Malak & Malak
[2016] FamCAFC 114
•29 June 2016
FAMILY COURT OF AUSTRALIA
| MALAK & MALAK | [2016] FamCAFC 114 |
| FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – BIAS – PREJUDGMENT – Where the appellant alleged the primary judge’s decision to dismiss his application under r 16.05 of the Federal Magistrates Court Rules 2001 (Cth) to vary or set aside parenting and property enforcement orders made in his absence was attended by prejudgment, bias and a lack of procedural fairness – Where the Full Court so found – Where the Full Court re-determined the appellant’s application brought pursuant to r 16.05 – Where the appellant failed to demonstrate an arguable case for orders different to those made in his absence – Where the Full Court held the appellant had not otherwise satisfied the criteria under r 16.05 that would lead to a varying or setting aside of the orders made in his absence – Balance of appeal therefore dismissed – Respondent’s application for costs dismissed. |
| Family Law Act 1975 (Cth): ss 4AB(2)(b), 60CA, 60CC(2), 60CC(2A), 60CC(3), 65DAA, 72, 79A Trustee Act 1925 (NSW): s 95 Federal Magistrates Court Rules 2001 (Cth): r 16.05 |
| Allesch v Maunz (2000) 203 CLR 172 Barbey & Tuttle (2013) FLC 93-534 Maxwell-Smith v Donnelly [2012] FCA 154 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Nicholson v Nicholson [1974] 2 NSWLR 59 Registrar of Aboriginal Corporations v Murnkurni Women’s Aboriginal Corporation(in liq) (1995) 58 FCR 125 Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Mr Malak |
| RESPONDENT: | Ms Malak |
| FILE NUMBER: | SYC | 69 | of | 2011 |
| APPEAL NUMBER: | EA | 24 | of | 2013 |
| DATE DELIVERED: | 29 June 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ryan and Kent JJ |
| HEARING DATE: | 13 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 January 2013 |
| LOWER COURT MNC: | [2013] FCCA 386 |
REPRESENTATION
| THE APPELLANT: | In person by telephone |
| COUNSEL FOR THE RESPONDENT: | Mr Sperling |
| SOLICITOR FOR THE RESPONDENT: | Rachel Stubbs & Associates |
Orders
The appeal be allowed in part.
Order 1 dated 31 January 2013 be varied by omitting the words “By consent”.
The appeal be otherwise dismissed.
The mother’s application for costs be dismissed.
IT IS DIRECTED that the Eastern Appeal Registrar of the Family Court of Australia provide to the Registrar of the Supreme Court of New South Wales, Equity Division, a copy of the orders made in this appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malak & Malak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 24 of 2013
File Number: SYC 69 of 2011
| Mr Malak |
Appellant
And
| Ms Malak |
Respondent
REASONS FOR JUDGMENT
This is an appeal by Mr Malak (“the father”) against an order made by Federal Magistrate Foster (as his Honour then was) on 31 January 2013 dismissing his application to vary or set aside parenting orders and orders for the enforcement of other property orders that were made in his absence on 29 June 2012. We observe at the outset there is no appeal against the substantive property orders or against the orders made on 29 June 2012.
The orders made on 29 June 2012 provided for, Ms Malak (“the mother”) to have sole parental responsibility for the parties’ child, K, and for the father to be restrained from approaching or contacting the child by any means whatsoever. Orders were also made to release $30,524.80 from the Supreme Court of New South Wales to the mother.
It is common ground that the orders made on 29 June 2012 were made in the absence of the father. In the orders, provision was made for him to make an application to vary or set aside the orders pursuant to r 16.05 of the Federal Magistrates Court Rules 2001 (Cth) (now Federal Circuit Court)(“the Rules”).
It is unusual that a child’s best interests dictate that parenting orders be made restraining a parent from having any contact (or information) whatsoever with that child. However, it needs to be understood that the father is currently serving an 18 year prison term for multiple counts of sexual assault and other sexual abuse and pornography offences in relation to his three step-children and K. Those offences include the offence of sexual intercourse with a child under 10 (of K when she was two years of age). Having regard to:
· The nature and extent of the father’s offending and that a sentence of 18 years imprisonment was imposed to reflect the degree of the father’s criminality;
· That the father perpetrated these offences when in a familial position of trust vis-à-vis his child victims;
more profound infringement of children’s rights or greater abrogation of parental duty and responsibility are difficult to conceive. Moreover it follows that the father poses an extremely high risk to K’s physical, emotional and psychological wellbeing.
Background
The parties commenced a relationship in 2007. The mother has four children from a previous relationship: A, aged 16, L, aged 14 and B, aged 11 at the time of the hearing in June 2012. The mother’s fourth child was aged 18 at the time of the hearing. A and L mostly lived with their father and B resided equally with both the mother and their father.
In mid-2008, the parties’ child, K, was born.
In September 2009 the mother made a complaint to police about physical violence perpetrated on her by the father. In October 2010 L made a complaint that the father had used her in pornographic material.
The New South Wales Police subsequently seized computers and cameras from the parties’ former home and commenced an investigation. An apprehended violence order was obtained for the protection of L but not the other children.
The parties separated in October 2010, following which and by agreement K lived with each of them week about.
On 12 January 2011, the parties entered into consent orders (“the consent orders”) in relation to parenting and property which in summary provided:
a)The parties would have equal shared parental responsibility for K;
b)K was to live in a week about arrangement with the mother and father; and
c)The mother was to receive $40,000 as property settlement.
The consent orders were made without either party having disclosed the matters referred to in [7] and [8] above. Only the father knew he was abusing the children.
In May 2011, the mother received a phone call from the father’s then girlfriend, asking that she collect K. The child was picked up from a police station by the mother and she was informed by police that the father had been arrested for taking pornographic photographs of both K and L and had been classified as a paedophile. The father has been in custody since that time. The father has not had contact with K since then.
The father was subsequently charged on nine counts involving child sexual assault, using children to make child abuse material and possessing child abuse material as set out below:
·Count 1 alleged sexual intercourse with a child under 10;
·Count 2 alleged using a child under the age of 14 to make child abuse material;
·Count 3 alleged filming a child under the age of 16 to engage in a private act without their consent for the purpose of enabling another person to obtain sexual arousal or gratification;
·Count 4 alleged use of a child under the age of 14 to make child abuse material;
·Count 5 alleged an indecent assault on a child under the age of 16 whilst under the father’s authority;
·Count 6 alleged using a child under the age of 14 to make child abuse material;
·Count 7 alleged indecent assault upon a child under the age of 16 whilst under authority;
·Count 8 alleged possessing child abuse material;
·Count 9, on a second indictment, alleged possessing child abuse material.
