M & S and Ors

[2006] FamCA 259

[2006] FamCA 259

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT SYDNEY  Appeal No. EA10 of 2005

File No. NCF916 of 2002

IN THE MATTER OF:  M

Appellant Husband

AND:  S

Respondent Wife

AND:  M and M

2^nd and 3^rd Respondents

CORAM:  BRYANT CJ, FAULKS DCJ AND WARNICK J

DATE OF HEARING:  24 OCTOBER 2005

DATE OF JUDGMENT:  30 MARCH 2006

JUDGMENT OF THE FULL COURT

Appearances:             The appellant husband appeared in person

The respondent wife appeared in person

The second respondent appeared in person

Sophia Mensch (next friend) instructed by Barbara Barrick & Associates, Level 4, T&G Building, 45 Hunter Street, Newcastle, NSW, 2300 appeared on behalf of 3^rd respondent

Name of Appeal	M and S and M
Appeal Number	EA10 of 2005
Date of Appeal Hearing	24 October 2005
Date of Judgment	30 March 2006
Coram	Bryant CJ, Faulks DCJ & Warnick J

Catchwords: APPEALS – FROM DECISION OF FAMILY COURT JUDGE – PRACTICE AND PROCEDURE – ADJOURNMENT – In property settlement proceedings the husband sought to set aside a transfer of real property by a bona fide vendor to the wife as life tenant with the two daughters of the marriage entitled in remainder – At the outset of the trial there was discussion about defects in the form of orders sought by the husband pursuant to s.106B. However the trial proceeded to the completion of the husband’s case – On the fifth day of trial when the wife’s case was about to start and all agreed the trial could not be finished that day, the husband indicated a desire to obtain legal advice before amending the form of orders to set aside the property. Counsel for the wife and counsel for the daughters urged the dismissal of the application under s.106B – The trial Judge dismissed the husband’s application to set aside the transfer – Held that the course of events at trial constituted an unfairness to the husband.

Appeal allowed. Orders 1 to 3 of the orders of Stevenson J made 25 May 2004 set aside. The application of the husband filed 7 October 2005 and the response of the wife filed 17 October 2005 dismissed. Costs certificates granted to each of the parties.

BRYANT CJ and WARNICK J:

1. At the outset of a trial for property settlement there was discussion between the trial Judge Stevenson J, the husband, who was not legally represented, counsel for the wife and counsel for the two daughters of the husband and wife. The discussion was about the clearly inadequate form of the application by the husband pursuant to section 106B of the Family Law Act 1975, as amended, that a transfer be set aside. The property transferred was held by the wife as life tenant and the two daughters (A and C), were entitled in remainder.

2. Following the discussion, the trial proceeded and some four days were taken up with cross-examination of the husband and his witnesses. At the end of the husband’s case, the issue of the form of his application was again raised and discussed on the afternoon of the fourth day and the morning of the fifth day. During the later discussions, counsel for the wife and counsel for the daughters both altered positions as to what each sought in respect of the husband’s section 106B application (paragraph 2 of his application) but ultimately the following orders were made:

   “1.    That Paragraph 2 of the Amended Application of the husband filed on 14 February 2003 be dismissed.

   2.     That leave be granted to the husband to relist the balance of his Amended Application filed on 14 February 2003 within 28 days of today’s date.

   3.     In the event that the husband fails to relist the balance of his Amended Application filed 14 February 2003 within 28 days of today’s date, the balance of that application stands dismissed.”

3. (The “balance” of the application essentially comprised the husband’s application for property settlement)

4. Against the above orders, the husband has appealed.

5. At the hearing of the appeal, the husband, the wife and A appeared without legal representation and Ms M appeared unrepresented, as next friend for C.

6. Essentially the appeal was on two bases.

7. Firstly, that given the course of events at the trial, the dismissal of the husband’s application, in the context that the hearing could not be completed on the fifth day in any event and an adjournment seemed necessary, constituted an unfairness to the husband.

8. Secondly, that her Honour Stevenson J mistakenly found that the husband had received advices from Mullane J fifteen months before the trial, to the effect that the application with which the husband presented at trial was faulty.

