Kingston & Field (No 2)
[2022] FedCFamC1A 87
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kingston & Field (No 2) [2022] FedCFamC1A 87
Appeal from: Field & Kingston [2021] FedCFamC1F 353 Appeal number(s): NAA 13 of 2022 File number(s): PAC 2095 of 2014 Judgment of: MCCLELLAND DCJ, BAUMANN & CHRISTIE JJ Date of judgment: 30 June 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from the primary judge’s decision to summarily dismiss the appellant’s s 79A application – Where the appellant’s evidence does not address the criteria set out in s 79A of the Family Law Act 1975 (Cth) – Where the appellant complains of original orders made pursuant to s 79 – Where the appellant has already appealed against the original orders – Where the appellant cannot re-agitate his original argument – No error demonstrated and appellant is wholly unsuccessful – Appeal dismissed – Costs ordered pursuant to s 117 – Appellant to pay the respondent’s costs. Legislation: Family Law Act 1975 (Cth) ss 79, 79A, 117, 117B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: Ali v The Queen (2005) 214 ALR 1; [2005] HCA 8
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Barker v Barker (2007) 36 Fam LR 650; [2007] FamCA 13
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Dakin & Dakin [2012] FamCAFC 120
Harford & Spalding [2022] FedCFamC1A 78
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Newett and Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Sun Alliance Insurance Limited v Massoud [1989] VR 8
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Wagner & Wagner (2009) FamCAFC 16
Number of paragraphs: 55 Date of hearing: 2 June 2022 Place: Sydney Counsel for the Appellant: Mr Page QC Solicitor for the Appellant: Cathers Beaver & Kamiya Lawyers Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Matthews Folbigg Lawyers ORDERS
NAA 13 of 2022
PAC 2095 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KINGSTON
Appellant
AND: MS FIELD
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, BAUMANN & CHRISTIE JJ
DATE OF ORDER:
30 JUNE 2022
THE COURT ORDERS THAT:
1.Leave is granted for the appellant to rely on his Summary of Argument filed 26 April 2022.
2.Leave is granted for the respondent to rely on her Summary of Argument filed 25 May 2022.
3.The appeal is dismissed.
4.The appellant pay the respondent’s costs in a fixed sum of $13,635.82 within 14 days.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingston & Field has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, BAUMANN & CHRISTIE JJ:
By Notice of Appeal filed 14 January 2022, Mr Kingston (“the appellant”) appeals against orders of a Justice of the Federal Circuit and Family Court of Australia (Division 1) (“the primary judge”) made 17 December 2021.
Ms Field (“the respondent”) seeks both orders that the appeal be dismissed and her costs of the appeal.
On 1 September 2021, the appellant filed an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside orders made on 21 November 2019 (“the final orders”). In response, on 6 October 2021, the respondent filed an application seeking to have the appellant’s application summarily dismissed under s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”). On 16 November 2021, the appellant filed an application seeking a stay of orders for enforcement of the final orders.
On 6 July 2021, the respondent filed an Application in a Proceeding seeking interest on the sum due to be paid to her pursuant to the final orders. She amended that application on 20 August 2021. The respondent’s application was dismissed by a registrar on 10 November 2021. The respondent filed an Application for Review on 26 November 2021. That review was before the primary judge on 25 November and 16 December 2021, with reasons for judgment being delivered the following day.
The primary judge summarily dismissed the appellant’s application under s 79A of the Act and ordered interest payable by the appellant to the respondent on the sum outstanding under the final orders.
BACKGROUND
The parties were married for 14 years and, at the time of final orders, there were three children of the marriage under the age of 18.
On 21 November 2019, the primary judge made the final orders, the effect of which was to divide the property of the parties such that the respondent received 47.5 per cent of the property and the appellant received 52.5 per cent of the property. The appellant was ordered to pay the respondent $1,232,616 within three months and, in default of payment, the property at S Street, Suburb B (“the Suburb B property”) was to be sold.
On 17 December 2019, the appellant appealed against the final orders. Pending appeal, the appellant sought and, on 30 April 2020, was granted a stay of the orders on the condition that he pay to the respondent the sum of $500,000 within eight weeks. The appellant did not comply with this condition of the stay.
On 30 April 2020, the appellant filed an appeal against the orders granting the stay. That appeal was deemed abandoned and the appellant’s application to have it reinstated was dismissed by the Full Court of the Family Court of Australia (as it was then known) on 17 July 2020.
On 24 September 2020, the appeal against the final orders was dismissed. The appellant made an application for special leave to appeal to the High Court of Australia (“the High Court”), which was refused on 5 November 2020.