As we mentioned earlier, the children involved in the offences were the parties’ child K, as well as three of the children from the mother’s previous relationship, A, L and B.
The father pleaded guilty to all charges and in January 2013 was sentenced in the District Court of New South Wales. He received an aggregate sentence of imprisonment for 18 years, with a non-parole period of 13 years with effect from May 2011. The father will not be eligible for parole until 2024.
The father appealed his sentence and his appeal was dismissed by the New South Wales Court of Criminal Appeal in December 2014.
In relation to K, the father pleaded guilty to sexual intercourse with her in Count 1, and Counts 2 and 5 also involved her. The New South Wales Court of Criminal Appeal described some of the images of abuse material on the father’s computer as being at the highest level on the scale categorising the severity of pornographic images.
In relation to K, the New South Wales Court of Criminal Appeal described the offences for which the father was convicted as follows:
10.There was a photograph taken at 7.59pm on 22 September 2010 showing the applicant’s 2 year old daughter in the bath with his hand on her genital area parting her labia. (First Form 1 – offences 3 (Use child under 14 to make child abuse material) and 4 (aggravated indecent assault)). (Another photograph showing the same thing but taken immediately before this one constituted the offences in counts 3 and 4).
11.There was a four-minute video file, the recording of which commenced five minutes later. It showed the applicant with the same daughter on a bed. She was naked and he was naked from the waist down. He approached her and performed cunnilingus for about a minute. He then lay on his back on the bed, placing her on his chest facing away from him and masturbated his penis while still performing cunnilingus upon her. At this point, the child’s face was close to his exposed penis. After a short period he wiped his penis with a towel and kissed her on the lips. He then turned the camera off.
12.The performance of cunnilingus upon the child constituted the offence in Count 1. Offences 1, 2 and 5 on the First Form 1 were offences arising from the same incident – Commit act of indecency upon a person under 16; Produce child abuse material; and Possess child abuse material.
Background to the present litigation
On 20 December 2010 the mother and the father each signed an application for consent orders which was filed in the Federal Magistrates Court. In support of the application both parties set out their assets and liabilities. Orders were made by consent on 12 January 2011. Although the proceedings were said to have been filed in the Federal Magistrates Court, the orders were made by the Family Court of Australia, but nothing turns on this.
The orders made included parenting orders and relevantly, in relation to property settlement, provided:
13.For [the mother] to receive the sum of $40,000 as property settlement within three 3 of date of sealed orders.
The financial information forming part of the consent orders application included the former matrimonial home and the liability to the mortgagee.
The genesis of the current proceedings was the mother’s initiating application filed 4 July 2011 and amended 2 April 2012 in which she sought by way of parenting orders:
·The child K live with her;
·She have sole parental responsibility for the long-term welfare and development of the child;
·The father be restrained from approaching or contacting the child by any means whatsoever;
·Orders to enable her to obtain a passport for the child.
In her amended application the mother sought, by way of enforcement, an order that the father do all things necessary to secure the release of the sum of $30,524.80 from the Supreme Court of New South Wales. By then the mortgagee had taken possession of the former matrimonial home, which was sold. This sum represents the funds remaining after the sale and which had been paid into court by the mortgagee.
This order was sought “by way of enforcement” and can thus be seen as an application to enforce the terms of the order for property settlement made on 12 January 2011.
The father filed a response to the mother’s application on 16 November 2011 (returnable on 6 December 2011) seeking property orders, anticipating sale of the former matrimonial home, as follows:
·The proceeds of sale be split as to 80 per cent to the father and 20 per cent to the mother;
·The mother to return household furniture and equipment, or pay the father $30,000 from her share of the proceeds of sale;
·All cash at banks and monies invested, including any vehicles, be calculated and added to the asset pool;
·Superannuation and any life entitlements held in either party’s name to be calculated and added to the asset pool;
·For all outstanding liabilities, debts, personal loans, tax debts, credit cards and charge accounts in either party’s name to be calculated and deducted from the asset pool.
Given the final order for property settlement made by consent, the only way the father could achieve such orders was pursuant to an application under s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside the previous order on one or more of the grounds provided for in that section. The father’s application did not seek the setting aside of the consent order nor did it address any of the grounds available for setting aside property settlement orders pursuant to s 79A. As we will shortly discuss, the father’s position was misconceived.
In his response, the father also applied for parenting orders on a final basis as follows:
1.The Department of Community Services have parental responsibility for the day to day care, welfare and development of the child, K.
2. That K be able to spend time and communicate with the father:
·Supervised for one hour each weekend.
3.The child spend time with named members of the father’s family each alternate weekend.
4.The mother keep the father advised in writing of the residential address of the child, the school attended by the child and a telephone number at which the child could be reached.
5.The father be at liberty to obtain at his expense a copy of the school report of the child and an order form for the child’s school photos.
6. Commencing in 2012 the father communicate with the child each Wednesday, Friday and Sunday between 12:00 pm and 2:00 pm.
7.The father be at liberty to send cards and small gifts to the child on her birthday and at Christmas and Easter.
8.The mother keep the father informed as soon as practicable if there is a medical emergency concerning the child.
9. The mother forward a sealed copy of these orders to the principal of each school the child will attend.
By then the father was remanded in custody in relation to the nine offences with which he was charged and thus the effect of his proposed orders was that K see him in gaol weekly and talk to him by telephone on three occasions each week.
On 7 March 2012, the matter came before the primary judge who made orders by consent and pending further order, that the mother have sole parental responsibility for K and that she live with the mother. Two further orders were made: the matter was adjourned to 29 June 2012 at 9:30 am for a directions hearing and the mother was ordered to file and serve any amended application sought to be relied upon by her by no later than Friday 30 March 2012 together with any affidavit.
The court noted that during the period of adjournment the mother would consider whether she would proceed by way of enforcement of the consent property order or seek other orders pursuant to s 79A of the Act. As explained at [23] and [24] of these reasons, in her amended initiating application filed on 2 April 2012, the mother elected to proceed by way of enforcement of the consent orders.