9. We will return to a discussion of the arguments on appeal following:

   ·   dealing with a short miscellany of matters of a preliminary nature

   ·   a short background

   ·   discussion at some length of the course of events at trial (as this is critical to the husband’s primary argument) and

   ·   summary of the reasons of the trial Judge

10. Finally, we will discuss the consequences of our conclusion in respect of the appeal.

Matters of a preliminary nature

1. One of the procedural orders made in respect of this appeal included provisions indicating that the husband was in fact seeking leave to appeal the orders in question. We do not think it a matter in which leave was necessary, certainly in so far as the dismissal of the husband’s application pursuant to section 106B was concerned. In so far as orders 2 and 3 of the orders appealed may appear interlocutory in nature, they are interdependent with the order dismissing the husband’s application pursuant to section 106B and will be rendered inappropriate if the appeal against that order succeeds.

2. The husband placed before the court an application which in part related to matters that might arise if the appeal succeeded and in part to the adduction of further evidence possibly in support of the appeal.  Ultimately, the respondents to the appeal agreed that certain transcript be before the Court, as well as a letter sent by a Mr F, solicitor for the wife to the Gosford Court on 15 December 2002 and a statutory declaration signed by the husband on 24 May 2004.  The receipt of the balance of the evidence the subject of the application was either not pressed by the husband or was refused.

3. A response was filed by the wife seeking that the husband’s appeal be dismissed and seeking consequential orders, including declarations as to the ownership of the property in question, costs of the proceedings before the trial Judge and removal of caveats over the property.  These inappropriate applications were not the subject of submissions.

Short background

1. Because of the circumstances in which the orders appealed were made, there are no findings of fact relating to the foundation of the husband’s application pursuant to section 106B. However, simply to give context to the following discussion, we record the following from the material in the appeal books.

2. The parties married in 1984. A was born in May 1985 and C born in March 1988. The first transaction to which the application of the husband pursuant to section 106B was directed, namely, the acquisition of land upon which was a cabin, for $146,000, took place in about September 1996. Counsel for the wife informed the trial Judge that there did not appear to be any contention that the purchase price was paid from resources of the wife.

3. The property was subsequently significantly improved, in particular by the construction of a residence.  Counsel for the wife also informed the trial Judge that the value of the property at trial was $450,000.

4. It is apparent from documents filed on behalf of the wife that there is much dispute about significant aspects of the husband’s evidence but for present purposes, namely discussion of an application by the husband to, in effect, set aside aspects of the transactions which resulted in the present ownership of the property, it is sufficient to identify the evidence of the husband.

5. In an affidavit of the husband filed on 19 April 2002 he informed the court that he was closely involved in the purchase of the property but:

   “20.  …was not aware of the fact that [the wife] arranged to put the property into her name only and not to include me on the title deeds.  Nor was I aware that she had created a life Trust for herself and then to her children.

   21.     As far as I was aware this was to be our matrimonial home and [the wife] and I set about designing a new house.

   …

   23.     This was in 1996 and as far as I was concerned we had been living together as a family unit since our marriage.…”

6. Later in the same affidavit the husband recounted how, following an incident on 11 December 1999, he moved out of the house but that he continued to visit and stay overnight with the wife and that:

   “30.  …The arrangement was to my mind more economically based because [the wife] thought that we could acquire more money if we lived separately than together.  We continued to sleep together up until September 2001.”

Course of events at trial

1. Claims of the parties

1. The orders sought by each of the parties at the outset of the trial were set out by Stevenson J in her reasons. In the course of so doing, she identified the primary order sought by the husband pursuant to section 106B, in his amended application filed 14 February 2003, as follows:

   “2) That the transfer of a remainder interest to each of the children in “the home” be set aside pursuant to section 106B of the Family Law Act.”

2. The husband also sought consequent orders that “the home” be sold and the proceeds of sale divided one-third each to himself, to the wife and to the children together.

3. Interestingly, the husband also sought, in paragraph 8:

   “In the alternative that each of the children be declared to hold their interest in the home on trust for the husband.”

   This paragraph received little if any attention at the trial.

4. The wife sought the dismissal of the husband’s application in all respects.

5. Each of the children sought orders that the husband’s claims as they affected them, be dismissed and that the husband pay arrears of and future maintenance, for them.

1. The initial discussion of the husband’s section 106B application

1. At the commencement of the trial, her Honour asked counsel for the wife and counsel for the children if they wished:

   “…to raise this jurisdictional issue as a preliminary matter or shall we simply proceed to deal with the evidence?”