On 23 December 2020, the appellant’s application to vary the final orders was dismissed.
On 4 February 2021, the appellant’s application for special leave to appeal the 24 September 2020 decision of the Full Court of the Family Court of Australia (as it was then known) was refused.
On 25 March 2021, the respondent sought enforcement of the final orders. The respondent’s application to be appointed trustee for sale was dismissed. The respondent appealed from that order and, on 16 November 2021, the Full Court of the Family Court of Australia (as it was then known) made orders that the respondent be paid $1,518,518.16 from the proceeds of sale of the Suburb B property.
On 29 June 2021, the respondent’s enforcement application was determined and the appellant ordered to pay to the respondent the sum in Order 1 of the final orders by noon on 6 July 2021.
As outlined above, the primary judge considered the various applications of the parties when the matter was listed on 25 November, 16 December and 17 December 2021, being:
(a)Application for summary dismissal of the appellant’s s 79A application;
(b)Application by the appellant for stay of enforcement (in the event summary dismissal was unsuccessful);
(c)Application by the respondent for security for costs (in the event summary dismissal was unsuccessful); and
(d)Application for interest on outstanding monies in the event summary dismissal was successful.
THE APPEAL
Preliminary issues
The appellant was due to file his Summary of Argument on or before 12 April 2022.
On 12 April 2022, the appellant indicated that the Summary of Argument would not be filed on time and sought an extension. Ultimately, a Summary of Argument was filed by the appellant on 26 April 2022. The appellant required leave to file the summary.
The respondent was due to file her Summary of Argument on 10 May 2022. The respondent filed her Summary of Argument on 25 May 2022. The respondent also required leave to file the summary.
Neither party opposed leave being granted. Both parties were granted leave to file and rely on the summaries filed other than in accordance with the procedural orders.
The appeal hearing
The Notice of Appeal set out two grounds of appeal:
1.That in ordering that the application made by the respondent and filed on 6 July 2021 be dismissed the trial judge erred in that he:
(a)Made the order in the absence of any or any adequate reasons for so doing;
(b)Made the order in the absence of any finding that the application was not arguable;
(c)Failed to have any or any adequate regard to the evidence of the respondent filed in support of the application.
2.That in ordering the payment of interest to the applicant on monies payable in terms of an order the trial judge erred:
(a)by a failure by him of any reference to the terms of section 117B(2) of the Family Law Act;
(b) by a failure to have any proper regard evidence that was before him
(As per the original)
The appellant sought orders as follows:
1. That the appeal be allowed;
2. That the order made by the trial judge be discharged;
3.That the applications that were before the trial judge on 16 December 2021 be remitted for re hearing in the Parramatta Registry of the Family Court by a judge other than [the primary judge];
4.That a certificate be issued to the appellant relating to the costs of and incidental to the appeal to the re-hearing.
(As per the original)
The appeal challenges the order for summary dismissal of the appellant’s s 79A application.
The primary judge, in hearing the application for summary dismissal, was applying the principles in s 46 of the FCFCOA Act, which provides:
(1)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:
(a)the first is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(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 part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(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 party of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
…
The primary judge was considering the merits of the appellant’s application to set aside the final orders pursuant to s 79A of the Act. To the extent that it is possible to discern the basis upon which the appellant contended the orders should be set aside, it would appear as though he was submitting that s 79A(1)(a) of the Act was engaged. Section 79A(1)(a) states:
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), giving of false evidence or any other circumstance;
The focus of the Court’s attention, when evaluating the merits of an application made in reliance upon s 79A(1)(a) of the Act, is on the circumstances occurring during the trial. The expression “miscarriage of justice” refers to the judicial process. It may be the action of a party or a judicial officer, but it must be integral to the process of obtaining the orders. The temporal nature of matters under s 79A(1)(a) of the Act is reinforced by the use of the expression “in the circumstances that have arisen since the making of the order…” which appears in s 79A(1)(b) and (d) of the Act. It is also apparent that s 79A(1)(c) of the Act speaks of “default” in carrying out orders which have been made.
Queen’s Counsel for the appellant confirmed that his client relied only on s 79A(1)(a) and, consequently, the focus is on the conduct of proceedings up to and including the trial, as the Full Court set out in Barker v Barker (2007) 36 Fam LR 650 at [120]:
A miscarriage of justice under s79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process (original emphasis)” (Bigg v Suzi (supra) at 84,982). See also Suiker (supra); Public Trustee (as executor of the estate of Gilbert) v Gilbert (supra)). While cases such as Suiker; In the marriage of Holland (1982) FLC 91-243, In the marriage of Gebert (1990) FLC 92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage of justice must nevertheless have been such as to have had an influence on the outcome of the litigation.