At some stage on 29 June 2012, the father filed an amended response in which he sought procedural orders as well as interim and final parenting and property orders. It is not clear whether that document came to the attention of the primary judge at the hearing on that day. The father did not appear by telephone from prison, although he was aware of the hearing. The father’s explanation for not appearing on 29 June 2012 was that he had sent a request to attend by electronic communication in April 2012 and on 29 June 2012 was waiting at prison to be called by the court to attend by telephone-link. At 9:30 am he was told by prison staff there was no telephone-link booked and he was unable to get through to the Family Court support line, although he endeavoured to do so until 12:30 pm. This explanation was not challenged. In any event, the primary judge proceeded to deal with the matter in the father’s absence.
Short reasons for judgment were given. In relation to the parenting orders the court noted that the father was presently in custody in relation to pending proceedings of a serious nature and due for sentencing in the foreseeable future. The primary judge found that, having regard to the relevant provisions of Part VII of the Act that it was in the best interests of the child that the previous interim orders of the court made by consent on 7 March 2012 be confirmed as final orders. Relevantly, this includes an order which restrains the father from contacting the child in any fashion and grants the mother sole parental responsibility. His Honour noted that the provisions of r 16.05 provide that where there are orders made in the absence of a party, that party may make application to vary or discharge the orders.
In relation to the property orders, the primary judge treated the application by the mother as an enforcement application and noted the previous consent orders required that a payment be made to the mother. He noted that following the sale of the former matrimonial home and the discharge of the mortgage, there were surplus funds available for distribution and that claims had been made upon them by the father’s previous partner and his mother. Hence the proceedings commenced in the Supreme Court of New South Wales.
Noting that the mother in these proceedings had received no communication or notification from those persons as to any claim, the primary judge was satisfied by way of enforcement of the consent orders, she should have the funds presently held by the Supreme Court of New South Wales.
The orders made on 29 June 2012 are essentially in terms of the mother’s application for parenting orders and, as far as enforcement of the property orders are concerned, they provide for the father to sign all documents necessary to authorise the sum of $30,524.80 be released from the Supreme Court of New South Wales and paid to the mother.
Order 6 of the orders relevantly states:
6.This order is made in the absence of the Respondent Father and should he seek to set aside or vary orders made today pursuant to rule 16.05 of the Federal Magistrates Court Rules then he must within one month of being served with a copy of these orders make application to the Court by application in a case supported by affidavit supporting the orders sought and setting out reasons for failing to appear.
On 20 July 2012, in accordance with the order just outlined, the father filed an application in a case seeking, inter alia, that the orders made on 29 June 2012 be set aside. That application came before the court on 8 October 2012 when the following orders were made:
1.The Father’s application filed on 20 July 2012 matter [sic] is adjourned to Thursday 29 November 2012 at 9.30 am for a directions hearing.
2.The Applicant Father file and serve an amended application in a case setting out with particularity orders sought by him in relation to the subject child together with an updating affidavit setting out his circumstances following his sentencing in September 2012.
3.In default of there being any appearance by or on behalf of the Applicant Father on the adjourned date the application will be dismissed.
4.Leave is granted to the Applicant Father to appear by telephone on the adjourned date by making appropriate arrangements with Court.
THE COURT NOTES THAT:
a.The Court has been unable to make arrangements with Corrective Services for the Applicant Father to appear by telephone today.
(original emphasis)
In accordance with Order 2 above, the father filed an amended application on 5 November 2012 and on 29 November 2012 it was listed for a directions hearing on 31 January 2013. In the amended application the father sought,
inter alia:
·A child psychologist be appointed for a forensic interview of the child;
·A family counsellor be appointed to prepare a family report;
·The proceedings be transferred to the Family Court;
·Payment of a sum of money by way of property settlement;
·Shared parental responsibility for K and contact/communication with her;
·Spousal maintenance of $50 per fortnight.
By her response, the mother sought that the father’s application be dismissed and for him to pay her costs.
On 31 January 2013 the primary judge heard the father’s application to have the orders of 29 June 2012 set aside, delivered reasons orally and provided written reasons on 28 May 2013.
The primary judge made one order in the following terms:
1.By consent the application under Rule 16.05 of the Federal Magistrates Court Rules 2001 is dismissed
THE COURT NOTES THAT:
a)On [in] January 2013 in the District Court of New South Wales Sydney the Applicant Father was sentenced to a period of 18 years with a non-parole period of 13 years and the Court is advised today the [sic] he proposes to make application by way of appeal as to the severity of that sentence.
b)The Court has today informed the Father that he is at liberty to make such application to the Court as he is advised upon his release from custody.
(emphasis added)
The reasons for judgment comprise four paragraphs. They note that the father was seeking to set aside the parenting and property orders made on an undefended basis on 29 June 2012 and “in effect to re-open the proceedings as to parenting and property and seeking orders as to spousal maintenance.”
The primary judge noted that the father appeared by telephone from prison and that the mother was represented by her solicitor.
Importantly, the primary judge said in the final paragraph:
4. …it is agreed that I dismiss the application under Rule 16.05…
(emphasis added)
It is against that order the father now appeals.
The appeal
The father filed an amended notice of appeal on 1 October 2013 which contains five grounds of appeal. At the commencement of the appeal, the father was given leave to rely upon an amended summary of argument in which he identified and confirmed that he was only pursuing three of the original five grounds of appeal. The grounds pressed before us were:
1.That the primary judge erred by showing bias towards the father and his mother and did not act impartially.
2.The primary judge erred by not adhering to procedural fairness and did not comply with rr 5.07 and 12.04 of the Family Law Rules 2004 (Cth).
3.The primary judge erred by hearing a significant proportion of the case on 31 January 2013 in the father’s absence.
As the grounds of appeal all relate to the manner in which the primary judge conducted the hearing on 31 January 2013, we propose to deal with the grounds in a composite sense.
Although initially seeking a number of orders in relation to contact with the child, both during his incarceration and after his release, the father abandoned all of those claims at the hearing before us except for orders which would provide for:
·The father to obtain at his expense a copy of the school report for the child and a copy of the order form for school photos of the child;
·The father be at liberty to send small gifts and cards by post to the child on her birthday and at Christmas and the mother ensure any gifts and cards be delivered to the child un-opened; and
·For the mother to keep the father informed as soon as practicable if there is a medical emergency concerning the child.
The hearing on 31 January 2013
The hearing commenced at 9:41 am. The mother’s solicitor appeared for her and the transcript notes the hearing was conducted by telephone conference with the father, who was incarcerated at the time.
