Langton & Langton
[2008] FamCAFC 163
•20 October 2008
FAMILY COURT OF AUSTRALIA
| LANGTON & LANGTON | [2008] FamCAFC 163 |
| FAMILY LAW – APPEAL – Appeal against final property orders made in the absence of the appellant - Appellant unrepresented - Appellant telephoned the solicitor for the respondent on several occasions - Solicitor for the respondent failed to reveal this to the Federal Magistrate. FAMILY LAW – Appeal allowed and remitted for rehearing. FAMILY LAW - COSTS – Respondent’s solicitors to pay the costs of the appellant relating to the preparation of the appeal. |
| Taylor v Taylor (1979) FLC 90-674 |
| APPLICANT: | MRS LANGTON |
| RESPONDENT: | MR LANGTON |
| FILE NUMBER: | BRC | 1215 | of | 2008 |
| APPEAL NUMBER: | NA | 40 | of | 2008 |
| DATE DELIVERED: | 20 October 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 20 October 2008 |
REPRESENTATION
| APPELLANT: | Mrs Langton appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Ms Chappel |
Orders
That the appeal be allowed.
That the orders made by the Honourable Federal Magistrate Burnett on 25 March 2008 be set aside.
That the matter be remitted for rehearing before Federal Magistrate Burnett or any other Federal Magistrate as the Chief Federal Magistrate deems appropriate.
That the respondent’s solicitor pay the costs of the appellant fixed at $200 within twenty-eight (28) days of today.
IT IS NOTED that publication of this judgment under the pseudonym Langton & Langton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA40 of 2008
File Number: BRC1215 of 2008
| MRS LANGTON |
Applicant
And
| MR LANGTON |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
A Notice of Appeal was filed by the wife on 21 April 2008 against orders made by Federal Magistrate Burnett on 25 March 2008. The order made by the Federal Magistrate was by way of final order,
1.That each of the Applicant and Respondent retain those chattels of which they stand possessed as at the date of these orders and they each assume responsibility for any liability personally due as at the date of these orders.
The Federal Magistrate made that order in the absence of the appellant wife and on the application of Mr Lander, solicitor, who appeared then for the applicant.
Unfortunately, Mr Lander has not appeared today which might have been helpful but instead a solicitor from the same firm, Ms Chappel appears. She tells me that her instructions are to neither consent nor oppose the appeal.
I have the transcript of the hearing before the Federal Magistrate on 25 March. After some enquiries made by the Federal Magistrate, it was said by Mr Lander:
"And I've obviously received no response or any word from the-".
This was during a discussion about the absence of the appellant.
The Federal Magistrate then asked this question:
"So she hasn't sought to engage in the proceeding at all."
Mr Lander: "No, your Honour. Initially, your Honour, we were seeking interim orders in relation to discovery but my client has given me instructions today that he is prepared to withdraw that particular aspect of his application and just seek orders today that stipulate that the parties retain whatever property they have in their possession and control as well as any debts and just end the matter once and for all".
Unsurprisingly, based on what the solicitor said to the Federal Magistrate, he made the orders.
It is, no doubt, correct that the wife had not filed documents as directed by the Court. Her reason for this is that she had two conversations with the solicitor. The first one was in January before the application for property settlement was filed. It is agreed by the solicitor who appears today on behalf of the firm that that conversation did take place, the proceedings were served subsequently late in February.
Mrs Langton tells me that after she received the documents, she had some medical problems and she rang and telephoned the firm of solicitors. She said that she wanted a mediation and she thought the solicitor had agreed. On another occasion the appellant says she rang the firm and asked what was happening in relation to the matter.
It is said, on Mr Landers' behalf, that he had actually forgotten about this conversation and that was why he did not mention it to the Federal Magistrate. That may or may not be correct. In any event, the appellant now asks that the matter be remitted for rehearing so that there can be a hearing on the evidence.
It is obvious that orders may always be set aside when there has been a mistake by the Judge leading to a denial of justice. In this case, there were two. The first was that the Federal Magistrate was misled into thinking that there was no reason for the failure of the wife to appear and, secondly, it seems based on the material placed before me by Mrs Langton, he completely misunderstood the size of the estate of the parties including their liabilities.
The one question that concerns me is whether a proper application by the wife in this case is that the orders be set aside on appeal. The circumstances of this case are reminiscent of what the High Court of Australia said in Taylor v Taylor (1979) FLC 90-674 that there is an inherent power in the Family Court distinct from s 79A to set aside orders made when one party is not heard even if made after service.
Each member of that Court stressed the fundamental importance of the principle that parties to litigation are entitled to be heard. In this case, there hardly needs to be anything said further.
Costs
At the end of this matter Mrs Langton asked for costs in the sum of $200 representing largely photocopying expenses in the preparation of this appeal. She has been entirely successful. I asked the solicitor for the respondent if she had any response to an order being made against them. It seems, at least to me, that it is most unfortunate that the solicitors did not immediately agree to the appeal being allowed which would have saved Mrs Langton, no doubt, all this time and trouble.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May.
Associate:
Date: 30 October 2008
0
0
1