The appellant did not establish, before the primary judge, that the matters which concerned him had any influence on the outcome of the litigation (in some cases because they happened after it concluded).
Significantly, the Court would not be expected, when assessing the merits of an application pursuant to s 79A of the Act, to have regard to matters which had already been heard and determined either before the judge who made the final orders, judges sitting on appeal, or judges determining applications for enforcement.
Given the appellant’s complaint, the focus is before, during and at the time the orders were made (not after): s 79A(1)(a) of the Act. That is not to say that the appellant did not have significant complaints about matters which post-dated the orders but, significantly, they do not fall within the rubric of s 79A(1)(b), (c) or (d) of the Act. Section 79A of the Act is not a mechanism through which a person who is aggrieved with a final determination under s 79 of the Act may seek answers to outstanding queries or concerns.
Queen’s Counsel for the appellant submitted that, in considering the dismissal of the appellant’s s 79A application on a summary basis, the primary judge ought to have concluded that the appellant’s perception that there had been a miscarriage of justice was an arguable case for the purpose of “any other circumstance”. This raised the question of whether the test for “miscarriage of justice” is objective or whether, as the appellant contended, it may be satisfied by the appellant’s subjective belief. We do not accept that the subjective beliefs of a party (without more) can establish that a miscarriage of justice has occurred. Otherwise, each party who is aggrieved by the final result would point to his or her subjective belief as a basis for relief under s 79A of the Act. The focus is on the conduct of the case. The concept that a miscarriage of justice is to be determined by objective assessment is well settled. The judge hearing the case examines the facts and circumstances said to constitute the miscarriage of justice and does so, as is plain from the consideration of the expression “miscarriage of justice” in the criminal law jurisprudence, adopting an objective standard: see TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 214 ALR 1; Nudd v The Queen (2006) 225 ALR 161. The Federal Circuit and Family Court of Australia (Division 1) exercising its appellate jurisdiction (“the Court”) has considered and approved that line of jurisprudence in Dakin & Dakin [2012] FamCAFC 120.
The primary judge concluded that the husband’s perception that the final orders were unjust (or unjustly achieved) is not a basis for relief under s 79A of the Act. The assessment of whether the facts constitute a miscarriage of justice is a discretionary decision, which is founded in an objective consideration of the circumstances.
While the expression “any other circumstance” is not to be read ejusdem generis with the list which precedes it and should be given its plain and wide meaning, it must be a circumstance that led to a miscarriage of justice. The appellant identified concern about a lack of explanation for procedural steps in the litigation (change of judicial officer or registry) and concern about the involvement of the respondent’s lawyer as the solicitor on record when she had previously been employed as a registrar of the Court. It is not in doubt that these topics were matters of concern to the appellant, however there was no evidence before the primary judge that they were matters productive of a miscarriage of justice.
Queen’s Counsel for the appellant referred the Court to the decision in Wagner & Wagner (2009) FamCAFC 16 at [37]. Reference was made to the fact that s 79A of the Act “is a remedial section intended to overcome miscarriages of justice and certain other specific difficulties or hardships and should be construed liberally to effect its intended purpose.” The appellant placed emphasis on the expression “certain other difficulties or hardships”. This expression does not increase the scope of statutory relief; it merely describes the various subsections of s 79A of the Act. Given the way in which the appellant’s case was argued in reliance upon s 79A(1)(a) of the Act, the success or otherwise of his application was always dependent upon whether his evidence, taken at its height for the purpose of the summary dismissal application, was capable of establishing a reasonable prospect of success in his contention that there had been a miscarriage of justice.
Ground 1
The appellant contends that the primary judge erred in dismissing his s 79A application for three reasons, identified in Ground 1 as:
(a)Insufficient reasons;
(b)Failure to make a finding that the application was not arguable; and
(c)Failure to consider relevant evidence.
Insufficient reasons
In Bennett & Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Limited v Massoud [1989] VR 8 at 18 (recently reaffirmed by the Full Court in Harford & Spalding [2022] FedCFamC1A 78 at [27]):
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)The appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) Justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
The primary judge set out with specificity, at [16]–[42] of the reasons for judgment, each of the contentions which the appellant had agitated and the reasons why those contentions had been rejected. It is plain from the reasons for judgment the basis upon which the primary judge permitted the summary dismissal application to succeed.