The transcript indicates that there was some difficulty with the telephone line and the call was terminated to see if a less noisy line could be established. However, before the call was reconnected the primary judge discussed the matter with the mother’s solicitor, self-evidently in the absence of the father. To a considerable extent it is the exchanges which occurred in the absence of the father which provide the foundation to the issues raised by him in this appeal.
The proceedings which had commenced at 9:41 am were adjourned at 9:48 am before resuming at 9:57 am. The dialogue was fairly short and his Honour clearly assumed the person on the other end of the line was the father. This was a reasonable assumption given that his Honour twice addressed the person on the telephone using the father’s name and he was not corrected. As later became clear, it was not the father on the telephone line and confusion attended the interaction which was consequently terminated.
Following termination of the call, his Honour then further discussed the matter with the mother’s solicitor in the absence of the father.
Having apparently concluded the proceedings, and excused the mother and her solicitor, his Honour resumed the matter again at 10:10 am, this time with the father on the telephone, but in the absence of the mother or her solicitor.
Having satisfied himself he had the right person on the telephone, his Honour and the father participated in an exchange and the matter ultimately concluded at 10:58 am, 48 minutes after the father became involved.
What transpired both before the father came on to the telephone and during his exchanges with the primary judge will be considered in more detail when we address the grounds of appeal.
Addressing the grounds of appeal
In short, the father contends that the manner in which the hearing on 31 January 2013 was conducted is redolent of bias in the form of prejudgment and a lack of procedural fairness. We think there is merit in both of these complaints.
When the primary judge heard the father’s application on 31 January 2013, he was doing so pursuant to r 16.05 of the Rules. That rule provides as follows:
16.05 Setting aside
(1)The Court may vary or set aside its judgment or order before it has been entered.
(2)The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
…
(3)This rule does not affect the power of the Court to vary or
terminate the operation of an order by a further order.In Barbey & Tuttle (2013) FLC 93-534 the Full Court of the Family Court dealt with an appeal from a discretionary decision of a federal magistrate dismissing an application under r 16.05 to set aside final property orders made in default of the wife’s appearance.
The Full Court (May J, with Murphy and Kent JJ agreeing) said:
48.His Honour began by stating the rule, and quoted from the case of Clifford & Mountford [2006] FMCAfam 450 as authority for the “usual, but not exclusive considerations” for an application under r 16.05(2)(a) (at paragraph 5):
“34. From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):
a) The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b) There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely:
i) a reasonable explanation for the applicant's absence at the trial or hearing;
ii) material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii) no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
b) Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i) Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii) Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii) the conduct of the applicant since the judgment or order sought to be set aside was made.”
(bold emphasis added)
Their Honours went on to say that the absence of reasonable excuse may not be fatal to an application to set aside orders, especially where it can be demonstrated there has been a miscarriage of justice (at [54]).
The Full Court agreed with the federal magistrate that the applicant would have to “put a case to show the orders would be different” and whether prejudice to the other party could be addressed by the court (at [56]).
The Full Court concluded:
90.The discretion to set aside orders made in default of a party’s appearance is unfettered. Regard should be given to the explanation for a failure to appear, the possibility of a different result, and prejudice to the other party (and how this may be addressed). His Honour did consider each of these matters, and did not err in his approach. He was not bound to give one matter more weight than another, and was correspondingly entitled to place significant weight on the wife’s failure to establish a reasonable explanation for her failure to appear or to participate in the proceedings.
91.The arguable case consideration might have been established by contrary evidence in the wife’s material. That his Honour did not hear submissions on this did not prevent him from properly considering the point. The onus was on the wife to provide evidence, which she failed to do. No amount of submissions could have overcome the absence of evidence from the wife.
92.The evidence which formed the basis of the add-back, the only genuinely controversial matter in the updated response/orders sought by the husband, was from the wife’s own bank accounts, which had to be obtained under subpoena because of her own non-compliance. The wife gave no explanation for that expenditure in her affidavit in support seeking to set aside the orders.
93.It was not apparent on the material before his Honour, what alternative orders or distribution the wife sought, or would seek if successful in her application to set aside. Nor was it suggested in her material before the Federal Magistrate or before us on appeal that the 80/20 distribution was incorrect or manifestly unjust.
94.In these circumstances, His Honour could not have made, even with further oral submissions, a determination that the wife might obtain a different result, which the High Court expressed in Allesch v Maunz to be in effect a condition to the exercise of the discretion. He did, as was required of him, have regard to the issue. Accordingly, there can be no appealable error.
95.The issue of prejudice to the husband was not addressed at all by the wife. In the absence of evidence or argument from her, his Honour’s finding that the prejudice to the husband was significant and could not be sufficiently addressed by costs, was entirely justified in the circumstances of this case.
It was thus incumbent on the primary judge to address the matters relevant to the exercise of discretion when applying r 16.05(2), even when purportedly obtaining the father’s consent to dismiss his application. For reasons which will become apparent, we are not satisfied that when his Honour sought to obtain the father’s purported consent to his application being dismissed that his Honour did so.
However, the father has relied upon the grounds of bias and procedural fairness to which we now turn.
When the application commenced before the primary judge on 31 January 2013, it would be an understatement to say it was attended by considerable confusion. First, someone who identified themselves as the father appeared by telephone but there was background noise and the call was terminated so that an attempt to get a better connection could be made. During this interregnum, in the absence of the father, at his Honour’s behest, he and the solicitor for the mother discussed the matter in some detail. In the father’s absence the mother’s solicitor handed up a letter from the Office of the Director of Public Prosecutions indicating that the father was sentenced to 18 years imprisonment. The following exchange, again in the absence of the father, took place:
MS [McCROWEN]: He has been charged for sexual assault on two counts.
HIS HONOUR: So they just relate to sexual assault charges, obviously aggravated.
MS McCROWEN: Yes. I would say so, your Honour.
(Transcript, 31 January 2013, p 3)
Further discussion followed in which his Honour was informed that the child, K, was aged two at the time of the offences and a discussion took place about whether the sentencing judge’s remarks could be obtained. The following exchange then occurred:
HIS HONOUR: Thank you. I will just stand the matter down and we see what we can do. If we can’t make any progress, I think all I can really do is continue the directions I made and then let him file his documents and deal with it on the next occasion, probably to end it. Okay?
MS McCROWEN: Yes. See, my client is very limited in her financial resources.
HIS HONOUR: Yes. Well, she can be assured that nothing is going to happen in terms of the current orders. Can you – do you have any idea what has happened in relation to funds in the Supreme Court?
