were final and that she could adduce further evidence to support her appeal. However, the court held that the orders were interlocutory, that there was no sufficient doubt to warrant the grant of leave to appeal, and that the applicant could not adduce further evidence as the appeal was not a rehearing of the case.
The court found that the orders were not final because they did not exhaust the court's statutory power and did not dispose of the justiciable cause between the parties. The court also held that Ms Kartal could not demonstrate sufficient doubt to warrant the grant of leave to appeal, as the appeal was not a rehearing of the case and the evidence proposed to be adduced was available and could reasonably have been obtained at the time of the hearing before the magistrate. The court further held that the applicant could not adduce further evidence in the appeal as it was not a rehearing of the case and the evidence was not relevant to the appeal. The court dismissed the application to adduce further evidence and ordered the applicant to pay the respondent's costs of and incidental to the appeal, fixed in the sum of $8,823.
The court found that the orders were not final because they did not exhaust the court's statutory power and did not dispose of the justiciable cause between the parties. The court also held that Ms Kartal could not demonstrate sufficient doubt to warrant the grant of leave to appeal, as the appeal was not a rehearing of the case and the evidence proposed to be adduced was available and could reasonably have been obtained at the time of the hearing before the magistrate. The court further held that the applicant could not adduce further evidence in the appeal as it was not a rehearing of the case and the evidence was not relevant to the appeal. The court dismissed the application to adduce further evidence and ordered the applicant to pay the respondent's costs of and incidental to the appeal, fixed in the sum of $8,823.
Orders
Orders of the court
NAA 62 of 2021
PTW 2692 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS KARTAL
Applicant
AND:
MR TEMPLEMAN
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
4 APRIL 2022
THE COURT ORDERS THAT:
1. The Application in an Appeal filed on 15 March 2022 is dismissed.
2. The Application in an Appeal filed on 25 March 2022 is dismissed.
3. Leave to appeal is refused.
4. The Amended Notice of Appeal filed on 11 February 2022 is dismissed.
5. The applicant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $8,823.
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).
Background
Background to the litigation
For the reasons which follow, leave to appeal should be refused.Background Proceedings between the parties under the Family Law Act 1975 (Cth) (“the Act”) were commenced by the husband in March 2021. The parties each seek relief under Pt VII and Pt VIII of the Act in respect of their children and property, but the proceedings are yet to be fixed for trial. Importantly for present purposes, both parties sought interim relief and their respective applications were fixed for hearing in September 2021. By the time of the interim hearing, the husband sought the orders set out in the Minute of Orders he had circulated on or about 6 September 2021 and the wife sought the orders set out in the Response she filed on 17 June 2021. The hearing occurred on 13 September 2021 and was adjourned to 17 September 2021 for the delivery of judgment. However, on 16 September 2021, the day before judgment was to be delivered, the wife filed an application to re-open and adduce more evidence. Judgment was not delivered on 17 September 2021. Instead, the parties were ordered to file updating applications and evidence and the hearing was adjourned to 8 October 2021. In effect, the wife was granted leave to re-open and both parties were permitted to update their positions, though the order confirming such leave was not formally made until later. By the time of the next hearing date, the husband sought the orders set out in the Response to an Application in a Case he filed on 5 October 2021 and the wife sought the orders in the Minute of Orders she circulated and handed up in Court at the hearing. In effect, the husband sought the sale of the former family home and the use of its net sale proceeds (after discharge of the mortgage and payment of attendant sale expenses) to pay other specified debts. He also proposed the partial distribution of the residual proceeds between the parties by way of interim property settlement: $25,000 to him and $50,000 to the wife. Conversely, the wife sought the transfer to her of exclusive title in the former family home and an order compelling her to enter into a loan for $900,000 with her relative (“Mr P”) secured by mortgage over the former family home, which money she would then use to discharge the existing mortgage and certain other debts. The wife alternatively proposed that she enter into a loan for $300,000 with another relative (“Ms L”), though it was not made plain how that alternative plan could be advantageous, since the quantum of the mortgage and other debts the wife wanted to pay with the loan far exceeded $300,000. The hearing resumed on 8 October 2021, at which time each party made fresh submissions. At the conclusion of the hearing, judgment was reserved until 13 October 2021, when the orders were pronounced and reasons for judgment were delivered orally. The appealed orders made provision for the sale of the former family home, though not until January 2022 (Orders 1 and 5), the use of the sale proceeds to discharge the existing mortgage and to pay the sale expenses and certain other debts (Order 2), and the parties’ restraint from using any of the residue sale proceeds without the other’s consent or pursuant to Court order (Order 3). Some other orders were made, but they are not the subject of the appeal.Leave to Appeal