The primary judge is not required to detail each fact (relevant or irrelevant), nor is he or she required to make an explicit finding in respect of all contested evidence: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Rafferty & Spencer (2016) FLC 93-710 at [30].
Made an order absent a finding that the application was not arguable
The primary judge appropriately made reference to s 46 of the FCFCOA Act as being the statutory basis for a finding that summary dismissal is appropriate.
At [43], the primary judge set out the conclusion that “all of the matters raised in the s 79A application appear to have been ventilated at trial, various interlocutory hearings, or on appeal”. His Honour, as a consequence, concludes that the appellant’s “subjective views” are insufficient to ground a concern that there has been a miscarriage of justice. The final sentence of [43] reads “[n]one of the individual points appear to me to have any merit”.
The primary judge considered the submission made on behalf of the appellant that, taken collectively, the matters which he had raised in support of his s 79A application, whilst individually being inadequate to establish a miscarriage of justice, could in aggregate satisfy the Court. At [46], his Honour concluded: “I am satisfied that the husband has no reasonable prospects of success, nor any reasonable likelihood of success in the s 79A application.” This finding, in the language of s 46 of the FCFCOA Act, was sufficient to dismiss the application.
Failure to consider relevant evidence
The submissions on behalf of the appellant do not make plain precisely what evidence is said to have been overlooked by the primary judge. The role of the Summary of Argument and the oral submissions is to identify with precision where the error exists in the material, as opposed to assuming that task will be undertaken by this Court.
It cannot be assumed that an appeal court (absent reasonably obvious error) will embark on the task of locating the material said to establish error: Newett and Newett (No 2) (2021) FLC 94-051 at [34]. As has been observed by the Full Court of the Federal Court of Australia in Bahonko v Sterjov (2008) 166 FCR 415 at [3]:
Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22] – [30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]. This basic principle imposes an obligation upon an appellant to identify where error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
The Court was not taken to any specific examples of relevant evidence which the primary judge failed to consider. A fair reading of the reasons for judgment suggests that the primary judge carefully analysed all 53 contentions raised by the appellant to determine whether, either individually or collectively, they were capable of constituting a case for s 79A relief.
Ground 1 fails.
Ground 2
Failure to consider relevant terms of s 117B(2) of the Act
The appellant’s written submissions did not address Ground 2. At the conclusion of the appellant’s oral submissions, it was noted by the Court that Queen’s Counsel for the appellant had not made any submissions in support of Ground 2. At that stage, the appellant abandoned Ground 2.
CONCLUSION
The appellant did not make out the sole ground of appeal he prosecuted from the two grounds advanced in his Notice of Appeal filed 14 January 2022. Accordingly, the appeal will be dismissed.
COSTS
The respondent indicated that if the appeal were to be dismissed, she would seek a costs order.
On 23 May 2022, the respondent filed a schedule of costs in accordance with Schedule 3 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) which set out costs in the sum of $13,635.82.
Section 117(2) of the Act confers on the Court the power to, in justifying circumstances, “…make such order as to costs and security of costs… as the court considers just”.
Section 117(2A) is a non-exhaustive list of matters for consideration where a costs order is sought. In this case, it was submitted that since the appellant has been wholly unsuccessful in his appeal, he should be ordered to pay the respondent’s costs of and incidental to the appeal: s 117(2A)(e) of the Act.
It is not necessary for a party seeking costs to identify multiple bases before an order for costs will be appropriate. The fact that the appellant has been wholly unsuccessful is sufficient.
The appellant resisted the making of an order for costs on the basis that, as was submitted, he brought the appeal on a bona fide basis. Though that may be the case, the evidence does not allow us to determine that issue one way or the other.
The appellant’s conduct of the appeal is relevant. The appellant did not file his Summary of Argument as required by the orders. When the summary was filed, it failed to address Ground 2 at all. At the close of the appellant’s submissions, Ground 2 was withdrawn. The respondent had addressed Ground 2 in her written Summary of Argument.
The appellant pointed to his financial circumstances as relevant to the exercise of discretion in making a costs order. His financial circumstances are relevant, but not determinative. In any event, the Court was told that the appellant holds $730,000 in a bank account and a further $9,000 remaining in a trust account. Even if he were impecunious, it is plain that a costs order could still be made: Northern Territory v Sangare (2019) 265 CLR 164.
The appellant should pay the respondent’s costs in the sum of $13,635.82 within 14 days.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Baumann & Christie. Associate:
Dated: 30 June 2022
12
0