Maxwell & Miltiadis
[2015] FamCAFC 40
•18 March 2015
FAMILY COURT OF AUSTRALIA
| MAXWELL & MILTIADIS | [2015] FamCAFC 40 |
| FAMILY LAW – APPEAL – Consent Orders – Where the appellant wife appeals final consent orders – Where the appellant’s consent was not in any way vitiated – Where the appellant claims the trial judge merely approved the consent orders without a real consideration of whether the orders were “just and equitable” – Where the appellant argued that the trial judge failed to provide adequate reasons – Whether the trial judge had adequately considered if the proposed orders were “just and equitable”– Whether the trial judge had provided adequate reasons – Where the appeal court held that the trial judge had sufficiently considered the proposed consent orders – Where the appeal court held that a trial judge was not under an obligation to provide reasons where fully informed and consenting parties at arm’s length had agreed to orders by consent – Where the appeal court held that the trial judge provided adequate reasons in the circumstances of the case. |
Anderson & Anderson [1982] FLC 91-251
Harris v Caladine (1991) 172 CLR 84
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Public Service Board of NSW v Osmond (1986) 159 CLR 656
Robinson & Willis (1982) FLC 91-215
Rollings & Rollings [2009] FamCAFC 87
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Maxwell |
| RESPONDENT: | Mr Miltiadis |
| FILE NUMBER: | MLC | 10137 | of | 2013 |
| APPEAL NUMBER: | SOA | 39 | of | 2014 |
| DATE DELIVERED: | 18 March 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Johns JJ |
| HEARING DATE: | 4 March 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | Consent Orders made 29 January 2014 |
| LOWER COURT MNC: | Not Applicable |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr De Vries |
| SOLICITOR FOR THE APPELLANT: | David Stagg Tonkin & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Gates |
| SOLICITOR FOR THE RESPONDENT: | James Harris Lawyers |
Orders
That the appeal be dismissed.
That each party shall bear their own costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maxwell & Miltiadis 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 MELBOURNE |
Appeal Number: SOA 39 of 2014
File Number: MLC 10137 of 2013
| Ms Maxwell |
Appellant
And
| Mr Miltiadis |
Respondent
REASONS FOR JUDGMENT
On the first return date of an initiating application, parenting orders and orders for settlement of property were made by consent. Each of the applicant and respondent was represented by qualified legal practitioners. Through their legal representatives, the parties negotiated over the course of the day. They ultimately signed an agreement which was embodied in the consent orders made.
The orders were made by Judge Riley at about 4.15pm on 29 January 2014. At the time the orders were made the parties continued to be represented by their lawyers and each of the parties was present in court when the orders were made.
The de facto wife[1] appeals the orders for settlement of property made by consent on that day.
[1]For ease of reference, the expressions “wife” and “husband” will be used to describe the Appellant and the Respondent respectively.
For the reasons which follow the appeal should be dismissed.
The Challenge to the Orders
Relevant to this appeal, where the parties had resided in a de facto relationship, the orders provided, in summary: for the real property to be sold; for the wife to be paid a fixed sum of the net proceeds of sale and, if in the event of a shortfall, the husband to make up the balance; and otherwise for the parties to retain personal property and superannuation interests.
There are 12 separate grounds of appeal. Eleven of those 12 grounds are essentially restatements of two related central challenges. It is contended that her Honour could not have been satisfied that the orders were just and equitable as is required prior to the orders being made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Further, or alternatively, it is said that her Honour’s reasons are manifestly inadequate to explain how her Honour arrived at that conclusion.
Those challenges are founded in what was said, and more particularly not said, by her Honour when the orders were made. The proceedings were short and it is convenient to quote them in their relevant entirety, commencing with the then solicitor for the wife announcing the parties’ agreement:
MS CLARK: Your Honour, the parties have reached an agreement today on a final basis. The issues are both parenting and property. In relation to the parenting issues, there’s one child of the relationship, [X], she will be turning eight [in February]. The orders provide time for the child to live with the mother and spend time with the father each alternate weekend, school holiday periods, Greek Easter, Christmas holidays, telephone time and other times as agreed between the parties.