Evidence
Evidence Before The Court
More importantly though, the wife cannot demonstrate that sufficient doubt attends the decision to warrant the grant of leave to appeal, even with the aid of the further evidence she proposed to adduce. The ensuing discussion elaborates the lack of merit in the appeal.Applicant’s applications to adduce further evidence On 15 March 2022, the wife filed an Application in an Appeal seeking permission pursuant to s 35(b) of the FCFCA Act to adduce further evidence in the appeal, which application was supported by her simultaneously filed affidavit and another filed on 25 March 2022. In summary, the wife sought leave to adduce in evidence:(a)her affidavit sworn on 7 September 2021 (relevant to Grounds 1, 2 and 5);(b)her affidavit filed on 25 October 2021 (relevant to Ground 5);(c)an affidavit of the husband filed on 17 January 2022 (relevant to Ground 8);(d)an unexecuted mortgage between her and Mr P (relevant to Ground 7);(e)an unexecuted loan agreement between her and Ms L (relevant to Ground 7); and(f)a valuation and some appraisals as to the current value of the former family home, attached to her affidavit filed on 25 March 2022 (relevant to Grounds 1 and 2). In view of the refusal of leave to appeal, there is no appeal within which to adduce any further evidence and so the wife’s application will be dismissed, as the husband sought. The proposed further evidence is discussed in conjunction with the pertinent grounds of appeal. However, the parties agreed several documents omitted from the Appeal Book were before the magistrate and should therefore form part of the material in the appeal. They were:(a)the wife’s affidavit sworn on 7 September 2021 (referred to above);(b)the wife’s financial statement filed on 17 June 2021; (c)the husband’s financial statement filed on 30 March 2021; and(d)the affidavit of Ms L filed on 8 September 2021. The wife filed a second Application in an Appeal on 25 March 2022, supported by another lengthy affidavit, seeking permission to adduce even more evidence in the appeal, which the husband opposed. This application and the accompanying affidavit were filed late, in breach of r 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), without any satisfactory explanation for the lateness. Without intending to trivialise the wife’s evidence, she blamed the delay upon stress caused by ongoing litigation and her pre-occupation caring for the parties’ two children. This application is dismissed for lateness but, besides, the relevance of the evidence is not established. The documents the wife wants to adduce (being corporate searches and banking documents) were destined to support her attempt to prove in the appeal that the husband failed to fully and frankly disclose his financial circumstances prior to the hearing before the magistrate. She deposed such evidence advanced her claims under Grounds 1, 2 and 6, but it is difficult to see how that could possibly be so. The magistrate did not, and was not expressly asked to, make any finding about the father’s financial disclosure.
Decision
Reasons for decision
This is an appeal and, although it is conducted by re-hearing, there are well recognised limits to the reception of evidence not led at first-instance. The subject further evidence was available and could reasonably have been obtained at the time of the hearing before the magistrate. Its reception would tend to obliterate the distinction between original and appellate jurisdiction (CDJ v VAJ at ([55], [111], [114], [116] and [186.9]). An appeal is the chance to review whether the primary judge fell into appealable error; not to run a better case than could and should have been run at first-instance.Conclusion Leave to appeal is refused and the Amended Notice of Appeal filed on 11 February 2022 is dismissed. Since leave to appeal is refused, there is no appeal within which to adduce further evidence and so the wife’s Application in an Appeal filed on 15 March 2022 is dismissed. The dismissal of her second Application in an Appeal filed on 25 March 2022 has already been explained. In the event of refusal of leave or dismissal of the appeal, the husband sought an order compelling the wife to pay his party/party costs of and incidental to these proceedings in the sum of $8,823.44. The wife resisted such an order as her financial circumstances are so modest, but she willingly incurred liability to her own lawyers for costs to prosecute these proceedings, quantified at the surprisingly large sum of $41,624.14. Implicitly, she must have some asset or resource readily available to her to meet the liability. The application for leave to appeal was wholly unsuccessful and, in some respects, completely misconceived. The husband was needlessly put to the expense of defending the magistrate’s orders and should have his reasonable party/party costs by way of reimbursement. The wife’s financial resources are apparently not so parlous as to preclude such an order. She did not dispute the reasonableness of the husband’s costs, but they are rounded to the nearest dollar.
Ratio Decidendi
Legal Principle Established
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