Manifold & Alderton

Case [2021] FamCAFC 61

FAMILY COURT OF AUSTRALIA

Manifold & Alderton [2021] FamCAFC 61

Appeal from: Manifold & Alderton [2020] FCCA 2650
Appeal number(s): NOA 72 of 2020
NOA 73 of 2020
File number(s): BRC 10209 of 2012
Judgment of: STRICKLAND, KENT & AUSTIN JJ
Date of judgment: 4 May 2021
Catchwords:

FAMILY LAW – APPEALS – Parenting and property settlement – Delay of seven years between trial commencing and delivery of judgment and final orders in both the parenting and property proceedings – Nothing in the reasons for judgment seeking to explain or justify the delay or recognising the possible effect of the delay on the decision-making process – Reasons for judgment failed to engage with the father’s case and overlooked many aspects of the evidence – No reasons provided for rejecting the recommendations of the family consultant and discounting her evidence – Failure to make relevant findings of fact arising out of the evidence – Failure to provide adequate reasons – Failure to take into account relevant and material considerations – Merit in grounds of appeals – Appeals allowed. 

FAMILY LAW – COSTS – Both parenting and property appeals allowed and proceedings remitted for rehearing – Father granted costs certificate for the appeal and rehearing – Mother granted a costs certificate for rehearing.

Legislation:

Family Law Act 1975 (Cth) Pts VII, VIII, ss 65DAC, 75(2), 79(1), 79(2)

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC
93-143; [2003] FamCA 395

Hsiao v Fazarri (2020) 383 ALR 446; [2020] HCA 35

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77

McCrossen and McCrossen (2006) FLC 93-283; [2006] FamCA 868

Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; [2004] WASCA 149

Paggett & Cable (2015) FLC 93-670; [2015] FamCAFC 186

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Von Schoeler v Allen Taylor and Company Ltd t/as Boral Timber (No.2) (2020) 376 ALR 110; [2020] FCAFC 13
Division: Appeal Division
Number of paragraphs: 127
Date of hearing: 4 March 2021
Place: Brisbane (delivered in Adelaide)
Counsel for the Appellant: Mr Shoebridge
Solicitor for the Appellant: Simonidis Steel Lawyers
The Respondent: Self-represented

ORDERS

NOA 72 of 2020
NOA 73 of 2020
BRC 10209 of 2012

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR MANIFOLD

Appellant
AND:

MS ALDERTON

Respondent

ORDERS MADE BY:

STRICKLAND, KENT & AUSTIN JJ

DATE OF ORDERS:

4 MAY 2021

ORDERS MADE ON 4 MARCH 2021

1.The appellant be granted leave to rely on his late filed Summary of Argument filed on 18 January 2021.

2.The respondent’s Application in an Appeal filed on 2 March 2021 insofar as it seeks leave to file a Notice of Cross Appeal be dismissed.

3.The respondent’s said Application in an Appeal insofar as it seeks leave to adduce further evidence comprising the appellant’s Application in a Case filed on 19 November 2020…

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Details
AGLC
Manifold & Alderton [2021] FamCAFC 61
Case
[2021] FamCAFC 61
Decision Date

CaseChat Overview and Summary

The case involves an appeal by the father, Mr Manifold, against the parenting and property settlement orders made by the Federal Circuit Court of Australia in relation to his former de facto relationship with Ms Alderton. The dispute arose following the end of their relationship in 2012 and the subsequent proceedings that commenced in November 2012, with the final hearing occurring in September 2013. However, the judgment and final orders were not delivered until September 2020, a delay of seven years. The father contended that this delay impaired the primary judge's capacity to properly assess the evidence and make necessary findings. The legal issues that the court had to decide included whether the delay in delivering the judgment affected the primary judge's decision-making process, whether the reasons for judgment failed to engage with the father's case and overlooked many aspects of the evidence, and whether the court provided adequate reasons for rejecting the recommendations of the family consultant and discounting her evidence. The court found merit in the grounds of appeal and allowed the appeals, setting aside the parenting and property settlement orders. The court also remitted the proceedings for rehearing by a different judge and granted costs certificates to both parties for the appeal and rehearing.

Orders

Orders of the court

NOA 72 of 2020

NOA 73 of 2020

BRC 10209 of 2012

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR MANIFOLD

Appellant

AND:

MS ALDERTON

Respondent

ORDERS MADE BY:

STRICKLAND, KENT & AUSTIN JJ

DATE OF ORDERS:

4 MAY 2021

ORDERS MADE ON 4 MARCH 2021

1. The appellant be granted leave to rely on his late filed Summary of Argument filed on 18 January 2021.

2. The respondent’s Application in an Appeal filed on 2 March 2021 insofar as it seeks leave to file a Notice of Cross Appeal be dismissed.

3. The respondent’s said Application in an Appeal insofar as it seeks leave to adduce further evidence comprising the appellant’s Application in a Case filed on 19 November 2020 seeking a stay, the Affidavit in support thereof, and the order made by the primary judge on 11 December 2020 be dismissed.

4. The respondent’s said Application in an Appeal insofar as it seeks leave to adduce evidence of the amended final property settlement orders of the primary judge made on 19 November 2020 be granted.