2. Counsel for the wife, Mr H, then raised the proposition that:

   “There doesn’t appear to be any suggestion and I don’t think the husband raises this as an issue, that the person from who [sic] she purchase it, person or persons, was related to the wife or had any part of an arrangement whereby that person wasn’t a bone fide vendor, I suppose the word would be.  So, that property was purchased.  At that time there was a cabin and since then, of course, according to the wife and I don’t think it’s disputed by the husband, there have been significant improvements done to the property and there doesn’t appear to be any suggestion that the purchase price of $146,000 or the costs of improvement were not paid from the resources of the wife, being money that she had received from superannuation, redundancy and proceeds of sale of her other property.”

3. After referring to some other aspects, Mr H raised the issue that the vendor was a person interested, but had not been joined as a party and he said further:

   “Of course, it would also involve, in my submission, by inference, there perhaps be some setting aside of transactions between the wife and various builders, contractors and the like, who performed significant improvements on the property being paid for by the money that the wife had received which was matrimonial money and went to them.

   Now, your Honour, the only argument might be that is it a disposition or transfer to defeat a claim, a notional transfer of money between the wife and the children because in effect, and I don’t think there is any argument about this, that the wife used her money firstly to acquire the property and therefore the children were the purchases [sic] and therefore it could be argued, I suppose that she transferred money to the children notionally which went to the vendor…”

4. Her Honour then said:

   “Yes, that’s what I think, […].  The transaction – if there is a transaction to be set aside it is not the transfer from the vendors, it is the gift from the wife to the children.”

5. For the children, Mr B said that counsel for the wife had encapsulated what he was going to put, but he added:

   “…But your Honour will look at the applicant’s application and he seeks that the transfer of the remainder interest to each of the children in the home be set aside.  Firstly, that requires amendment if your Honour were to adopt the view that in fact what might be set aside is the notional transfer of money, I suppose, by way of gift from the wife to the children.

   If your Honour was of the view that section 106B permits that to occur then your Honour would have to look at the further parts of that section relating to the intention to defeat – or the likelihood of defeating an existing order, but your Honour, that’s a matter for evidence later in the proceedings, probably a matter for submissions at a later stage.

   I suppose, your Honour, I’d have to concede that the issue of the accrued jurisdiction is something that would have to be left to a later stage, when your Honour hears the evidence as to what the parties have done and what they intended to do, et cetera, before your Honour can decide whether this is just a single justiciable issue or not.”

6. The following exchange then occurred:

   “HER HONOUR:            [Mr B], what would you say if I set aside this gift, if I would do that what would you say the resulting situation as to ownership of the property would be.

   [MR B]:  Well, then your Honour, it’s a matter for your Honour to decide on the evidence whether there is any evidence as to a constructive trust, and for your Honour to decide that your Honour has got to be satisfied that your Honour has jurisdiction to make such a declaratory order.  Your Honour has to make a determination as to the legal ownership of the property at that point.

   HER HONOUR:  That’s right. Yes.

   [MR B]:  If your Honour decides to set aside the gift.  That involves your Honour in determining whether there is jurisdiction for your Honour to do that.  But I suppose your Honour would have to concede that’s not a threshold issue.…”

7. In the afternoon, Stevenson J returned and ruled upon the issue that had been raised before her.  She said:

   “…I have considered this preliminary issue and I am of the view that I have jurisdiction to proceed.  I am not going to give detailed reasons at this point…for the present purpose suffice it to say that I am of the view that what I am being asked and what I can set aside is one or both of two things. 

   Firstly, the gift of either the purchase price or the gift of a legal estate in the real estate from the wife to the parties’ daughters.  It may also be, depending on how the evidence unfolds, it seems to me that I may be properly asked to set aside a direction by the wife to the vendor of the property to constitute the daughters, the registered proprietors.  In order to determine the situation it seems to me that I will require the source documents…”

1. The trial progressed

1. The trial then proceeded through cross-examination of the husband and his witnesses, until the end of his case late in the evening of 20 May 2004.