MS McCROWEN: They’re sitting there, your Honour. He has made the application in relation to those funds, but as I – sorry. I’ve picked carriage up with the matter over the last couple of occasions, but
HIS HONOUR: Well, there’s an order
MS McCROWEN: There is an order for the release
HIS HONOUR: that your client be authorised on behalf of [the father]
MS McCROWEN: That’s correct.
HIS HONOUR: to sign all necessary documents to have the funds withdrawn.
MS McCROWEN: That’s correct, but he has made this further application in the case against that. He just keeps making applications in the case, your Honour.
HIS HONOUR: Well
MS McCROWEN: And my client unfortunately gets dragged around.
HIS HONOUR: this order will override that, so I think you will just have to press the registrar of the Supreme Court and see what happens.
MS McCROWEN: That’s fine.
HIS HONOUR: In the alternative, your client may have to make an application and give some history of what has happened here, and then the orders and see what happens.
MS McCROWEN: We were simply really seeking to close this matter up.
HIS HONOUR: Yes. I know.
MS McCROWEN: So – thank you, your Honour.
HIS HONOUR: I suppose he deserves – well, probably not so much, but he deserves at least to be given some semblance of a hearing in relation to his application so I can deal with it.
MS McCROWEN: Yes. I can understand that, your Honour.
(Transcript, 31 January 2013, p 4-5)
The father submits that the last comment alone indicated a prejudgment by his Honour of the issues before him. We agree.
Before the father was finally contacted, another connection through to the prison was made and it appeared he was present. It turned out, however, that it was not the father on the telephone line but another prisoner which necessitated that call being terminated and another attempt to connect with the father was made.
During that interregnum there was further discussion between his Honour and the mother’s solicitor. The following occurred:
HIS HONOUR: … what I propose to do is this: I will mark into evidence the letter from the Director of Public Prosecutions dated 29 January 2013 and if you are able to provide to the court, because it’s a matter of public record, his reasons for sentence, what I would propose to do is then deliver a judgment. We just can’t communicate with him, and having regard to his circumstances – as you can imagine, his application in relation to the children’s orders is going to be dismissed.
MS McCROWEN: Thank you, your Honour.
HIS HONOUR: And that can only be – well, subject to what I read in the reasons, but in any event, if we could get a copy of those reasons for judgment. What I will do is I will stand the matter over as a reserve judgment and if you can provide to my associate a copy of the reasons for sentence in chambers, I will mark them into evidence and I will deliver reasons for judgment. We will just let you know when it’s going to be done.
MS McCROWEN: Thank you, your Honour.
HIS HONOUR: They will probably be just short reasons, in any event – written reasons. Your client can be excused.
MS McCROWEN: Thank you.
HIS HONOUR: I think you can probably expect that they will probably end the proceedings. I can’t do much more about what’s happening in the Supreme Court. I suppose your client is going to have to – has she made any formal application to the Supreme Court?
(Transcript, 31 January 2013, p 7-8)
Further discussion ensued regarding the application to the Supreme Court of New South Wales:
HIS HONOUR: …Clearly the evidence is that she had – that claim has been dismissed. The court has made an order for payment out of the money and your client is able to sign on behalf of [the father] under the orders I made to get them out.
MS McCROWEN: It’s just because, your Honour, I think there was a bit of a delay because he, in his latest application in the case, was seeking the amendment or to raise again the issue of the property orders.
…
MS McCROWEN: So if your orders will cover
HIS HONOUR: Yes. I will sort it out.
(Transcript, 31 January 2013, p 8)
His Honour then excused the mother and her solicitor.
That part of the proceeding was adjourned at 10:04 am and at 10:10 am the hearing resumed. This time and in the absence of the mother and her solicitor, when the father was finally connected through to the court.
His Honour identified the length of the father’s prison sentence and was informed by the father that he considered it to be manifestly excessive and that he had applied to appeal against the severity of the sentence.
The following exchange then occurred:
HIS HONOUR: Well, I think – but I think that even the downside of that, [the father], probably is that even if it’s reduced on appeal, you will be in custody at least for a period of time. Is that right?
[The father]: Well, that’s correct. Yes.
HIS HONOUR: So I expect that the more appropriate course is for – while you remain in custody, certainly this court won’t be entertaining any children’s application by you, but once you are released from custody, that’s another issue. That will a significant change in your circumstances and you could make an application or such application to the court as you see fit.
(Transcript, 31 January 2013, p 10)
After some discussion about the father’s appeal his Honour said:
HIS HONOUR: Now, well, having regard to your sentencing, it appears to me that in relation to your application under rule 16.05, there’s probably little utility in that being dealt with. And subject to the outcome of your severity appeal, you will know when you might be able to make some other application to the court. So in those circumstances, would you be agreeable to the court simply at this stage closing the file, and then when your circumstances are better known, you can make whatever application you like?
[The father]: The second part of that application, your Honour, the difficulty I have is in relation to property settlements as well.
(Transcript, 31 January 2013, p 11)
We observe that the father’s response to his Honour was non-responsive to the question of whether he was agreeable to “closing the file”, whether indeed he understood that phrase was intended to indicate a dismissal of his application.
The father raised the issue of monies being held in the Supreme Court of New South Wales and the primary judge responded:
HIS HONOUR: Well, [the father], having regard to the value of those items and the cost of re-opening any property settlement proceedings and your circumstances, you can certainly take it from me that I won’t be re-opening the property proceedings. But as I’ve said, it’s a matter for you when you are released from custody to make whatever application you like in relation to the child.
(Transcript, 31 January 2013, p 12)
The father then said the only other final matter was in relation to spousal maintenance, saying:
[The father]: All right. The only other final matter, then, was in relation to spousal maintenance as well. So they were the two issues with the property and spousal maintenance.
HIS HONOUR: Spousal maintenance for who?
[The father]: For myself.
HIS HONOUR: Well, [the father], that’s a different issue altogether. You could make an application, but I expect in your present circumstances, you will have no present need for spousal maintenance. Is that right?
[The father]: Well, no, it’s not right because you’re not given any money or no significant money in here and the costs of maintaining a lifestyle in here is ... on money received, and I’ve got no money to live on.
(Transcript, 31 January 2013, p 12)
Having identified that the father’s application was for spousal maintenance for him, his Honour said:
HIS HONOUR: Well, [the father], I think you can take it from me that if you make a spouse maintenance application, certainly I would consider at this stage, not having at least seen the documents, it would be completely without merit…
(Transcript, 31 January 2013, p 12)
The father then raised with his Honour other matters that were in his application:
[The father]: Okay. Now, just one last question then and we might be able to close this file off. It’s my understanding then, that you will sign it. You won’t even entertain any ideas of phone contact with the child while I’m in prison?