5. Judgment be reserved.

ORDERS MADE ON 4 MAY 2021

1. The appeals be allowed.

2. The parenting orders made on 21 September 2020 be set aside.

3. The property settlement orders made on 21 September 2020 and amended on 19 November 2020 be set aside.

4. The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

5. The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 father in respect of the costs incurred by him in relation to these appeals.

6. The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The property settlement orders appealed from essentially provided for the parties to each retain the property already in their respective possession.BACKGROUND The father was born in 1973 and will shortly turn 48 years of age. The mother was born in 1981 and is 40 years of age. The parties met in October 2000 and commenced their de facto relationship in 2001. The parties have two children, X born in late 2008, and Y born in late 2009 (“the children”). Both children have special needs. X has autism spectrum disorder and Y has attention deficit hyperactivity disorder and post-traumatic stress disorder. In 2012 the mother had a lotto win of just over $1.1 million. On 25 April 2012 the mother told the father that the relationship was over, and the father left the home four days later. The mother transferred $300,025 of the lotto winnings to the father, assuming that that would finalise the property matters between them. The mother later purchased land at C Street, Suburb D and built a home thereon with the lotto winnings that she retained. Parenting and property settlement proceedings were instituted by the father in the Federal Circuit Court of Australia in November 2012, and the final hearing took place on 19 and 20 September 2013, when the primary judge reserved her judgment (referred to as the first tranche of the hearing). Some four years later, no judgment having been rendered in the meantime, the father filed an application for interim orders. As a result interim parenting orders were made by consent on 27 October 2017 and the matter was listed for the taking of further evidence in relation to the final orders application. That hearing took place on 5 March 2018, and judgment was again reserved (referred to as the second tranche of the hearing). Between June 2018 and September 2018, the mother unilaterally suspended time between the children and the father. With final judgment still awaited, the father filed a Contravention Application in relation to those breaches on 11 July 2018. The mother admitted to having breached the parenting orders without reasonable excuse on 27 September 2018, and was placed on a bond to be of good behaviour, and to comply with the then interim parenting orders. In December 2018 the mother unilaterally removed the children from their school and commenced home schooling. In breach of the interim parenting orders made on 27 September 2018, the mother failed to make the children available to the father from around 16 November 2018. The father filed a further Contravention Application in relation to those breaches. The children were not made available to the father until that application was heard. After a contested hearing of the Contravention Application on 17 April 2019, the mother was found to have breached the interim parenting orders without reasonable excuse. The mother was ordered to re-enrol the children in their usual school, and orders were made for the children to spend additional time with the father. The Contravention Application was otherwise adjourned.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In summary, I find merit in the grounds of appeal as they relate to the orders for property settlement.CONCLUSION Having found merit in all but one aspect of one of the grounds of appeal in the parenting appeal, the appeals must be allowed and the orders set aside. The question then becomes whether, given the unfortunate history of this matter, and in particular the inordinate delay in delivering judgment, it would be possible for this Court to re-exercise the discretion, rather than remit the proceedings for rehearing. As much as this Court would favour that outcome in the interests of the parties, as was conceded by the father, it is not open to this Court to do that, given the bases on which the appeal is being allowed. Accordingly, the proceedings will be remitted for rehearing.COSTS In the event that the appeals were allowed, the father sought costs certificates for both the appeal and the rehearing, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The mother had no legal costs in relation to the appeal, but she sought a costs certificate for the rehearing. Both applications will be granted.KENT J I have had the advantage of reading in draft form the separate reasons given by Strickland J and Austin J. I agree with the orders their Honours propose and with their Honours’ respective reasons for those orders.AUSTIN J I agree with the orders proposed by Strickland J, but offer these separate reasons in respect of the two appeals. The father appeals separately from parenting orders (Appeal NOA 72 of 2020) and property settlement orders (Appeal NOA 73 of 2020) made between he and the mother pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit Court of Australia on 21 September 2020. The property settlement orders were later amended on 19 November 2020 in a way which makes no difference to the second appeal. The trial of the proceedings began in September 2013 but, rather extraordinarily, did not finish until September 2019. In that time, the evidence was re-opened twice – in 2018 and 2019 – to deal with changed circumstances and overcome the prejudice caused by the delayed delivery of judgment. Even when judgment was reserved for the third time, another year elapsed before the appealed orders were finally made and the reasons for judgment were published in September 2020. As can be readily appreciated, by the time the appealed orders were eventually pronounced seven years after the trial began, the children had grown from infancy to near adolescence and the parties’ property bore little correlation to that which they owned when proceedings were first started in November 2012. Such gross delay was integral to the appeal. The father contended it impaired the primary judge’s capacity to distil the issues, properly assess the evidence, and make necessary findings, particularly against the background of the parties’ shifting proposals in respect of both parenting and property settlement orders. He exemplified how the exercise of discretion under Pt VII and Pt VIII of the Act had miscarried, proving the reasons for judgment do not withstand the closer scrutiny justified in instances of excessive delay (Paggett & Cable (2015) FLC 93-670 at [2] and [19]).

Ratio Decidendi

Legal Principle Established

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