1. The issue of the husband’s application under section 106B revisited

1. Following the close of the husband’s case, her Honour called on counsel for the wife, who said:

   “Yes, your Honour.  Before that, if your Honour pleases, we’re not sure, your Honour, what the husband’s position is.  It seems that on the face of it his application under section 106B is an application that can’t succeed, and your Honour has come to the conclusion as far as the merits of some applications, but we say we don’t know what we’re meeting as yet, …”

2. Not long after, counsel for the children said:

   “…your Honour, that it would seem that the husband should be called upon to elect as to whether he now intends to proceed on his application, as drafted, in particular in relation to order 2, or whether he seeks to amend that application.

   “[MR B]:  Your Honour did intimate some certain aspects of what disposition might have been.…

   HER HONOUR:  Yes.  I think as far as I – well, all I intended to do was say that a possible case existed, I didn’t say that I thought there was a good case or a bad case or any different case.

   [MR B]:  No, your Honour.  My submission would be that on the present state of the evidence the husband can’t succeed on the order as drafted, as framed, and he needs to be called upon to elect as to whether he does intend to proceed on that application, on that order as drafted, or whether he wished to amend, at least at this point, before the wife’s case and the intervenor’s case commenced.

   HER HONOUR:  I think that’s a reasonable submission [Mr B].  I will give [the husband] overnight to think about it.”

3. Later in response to some further questions by Stevenson J, Mr B said:

   “…he either needs to elect simply that he is proposing to proceed on order 2, as presently drafted in his application, filed 14 February 2003, or whether he wishes to amend that order sought so it relates to either…

   HER HONOUR: …Either of the two dispositions I indicated in my…

   …

   [MR B]:  Either the disposition of the funds by the wife for the purposes of the purchase and the subsequent funds that were probably paid in relation to the improvements.

   HER HONOUR:  Yes.  Or the disposition of the legal interest.”

4. Her Honour then said:

   “…in the event that [the husband] comes back tomorrow morning and tells me that he intends to make application to amend, what do you anticipate that your attitude will be?

   [MR B]:  Well, I’ll have to deal with that when it’s made, your Honour. I think to be candid, if it’s an application to amend on the basis that he’s going to rely on the disposition of funds or perhaps a direction to the vendor to place the legal estate and remainder to the children we’re not caught by surprise.  I won’t oppose it on that basis.”

5. There was then some discussion between the trial Judge and Mr B about the ineffectiveness and “nullity” of any order made in terms of paragraph 2 of the husband’s application.  The trial Judge then said:

   “Now, just before I do adjourn, assuming that we do proceed tomorrow, as I’ve said I’m not going to proceed beyond tomorrow.…I want to work out a rough trial plan now in the event that we proceed tomorrow and thereafter.…”

6. The next day opened with some discussion about the likely course of the day, counsel for the wife indicating that he had had some discussion with the husband outside court about interposing some witnesses, the husband indicating that he would be likely to cross-examine the wife for the whole day and having certain reasons for not agreeing to the interposition.  Her Honour asked if there was:

   “…absolutely no prospect that the matter can be finalised today, is there?”

   to which counsel for the wife responded that there was no prospect.

7. Shortly after, her Honour turned to the husband to ask about his position and he said that he had thought about it overnight and he actually had to get some legal person “to make sure I’ve got the right application in”.  He then spoke about the difficulty of preparing his case, in particular cross-examination, and said:

   “…So I was going to ask for two things this morning, your Honour.  Obviously to seek leave to put in an amended application, and make sure it’s the right one, and also is it possible for me to have any transcripts…”

8. Shortly after, both counsel involved indicated that they did not oppose the application for leave to amend the application, counsel for the children saying:

   “…I suppose pragmatically I’m not going to be in a position to make any application or any submission in relation to the 106B until at least after the wife’s case.  It’s not……………  That ought to give [the husband] some time to get some advice and come back when this matter resumes with an appropriate amended application.

   HER HONOUR:  Well, there’s no reason why [the wife’s] evidence can’t be given before the amended application is filed, is there?

   [MR B]:  No, I don’t think I’m prejudiced in that respect, your Honour.

   HER HONOUR:  What do you say, [Mr H]?

   [MR H]:  Well, your Honour, obviously it would be important that we know what we’re meeting your Honour but I accept that – I have an idea what he would need to do, your Honour, so I can’t say that I’d be prejudiced when I saw it.”