HIS HONOUR: No, [the father]. Not having regard to the charges upon which you’ve been convicted.
[The father]: Right. Okay. Well, in that case, then, your Honour, then there’s obviously no point in keeping the file open.
HIS HONOUR: All right. Well, what I will do then
(Transcript, 31 January 2013, p 13)
Ground 1 of the father’s grounds asserted actual bias towards him which, in this case, is an assertion of prejudgment by the primary judge.
In our view, there are a number of comments by his Honour recorded in the transcript that support the contention that his Honour had prejudged the matter. They are:
· [the mother] can be assured that nothing is going to happen in terms of the current orders;
· I suppose he deserves – well, probably not so much, but he deserves at least to be given some semblance of a hearing in relation to his application so I can deal with it; and
· as you can imagine, his application in relation to the children’s orders is going to be dismissed.
(emphasis added)
It seems to us that his Honour had clearly determined that the father’s application was going to fail and that decision had been made clear prior to the father being given any opportunity to be heard and without his Honour having regard to the material on which the father relied. The primary judge’s comments made in the absence of the father then followed through when the father was finally connected.
In summary, his Honour made it clear to the mother’s solicitor that the father’s application would not be entertained in any respect. Once the father made contact, the primary judge conducted the proceedings consistently with that outcome and in so doing, demonstrated that his remarks could not thus be regarded as the mere expression of tentative remarks designed to tease out issues in the case. This point is reinforced by the fact that the primary judge did not inform the father of what had occurred in his absence nor did he seek to have the mother’s solicitor take any further part in the proceedings. Moreover, the father was informed that the property aspect of his case would not be
re-opened, without first allowing an opportunity for the father to make any submissions about the merits. In a similarly peremptory manner, his Honour informed the father that he had no need for spousal maintenance and if he did, he should look to his family. In effect, his Honour made it absolutely clear to the father that he would not even hear from him as to why he ought to entertain the application at all.
In Vakauta v Kelly (1989) 167 CLR 568, Dawson J said at 575:
The relevant principle is that laid down in Reg. v. Watson; Ex parte Armstrong and applied in Livesey v. New South Wales Bar Association, namely, that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. Of course, where there is actual bias, then, a fortiori, a judge ought not to sit…
The lack of impartiality which is alleged in this case is not said to have arisen from any interest in the outcome of the case; it is based upon the preconceived views which the trial judge had about the defendant’s witnesses and the real defendant…
(footnotes omitted)
(see also Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155, at p 158; Reg. v. Shaw; Ex parte Shaw (1980) 55 ALJR 12, at pp 14, 16) and in the Supreme Court of New South Wales see, e.g. Barton v. Walker (1979) 2 NSWLR 740, at pp 748-749)
In Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, Gleeson CJ and Gummow J, with whom Hayne J agreed, said:
71.… Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
72.… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
In our view it can easily be seen that a fair minded lay observer might entertain “a reasonable apprehension” that his Honour did not bring “an impartial and unprejudiced mind to the resolution” of the issues involved in the father’s application.
In his written submission, counsel for the mother who appeared on the appeal asserted that the father had the opportunity to raise the issue of bias but he failed to do so at first instance and had thus waived his right to now raise it (Vakauta v Kelly (supra)). However, as the father correctly responded, he was unaware of the comments his Honour had made prior to his telephone connection with the court and although some of his Honour’s subsequent comments can be read in the light of prejudgment as well, it was not until the father saw the transcript and what had occurred in his absence that he realised the extent to which there had been prejudgment.
In our view, Ground 1 is made out and there was a miscarriage of justice occasioned by the prejudgment of the matter by the primary judge.
Ground 2 of the father’s amended grounds assert the primary judge failed to provide procedural fairness to the father and his mother by denying them the right to be heard. We are also satisfied that there is merit in this ground, insofar as it relates to the father. The approach taken by his Honour which we have already set out, fails to allow the father to address the matters relevant to
r 16.05. We are therefore satisfied there was failure to accord the father procedural fairness. We do not accept that the father’s mother was denied procedural fairness. Her claim failed in the Supreme Court of New South Wales.
The final ground pressed asserts his Honour erred by hearing a significant proportion of the case on 31 January 2013 in the father’s absence, putting him at a disadvantage. This is really a reiteration of the grounds alleging bias, prejudgment and lack of procedural fairness and to that extent we have already indicated that there is merit in those complaints.
Comment on the order of 31 January 2013
Before dealing with the question of redetermination of the father’s application, it is necessary to make some comment about the order made by the primary judge on 31 January 2013. The order dismissing the father’s application made pursuant to r 16.05 was said to be made by consent. Having considered the transcript of the hearing before the primary judge we do not accept that any supposed concessions that were made by the father could amount to properly informed consent to the dismissal of the entirety of his application. Taken at its highest, in our view, the father did no more than acknowledge that the primary judge had decided his various applications were to be summarily dismissed. The process by which the supposed consent was given is most unfortunate.
It must also follow that the procedural unfairness occasioned to the father of which he was unaware and the prejudgment disclosed in his absence, would vitiate any consent subsequently given to the dismissal of his application.
It follows that, at the very least, the order must be varied so that the words “By consent” are omitted.
Redetermination of the father’s application pursuant to r 16.05 of the Federal Circuit Court Rules
Having found error in the decision by the primary judge, it is appropriate that we deal with the father’s application to set aside or vary the orders made on 29 June 2012. The re-exercise must be guided by principle and by reference to the facts and circumstances existing at the time of the hearing of the appeal (Allesch v Maunz (2000) 203 CLR 172). We are able to do so in this case because the parties agree that we should, and because of the material already filed by the father in support of his application to set aside the 29 June 2012 orders and the admission of the following documents by consent on appeal:
·the sentencing remarks of the District Court of New South Wales given in January 2013;
·the decision of the New South Wales Court of Criminal Appeal dismissing the father’s appeal from December 2014;
·the original application for orders by consent, file number SYC 69 of 2011; and
·the decision of the Supreme Court of New South Wales dealing with the sale of the former matrimonial home and relating to the retention of funds in the Supreme Court of New South Wales pending the outcome of this appeal. In the interests of anonymity we have omitted the name and citation for those reasons for judgment.