HER HONOUR: Yes.
MS CLARK: In relation to property the parties have agreed to the sale of the matrimonial home in [H Suburb]. They’ve agreed to a settlement of the mother receiving $575,000 as a lump sum payment and for the father to maintain the expenses of the child from now and until the future. The mother has agreed to removing caveats from the property, each party retaining their motor vehicle and superannuation. And there has been a division also of the chattels as well.
HER HONOUR: Yes. So why do you say those proposed orders are just and equitable?
MS CLARK: Your Honour, they provide the mother the ability to live in suitable accommodation. The child [X] has a disability, so the father providing for the expenses of the child are just and equitable in that it allows the mother to be able to care for the child, should the need arise. And certainly, in terms of time spent, the child is able to have a substantial relationship with the father, as there is substantial time provided for the father to spend time with the child.
HER HONOUR: And what’s the value of the assets?
MS CLARK: The total asset pool, your Honour, really hasn’t been determined at this early stage. But it is really the sale of the matrimonial home. There are the father’s interests in properties associated with his … business, which – the properties in itself haven’t been valued. The mother has around $40,000 in superannuation; the father hasn’t disclosed his but he deposes on affidavit that he has no superannuation. So the division itself is – we are unable to put a percentage on it, but it allows for the mother to set up a home and have suitable accommodation for herself and the child.
HER HONOUR: Yes. Did you want to add anything, Mr Yianoulatos?
MR YIANOULATOS: No, your Honour.
HER HONOUR: No. All right. I’m satisfied the proposed orders are just and equitable. So there will be orders by consent in terms of the minute. The applicant’s solicitor to file a clean certified electronic copy within seven days and the copy to be attached to those orders. And I congratulate the parties on reaching a settlement.
MR YIANOULATOS: If your Honour pleases.
HER HONOUR: Thank you.
MS CLARK: If the court pleases.
The Conclusion That The Orders Are Just and Equitable
The orders as made are those that the parties, including the wife who now challenges them, contended for. It is not contended that the orders were made without jurisdiction or power. Agreement was reached after an arm’s length process of negotiation conducted by qualified legal practitioners on behalf of each party. There is no contention that the parties’ negotiation or agreement, or the orders themselves, are vitiated by reason of fraud, duress, undue influence or other circumstance.
All such issues as were live between the parties – evident in the material placed before the court and otherwise – were subsumed by, and merged into, the consent orders. The words of Kirby P (as his Honour then was) are apposite in this context: “[t]he effect of a judgment regularly entered is that the cause of action sued upon merges in the judgment, with the result that the right to create it take the place of the cause of action” (Rollings & Rollings [2009] FamCAFC 87 at [54]).
In terms of setting aside such orders, this Court said in Robinson & Willis (1982) FLC 91-215 at 77,154 that, where, as here, the appeal to this court is by way of rehearing, an appellant:
… Would have to show that in some way [the court below] was wrong in the order [it] made, it would seem to be a highly difficult task for the husband to demonstrate error in a magistrate who had done no more than make the orders he was asked to make by consent. Apart from such exceptional situations as submitting that the magistrate had no jurisdiction or that there was patent injustice in the form of order itself, or by seeking and being granted leave to adduce fresh evidence, it would seem almost impossible; since because of the consensual nature of the orders sought, the magistrate would have given no reasons which could be attacked …
(See also, Anderson & Anderson [1982] FLC 91-251).
Here, the legal practitioners for each of the parties confirmed to her Honour that the orders as submitted were sought by each of the parties and the parties were each in court so as to hear those respective statements made on their respective behalf and it is not suggested that there was any demur from those statements.
Whilst it is a correct statement of law that the making of a consent order relating to settlement of property cannot simply “rubber stamp” the parties’ agreement and that the process is “no mere formality” (Brennan J in Harris v Caladine (1991) 172 CLR 84, 102), the nature or extent of the inquiry required of a judicial officer making a consent order is an entirely different matter.