1. A change of tack

1. The questions of whether the relevance of evidence could be determined without the precise application made by the husband and whether an amended application might require further cross-examination of the husband were then discussed.  During this exchange, counsel for the wife obviously received instructions, as a result of which he said:

   “…my instructions now are to ask that his application be struck out if it’s not a proper application because the wife would be.…”

2. Her Honour interposed:

   “I’m not going to do that.”

3. Notwithstanding that discouragement, counsel for the wife then addressed her Honour in support of his new position, pointing out that the trial was in its fifth day and the husband’s application remained unformulated, which was not a position which would be permitted if he was legally represented.  Counsel made submissions to the effect that the husband could have secured legal representation had he so chosen and that the wife was prejudiced in the circumstances.  The husband interjected, leading the trial Judge to say:

   “…it still remains your choice to try and conduct a very difficult piece of litigation unrepresented.  You’ve got to accept the consequences of that.”

4. Stevenson J in the course of further discussion said to the husband:

   “You now say that in effect what you’re asking me to do is give you an adjournment so that you can go off now at this point and get legal advice.”

5. Her Honour then asked counsel for the children what he said about an application “to strike out the amended application at this stage…” and counsel for the children said that he also made that application.  Her Honour then said:

   “Well you say that the applicant has been on clear notice for months”

   and counsel for the children replied that they were his instructions.  Indeed he said:

   “…my instructions are that on each occasion he was before the Court he was advised as to the complexity of the litigation, that he needed advice, he needed to formulate his position; he hasn’t done so.  We’ve been here five days and we still don’t know the case we are to meet.”

6. Her Honour then informed the husband that he was faced with an application for the dismissal of his application and that she would give him half an hour to consider that application.

7. Shortly after resumption, her Honour then invited each counsel to restate the grounds in support of their applications.

8. Mr H reviewed his arguments, during which he reported his instructions that the matter had been case managed before Mullane J and that his Honour had made comments about the difficulty the husband might have with his application of 14 February 2003.  He referred to the possibility of further time wasted because of the adjournment.  In particular, he pointed out that as, on the wife’s case, the husband would receive no property settlement and that on his own evidence, he was anyway in a poor financial position, an order for costs was unlikely to be met.  Mr H concluded by saying that the application did not show a cause of action and he referred to the emotional toll of the proceedings on the parties.

9. Mr B, for the children, adopted Mr H’s submissions “in total”.  He repeated the impossibility of the husband succeeding on his application as contained in paragraph 2 of his amended application filed 14 February 2003, pointed out that the deficiency had been brought to the attention of the husband at the outset of the proceedings, since which time the husband could have presented an amended application, asserted that the children were still unaware precisely of the case they were to meet and that that could amount ultimately to a denial of procedural fairness to them, before he also referred to the emotional toll, in particular, upon A.

10. When he responded, apparently in response to the suggestions that he “chose” to be unrepresented, the husband pointed out that his first wife, GM, was not in fact a continuing source of funding to him for litigation, though she had lent him $40,000 in relation to other proceedings “…purely and simply to keep me out of gaol…”

11. The husband confirmed to the trial Judge that Mullane J had told him his application would fail but the husband said that that was before he, the husband, put in the amended application.  The amended application was prepared upon legal advice.  He had been in court every day since the beginning of the trial when the matter of his application was raised and had not had time to seek further advice.

1. The ruling

1. Her Honour then ruled on the application that the husband’s application be dismissed.

2. Initially, she simply dismissed the husband’s application filed 14 February 2003 in its entirety.  She indicated that she proposed to give detailed reasons later.

3. Later in the day, counsel for the wife and counsel for the children, at their request, appeared again before her Honour to indicate that they thought that all that should have been dismissed was the section 106B application and not the application for property settlement, which could not be dismissed at least without consideration of the justice and equity of that result and after hearing submissions about it. This further appearance (to which the husband had also been invited though he did not attend) resulted in the orders set out at the commencement of these reasons, dismissing only the section 106B application and providing a mechanism for the husband to continue with his property application.

4. It seems apparent that this position was not acceptable to the husband and rather than proceed with the circumscribed application, he chose to appeal all the orders made.