The engagement of r 16.05(2) requires the exercise of discretion which is unfettered but nonetheless is to be exercised judicially bearing in mind the public interest in there being an end to litigation.
We have previously identified the matters to which the court must have regard in considering r 16.05(2). There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside, namely:
1.Is there an adequate explanation proffered by the absent party for their failure to appear? If not, principles of the importance of finality would ordinarily see the relief pursuant to the Rules refused (Nicholson v Nicholson [1974] 2 NSWLR 59 at [64]; Maxwell-Smith v Donnelly [2012] FCA 154).
2.The necessity for an applicant to demonstrate an arguable case for the relief sought. That is, a case which is credible with real prospects of success (Registrar of Aboriginal Corporations v Murnkurni Women’s Aboriginal Corporation(in liq) (1995) 58 FCR 125). In other words, material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside.
3.No prejudice to the party with the benefit of the order sought to be set aside that is not able to be adequately addressed by the court.
It is relevant to the three criteria just set out that they would encompass whether a party with notice of the proceedings disregarded the opportunity of appearing at and participating in the trial, and any delay in bringing any application to set aside orders (Barbey & Tuttle (supra)).
We are satisfied from the evidence provided by the father that he wished and attempted to participate by telephone from prison on 29 June 2012 but was prevented from doing so because of administrative difficulties beyond his control. In our view, he has provided a reasonable explanation for his absence. He did not delay in bringing the application to set aside the orders of 29 June 2012.
The focus in this case must therefore be upon whether the father has demonstrated an arguable case for the relief sought that might reasonably lead to the making of an order different to that sought to be set aside; in other words a case which is credible with real prospects of success. If the father succeeds in establishing an arguable case, then the question of prejudice to the mother must be considered.
An arguable case for the relief sought – parenting proceedings
The context to the application in relation to the parenting orders must, of necessity, involve the fact that the father is presently incarcerated in prison and has received a sentence of 18 years with a 13 year non-parole period. It must also involve consideration of the fact that some of the more serious offences of which he has been convicted are in relation to the child who is the subject of these proceedings. The nature of the offences for which he was convicted and sentenced has been set out earlier in these reasons. We do not need to repeat them, save to say aside from their obvious criminality, that they provide the grossest abuse of parental responsibility.
The father’s amended application filed 5 November 2012 sought orders for:
·Parental responsibility;
·Keeping the father advised in writing of the residential address of the child, the school attended by the child and the telephone number which the child could be contacted on;
·The father be at liberty to obtain at his expense a copy of the school report of the child and a copy of order forms for school photos of the child;
·The father be at liberty to send cards and small gifts to the child on her birthday and at Christmas and that the mother ensure any gifts and/or cards are delivered to the child un-opened;
·For the mother to keep the father informed as soon as practicable if there was a medical emergency concerning the said child;
·The mother send a copy of these orders to the principal of each school the child attends in the future;
·Supervised contact with the child whilst the father is incarcerated;
·Contact orders upon the father’s release from prison;
·Once the child reaches the age of 8 years, access to an email address for the child to the father or a member of his family;
·No time limits on communication between the father and the child.
Notwithstanding that the father sought these orders, at the hearing before us the father conceded that he was no longer seeking any face to face or telephone contact orders. Nor was he still seeking any orders to provide for time with the child upon his release from prison. He confirmed that the orders he was now seeking were as set out at [47] of these reasons.
In determining an application in relation to parenting orders s 60CA of the Act requires the court have regard to the best interests of the child as the paramount consideration. In determining what is in a child’s best interests, the court must consider the matters set out in ss 60CC(2) and (3), namely the primary and additional considerations.
The primary considerations are set out in s 60CC(2) and provide:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The orders of 29 June 2012 provide that the child live with the mother and that the mother have sole parental responsibility for her long-term welfare, care and development. As no order is sought now by the father for equal shared parental responsibility, nor an order to displace the parenting orders in favour of the mother, the requirements imposed by s 65DAA of the Act are not engaged and the court will simply determine whether it is in the best interests of the child for the parenting orders as sought by the father to be made, having regard to the primary and additional considerations.
In our view, the most important provision of s 60CC(2) is the need to protect the child from physical or psychological harm, particularly the latter (bearing in mind he no longer seeks any direct contact) which might arise were the orders sought by the father to be made. Relevant additional considerations under s 60CC(3) in this case are:
·The nature of the relationship of the child with each of her parents (s 60CC(3)(b));
·The capacity of the father to provide for the needs of the child, including emotional needs (s 60CC(3)(f));
·The attitude to the child and the responsibilities of parenthood demonstrated by the father (s 60CC(3)(i));
·Any family violence involving the child, and in this context we have no doubt that the sexual abuse of the child for which the father was convicted amounts to family violence (s 60CC(3)(j)) (see the definition of ‘family violence’ in s 4AB(2)(b) – a sexual assault or other sexually abusive behaviour);
·Any other fact or circumstance that the court thinks is relevant – in this case this would include the father’s incarceration (s 60CC)(3)(m)).
The father’s submission in support of the orders sought by him was that the child need not know that he wanted to obtain school report cards and photographs, so that the child could not be affected in any way if these orders were made. The child was very young when she was violated by her father and it would seem she was unaware that he photographed and filmed his abuse. It is the father’s contention that because of the child’s young age at the time of the offences she would not be fully cognisant of what he had done to her. He seemed to concede that at some stage, when she is older, she is entitled to know, but not before he had the chance to send her cards and gifts. The father speculated that it would be in the child’s interest to establish a bond with him through birthday cards and such like and then later in life, when she was old enough to understand, she could make up her own mind about whether she wished to see him.
The father has been convicted of the most heinous offences against his daughter. Whilst acknowledging that he no longer wishes to have any direct contact with her, he seeks to be kept advised of her residential address and the school she attends, and to obtain a copy of her school report and school photos and to be at liberty to send cards and gifts to her, as well as being kept informed of any medical emergency in relation to her.
Whilst the provision of this information would, it is asserted, benefit the father, there is no evidence that it would benefit the child. Whilst the provision of school reports and photos, in particular, might in the normal case be an unexceptional request by a father otherwise not having contact with a child, in the father’s case, having regard to the offences of which he was convicted, the normalcy of this request cannot be assumed.
The provision of gifts, letters and cards would be an intrusion in the child’s life (and also the mother’s) by a parent who has betrayed his parental responsibility in the most egregious way and there is no evidence to suggest that any of the proposed orders would be in the best interests of the child.