Therefore as stated by his Honour Dawson J in Harris v Caladine (above) at 124:
… The fact that an order is sought by consent does not relieve a court, or a registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section had been met: see Jenkins v Livesey [1985] AC 424 at 437-444.
To similar effect, Mason CJ and Deane J said that “comparatively little” was required of a judicial officer. In similar vein, Brennan J (at [103]), emphasised that while the making of a s 79 consent order “is not automatic”:
The court may be satisfied that a provision is proper by reference not only to the material before the court relating to the factors mentioned in s 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation into the consent order will be seen to be “proper” …
Here, there is cogent evidence that each of the parties was, “adequately informed”.
Each of the parties had given all such instructions and received all such advice as was necessary for each to file, as is required by the Federal Circuit Court Rules, a financial statement and a short affidavit with, respectively, their Application and Response. Albeit, briefly and by way of overview, those documents manifest the parties’ “conscious[ness] of the factors mentioned in pars (a) to (f)” and them each having “taken them into account” before consenting.
The parties’ agreement, and the consent orders, resulted from a process of negotiation which took place with the assistance of legal practitioners over the course of a day. In the absence of evidence or cogent inference to the contrary, the parties should be taken to have consented “… by reference to the advice respectively …” available to them and the legal practitioners, as officers of the court, should be presumed to have rendered appropriate advice to their respective client.
Counsel placed particular reliance upon statements made by the then solicitor for the mother that the “asset pool hadn’t been determined at this early stage” and that the parties were “unable to put a percentage” on the division of any such asset pool. These factors, it was argued for the wife, showed that her Honour could not have reached the conclusion that the orders were just and equitable.
With respect to counsel, we consider that the submission ignores the well-established legal principle just referred to.
Counsel for the appellant also asserts, correctly, that nothing said by her Honour is to the effect that her Honour had read the material that had been filed on behalf of the parties. Counsel asserts that it ought not be assumed that, in the absence of any further elaboration or reference by her Honour, her Honour had read the material. However, inherent in counsel’s submission is the assumption (or asserted inference) that her Honour had not.
We are not prepared to make that assumption, nor do we consider it proper to do so in the absence of evidence, or clear inference, to the contrary. Neither can be asserted here.
The appellant’s contention has no merit.
Adequacy of Reasons
The requirement to give reasons is “… a normal but not a universal incident” of judicial decisions (Public Service Board of NSW v Osmond (1986) 159 CLR 656 per Gibbs CJ at 667). Reasons are not required “for every decision made by a judicial tribunal” (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247 per McHugh JA (as his Honour then was) at 279). The circumstances of the particular case dictate not only the extent of reasons which need to be given, but whether reasons need to be given at all:
… The duty of the judge [to give reasons] will vary according to the way in which the case is being conducted and according to the reasoning which he has followed. … In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for reasoned consideration of them …
In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons.
(Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSW LR 378 per Mahoney JA at 386).
His Honour’s comments were made in the context of cases involving broader issues but they can, with respect, be seen to have particular resonance in cases where the court is asked to make orders by consent.
Four essential functions have generally been considered to underpin the need to give reasons:
It enables the parties to see the extent to which their arguments have been understood and accepted and the basis for the decision. Second, it furthers judicial accountability. Third, it affords a basis for predicting how like cases might be decided in the future … [authorities and citations omitted] [and] in Beale v Government Insurance Office of NSW (1997) 48 NSW LR 430 … Meagher JA at 441 added a fourth purpose being that it enables “an appeal court to determine whether the trial judge’s verdict was or was not based on an error of law or an appealable error.
(See Rollings & Rollings [2009] FamCAFC 87 at [56] quoting McHugh JA in Soulemezis, above).
Immediately, it will be seen that the requirement to give reasons and, if the requirement be activated, the content of the reasons, must be significantly truncated in the case of an order sought by consent that is not sought to be vitiated by reference to the sorts of factors to which reference was earlier made. There is no necessity for the parties to see the extent to which their arguments have been understood because any such arguments as they might have had have been subsumed by and merged into the consent. There is no issue of judicial accountability, because the court is being asked to do no more than what the parties ask of it. Equally, a consent order which, by definition says nothing about the manner in which a court has decided what may have been conflictual issues between the parties, can say nothing about “predicting how like cases might be decided”.