The reasons of the trial Judge

1. The orders that her Honour pronounced were not issued until 25 May 2004, upon which day her Honour also gave her reasons.  After setting out the claims of the parties, her Honour referred to the “preliminary issue” that had been raised, as follows:

   “5.    A preliminary issue was raised by counsel for the respondents as to whether I had jurisdiction pursuant to section 106B to entertain [Mr M’s] application.  I indicated, after having considered the matter, that I was of the view that I did have jurisdiction and that it seemed to me that there were two potential dispositions which I might ultimately set aside, subject to the evidence.  It seemed to me that the two transactions which may attract the operation of section 106B were as follows:

   1)A direction by [the wife] to the vendor to constitute the parties’ daughters the legal owners of the property, subject to her life estate.

   2)A gift by the wife to the daughters of a legal estate in the property, subject to her life tenancy.

   I expressed no view as to the merits of any such application.

   6.     It was suggested by counsel that it may be that another potential disposition, that being a gift of the purchase monies by [the wife] to the two daughters.  Again, I expressed no view at all as to the merits of [the father’s] application pursuant to section 106B.  I was concerned only with the issue of jurisdiction at that stage.”

2. Her Honour then recounted events on the afternoon of the fourth day and the morning of the fifth day and in so doing, she said:

   “9)    [The husband] then indicated that he sought an adjournment for the purpose of seeking legal advice in order to amend his application.…

   10)    …

   ·…I was advised by counsel, and I accept, that the husband has previously been informed by Justice Mullane of the difficulty and complexity of the case which he seeks to present.  I am informed further, and I accept, that His Honour advised the husband that he should seek legal advice.  He has thus been on notice for a considerable time of the difficulties in his case.”

3. Her Honour said:

   “…It is incumbent upon the applicant to frame an application in terms which could result in valid and operative orders.  It is not for the respondents nor for the Court to take on that task for him.”

4. She also said:

   “15.  …[The husband] chose to have legal representation at that time but then opted to conduct his own case.  The first and second respondents were required to pay their legal costs and would be prejudiced financially by any lengthening of the proceedings.  The only reason for an adjournment would be to give the husband yet another opportunity to cure the defects in his case, at the expense of the respondents.

   16.    I was persuaded that there would be considerable prejudice to the respondents in the event that the matter were adjourned to enable [the husband] to seek further legal advice.  Had I permitted the matter to proceed to the point of cross-examination by [the husband] of the respondents and their witnesses, the situation with regard to the orders, which he sought would not have become any clearer.  For these reasons I made an order dismissing [the husband’s] amended application filed on 14 February 2003.”

5. Her Honour then recorded the appearance before her by counsel for the parties, other than the husband, and explained the subsequent limitation of the dismissal to the claim under section 106B.

Grounds of appeal

1. The Amended Notice of Appeal filed 13 January 2005 contained 43 paragraphs, each of which was couched as if asserting a separate error on the part of the trial Judge, though a number seem unlikely grounds of appeal.  The summary of argument indicated that grounds 10, 21, 22, 23 and 24 were abandoned but the summary nonetheless extended to 43 pages.  On the last working day before the hearing of the appeal, the husband faxed to the court a “synopsis” of one page, which much more succinctly raised the points that have been distilled and described at the outset of these reasons.

2. It is those points that we intend to address. As to the issue of whether the course of events leading to the dismissal of his application under section 106B amounted to an unfairness to the husband with which this court ought interfere, we deduce from the description of the course of events at trial and the summary of the reasons for the trial Judge which we have set out, the following conclusions.

   (i)Notwithstanding that the order sought in paragraph 2 of the husband’s application was defective, it is a necessary inference from the completion of cross-examination over four days by each counsel opposing, that his claim under section 106B was sufficiently formulated in discussion at the outset of the trial (and described in paragraph 5 of Stevenson J’s reasons) for the purposes of all parties, at least of putting their cases about the issues, to the husband.

   (ii)Given that, there are no obvious reasons why the husband’s claim was not also sufficiently formulated for the purposes of presentation of and cross-examination about, the wife’s case and that of the children.

   (iii)Counsel for the wife and counsel for the children effectively conceded points (i) and (ii) above, during discussions at the end of the fourth day.

   (iv)The nature of the husband’s application under section 106B, relating as it did to a transaction of which he was not part, was always such that its success much depended on facts likely to be within the knowledge of the wife and the children and only available to the husband (if not through interlocutory steps), through cross-examination of the wife and, possibly, the children.