The court’s overriding requirement to give greater weight to the need to protect the child from psychological harm arising from the father’s sexual abuse of her, in our view, overrides any other consideration relevant to her best interests. His conduct represents a total abrogation of any sense or sensibility of what it is to exercise appropriate parenting and in our view, in relation to the parenting orders made on 29 June 2012, the father has not demonstrated an arguable case to vary or set them aside and there is no likelihood that, if the orders were set aside, and the matter re-heard, it might reasonably lead to the making of a different order.
An arguable case for the relief sought – property proceedings
The property orders sought by the father in his amended application filed 5 November 2012 were:
1.For all cash at banks and monies invested, including any vehicles in the parties names [sic], be calculated and added to the asset pool.
2.For all superannuation and any life entitlements held in either party’s name to be calculated and added to the assert pool.
3.For all outstanding liabilities, debts, personal loans, tax debt’s [sic], credit cards and charge accounts in either party’s name prior to the 22nd October 2010, be calculated and deducted from the asset pool.
4.That the mother pay to the father the sum of $30,000 for his furniture and belongings that the mother removed from the matrimonial home.
5.For the father to receive the full amount of $30,524.80 as his share of the property division. [This is the money held in the Supreme Court of New South Wales]
As has already been mentioned, the original orders concerning property settlement were made by consent and provided for the mother to receive $40,000 as property settlement.
The fulfilment of these orders was overtaken by action by the mortgagee to sell the former matrimonial home. This resulted in proceedings in the Supreme Court of New South Wales between the mortgagee and various parties. The first defendant in those proceedings had lodged a caveat over the property ‘as regards the share’ of the father.
The reasons for judgment in relation to the dispute indicated that the matters to be determined were the competing claims in relation to the surplus funds after sale and payment of the mortgage debt and other expenses. That figure was $30,524.80 and the sum was paid into court pursuant to s 95 of the Trustee Act (No. 14) 1925 (NSW). On 29 June 2012, the primary judge in the family law proceedings ordered that the whole of that sum should be paid to the mother.
The first defendant in the Supreme Court of New South Wales proceedings had been in a relationship with the father from 1997 to May 2005 and there are three children of their relationship. She claimed an interest in the property by reasons of outstanding child support and costs. The Supreme Court of New South Wales judge was not satisfied that the first defendant had “strictly proved her entitlement to the surplus that she claimed” and her claim failed.
The father’s mother also failed in her claim.
The Supreme Court of New South Wales judge, discussing the mother’s claim, noted that she had the benefit of the consent orders and that the amount of one half of the surplus would not be sufficient to meet those orders. His Honour continued:
[Quotation omitted for publication purposes]
Ultimately his Honour made orders providing for one half of the surplus funds, including the interest thereon, to be paid to the mother and that the balance of the surplus fund, including interest, also be paid to the mother in the event that the father’s appeal to this Court is unsuccessful.
The father’s affidavit filed 16 November 2011 indicated that he had personal loans, tax debts, car loans and child support obligations. He also asserted that the mother had taken the household furniture when she left and that it had a value of $30,000 which we note was disputed by the mother. The father conceded that that was its insurance value and there was no valuation evidence of the household furniture.
The father informed us that he relied on his amended affidavit filed 9 August 2012 asserting that he had debts to finance providers, debt management companies and banks which total $42,519. In addition he asserted there was a tax debt in his name of $58,000 and money owing to his mother in the sum of $40,000. The father informed us that the Australian Taxation Office was seeking payment from him but that no other demands had been made and no one had moved to bankrupt him. We observe that these debts are all in his name. The father submitted to us that it was just and equitable to allow him the balance of funds held in the Supreme Court of New South Wales on account of a number of factors which were:
·The mother has had one half of the funds and it would be reasonable for him to have the other half;
·If the debts ultimately have to be paid by him, then it would be reasonable for the father to have the balance of funds;
·There is an imbalance in the superannuation of each of the parties in favour of the mother and that too should result in him having the balance of funds;
·Finally, because the mother is likely to receive $50,000 in victims compensation.
The father conceded that he was not going to be in a position to provide ongoing financial support for the child and that that cost would fall entirely to the mother for the balance of the child’s dependency.
It is apparent that the unsecured liabilities of the father were in existence and known at the time of the making of the consent order. There is no application by the father under s 79A to set aside the consent order for payment to the mother, nor could his present application seeking property orders be characterised as such an application. Even if it could, the father has not deposed to anything that could engage the various but limited bases for setting aside an order under s 79A.
The mother has elected to seek to enforce the order for payment to her of $40,000. She seeks to do so by claiming the remaining funds held by the Supreme Court of New South Wales which a judge of that court has ordered be paid out to her.
Enforcement is a discretionary remedy. Since the consent order was made the circumstances of the parties has changed. The jointly owned real property of the parties has been sold by the mortgagee; the father is serving a lengthy prison term and will not be eligible for parole until 2024; the mother is not receiving any child support and will be solely responsible for the care and financial support of K during her dependency. Although the father has debts, any action by his creditors could only result in his bankruptcy.
All these factors weigh heavily in favour of the needs of the mother to the funds which in the consent orders the parties agreed she should have. The father has not demonstrated a credible case with real prospects of success that might reasonably lead to a different conclusion.
The final order sought by the father related to an order for spousal maintenance pursuant to s 72 of the Act payable by the mother to the father in the sum of $50 per fortnight. No evidence was produced to indicate that the mother could in fact afford to make this payment. In any event, the party seeking maintenance must establish that they are unable to support themselves adequately. Given the father’s concession that his essential needs were being met in prison, he falls well short of an arguable case for payment of spousal maintenance.
Accordingly we conclude that whilst the father has offered an adequate explanation for his failure to appear and oppose the proceedings on 29 June 2012, he has not established that any matters he has raised might reasonably lead to the making of an order, either in relation to parenting or property, different to those sought to be set aside. Therefore he has not satisfied the criteria under r 16.05 that would lead to a varying or setting aside of the orders made by the primary judge on 29 June 2012, notwithstanding the procedural irregularities that attended the hearing on 31 January 2013. Accordingly we propose to dismiss the balance of the appeal.
Costs
In the event the appeal was dismissed the mother, who is legally aided, sought costs. However, counsel for the mother properly acknowledged that the unfortunate procedural irregularities evident in the court below would weigh against the father being ordered to pay the mother’s costs. We agree and her application for costs will be dismissed.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan and Kent JJ) delivered on 29 June 2016.
Associate:
Date: 29 June 2016
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