Once the nature and extent of the court’s duty is understood by reference to the principles emanating from the decision of the High Court in Harris & Caladine (above) – and in the absence of any issues such as referred to in Anderson (above) – it can be seen that it was unnecessary in the circumstances of this case for her Honour to say any more than she did.
The appellant’s contention is without merit.
Conclusion: Grounds 1 to 11
As a result, the challenges encompassed by grounds 1 to 11 have no merit.
Contradictory or Unenforceable Orders?
Separate to the central challenges embraced by grounds 1 to 11 just discussed, ground 12 asserts separately:
12.Her Honour erred in law in making orders, in particular paragraphs 13 and 14 of the Orders made by Her Honour, that were contradictory each with the other, unenforceable and/or confusing.
Paragraphs 13 and 14 of the consent Orders provide:
13.THAT the Applicant and Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at [H Suburb] in the State of Victoria (“the property”) and for that purpose the following apply:
a.The property be listed for Public Auction with such Real Estate Agent as agreed between the parties and failing agreement within 14 days from the date of this Order the Real Estate agent be nominated by the President of the Real Estate Institute of Victoria at the request of the parties or by either of them;
b.The list price of the property shall be such amount as agreed between the parties and failing agreement within 14 days from the date of these Orders the list price to be nominated by the real estate agent;
c.The sale of the property shall be such amount as agreed between the parties and failing agreement an offer to buy the property that is at least 8% of the list price shall be accepted by the parties as a sale price;
d.That upon sale of the property the parties execute the Contract of Sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the Agent or their solicitor;
e.The contract of sale shall provide for completion within 30 days after the date of the contract, otherwise no more than 90 days subject to purchase requirements;
f.The proceeds of the sale of the property shall be paid as follows:
i.To discharge the mortgage number […] to the Commonwealth Bank of Australia,
ii.Payment of the agents commission and advertising and other expenses, if any, payable on the sale,
iii.Payment of legal costs and outlays relating to the sale;
iv.All rates, taxes and other encumbrances associated with the property,
v.Balance to the Applicant up to or on account of $575,000.
14.THAT the Respondent pay the Applicant’s solicitor $575,000 including but not limited to the proceeds of the sale of the property on the day of settlement of the sale of the property.
In circumstances where it is not contended that the orders as made do not reflect accurately the agreement between the parties, we question whether ground 12 asserts appealable error at all; the order now complained of by one party is that which both parties contended for.
No argument was addressed on this point but, in any event, we consider that the challenge should be dismissed as being based on an incorrect premise. Stripped to its bare essentials, the argument appears to be that the expression “$575,000 including but not limited to the proceeds of sale” does not make sense or is otherwise unenforceable. We disagree.
In our view, the plain effect of the orders is as we summarised them earlier in these reasons: the property is to be sold in a specified manner; liabilities and fees are to be discharged and met, and from the net proceeds of sale, the wife shall receive up to an amount of $575,000. If the net proceeds are insufficient to meet that sum, the husband is to pay it to the wife on the day of settlement of the sale. (We should say that we would be surprised if the figure of 8% in sub-paragraph 13(c) of the orders is not a typographical error, but no argument was addressed to that matter).
There is no inconsistency that we can see. There is no unenforceability that we can see. Nor is the order confusing.
The challenge encompassed by ground 12 has no merit.
Conclusion
The appeal should be dismissed.
Costs of the Appeal
The respondent submits that the appellant should pay his costs of and incidental to the appeal. The basis of that application is that the appeal has been wholly unsuccessful.
Taking account of all of the matters which we consider to be relevant pursuant to s 117(2A) including the matter just referred to, but also in particular the relative financial circumstances of each of the parties, we consider it appropriate that no order for costs be made.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 18 March 2015.
Associate:
Date: 18 March 2015
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