   (v)If written amendment of the husband’s claim, as was anticipated, merely formalised the informal identification of that claim, further cross-examination of the husband was not likely to be necessary.  If some new facet was raised, then that was the time to consider issues of lateness, delay and cost that the new point might occasion.

   (vi)Insofar as the husband sought time to amend his claim with the assistance of legal advice, that request was made in the context that he was ready to proceed with cross-examination of the wife on the fifth day, after which the trial was to be adjourned in any event.  Consequently, only if it was necessary for any amendment to be presented before commencement of the wife’s case was the husband’s request likely to cause delay, and then only the loss of the day upon which the request was made.  We have already expressed the view that there were no obvious reasons as to why the husband needed to formally amend before the wife’s case commenced.

3. For the above reasons, we consider that in dismissing the husband’s application under section 106B, not formalised though it was, the trial Judge was in error and the appeal must be allowed.

4. As to the second point argued on appeal, though it is not now necessary to determine it, we express concern that, in the course of considering the application for dismissal of the husband’s claim, her Honour drew conclusions of fact in an unsatisfactory manner.  Statements were made to her Honour, from the bar table, on instructions, about advice that was said to have been given to the husband about his claim in a general sense and about paragraph 2 of his amended application in particular.  These matters were not the subject of evidence as such.  The husband stated his contrary version.  On the material before this Court, there seems at least a likelihood that the instructions conveyed to the court by counsel for the wife and counsel for the children were inaccurate.

5. Further, the question of the circumstances of the husband’s “choice” to appear at the trial unrepresented also seems to be one in respect of which a conclusion was arrived at on a less than satisfactory basis.  The way in which the matter of choice was referred to by the trial Judge carries the implication that there were no impediments to the husband having legal representation if he wished.  Again, this was not a matter explored in the usual course of evidence.

Consequences of the appeal being allowed

1. We are mindful that the wife and the children urge upon this court any course which will avoid further proceedings.

2. However, having regard to the position that the claim of the husband pursuant to section 106B was never determined on its merits, it is of course impossible for this court to resolve those claims by a re-exercise of discretion. The trial must continue.

3. Of course, what was proceeding to trial was not the application in paragraph 2 of the husband’s application, which could have been readily dismissed, as it was clearly bad in form, but rather the informal characterisation of the husband’s case under section 106B. Nonetheless, we think that the best course is to allow the appeal and set aside the orders made 24 May 2005, with the result that the husband’s application as it stood, is part heard before Stevenson J. No doubt her Honour will arrange to mention the matter for discussion about its future. What is then done about the further formulation of the husband’s claim can be reconsidered, in the light of the success of this appeal for the reasons given and of the positions taken by each party at the time.

Costs

1. Each party requested in the event of success of the appeal, a certificate pursuant to the Federal Proceedings (Costs) Act 1981. Though no party was legally represented on the appeal, there may be costs recoverable in respect of the appeal, in particular, for the husband, the cost of transcript. We think it a proper case for the grant of certificates in respect of the appeal.

2. In so far as the husband in his application filed 7 October 2005 sought a costs certificate in respect of a rehearing, what will follow may be a resumption of a hearing, not a rehearing.  Further, as the husband was unrepresented in the first part of the trial, we think it inappropriate that such a certificate be granted, assuming it is within power to do so.

FAULKS DCJ

1. I agree with the conclusions reached by their Honours and although I would have expressed my reasons for doing so somewhat differently I do not consider that it serves any useful purpose for me to set out those reasons.

ORDERS

1. We propose the following orders.

   1.That the appeal be allowed.

   2.That orders 1 to 3 inclusive of the orders of Stevenson J made 25 May 2004 be set aside.

   3.That, save for the admission of further evidence by consent, and save in so far as the request to adduce further evidence has been already refused, the application of the husband filed 7 October 2005 be dismissed.

   4.That the response of the wife filed 17 October 2005 be dismissed.

   5.That the court grants to the appellant husband a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.

   6.That the court grants to the respondent wife and the 2nd and 3rd respondents a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife and the 2nd and 3rd respondents in respect of the costs incurred by the respondent wife and the 2nd and 3rd respondents in relation to the appeal.

I certify that the 72 preceding
 Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:  ………………

Associate