Meadows & Meadows (No. 5)
[2021] FamCAFC 42
•31 March 2021
FAMILY COURT OF AUSTRALIA
Meadows & Meadows (No. 5) [2021] FamCAFC 42
Appeal from: Order made by a judge of the Family Court of Australia on 10 February 2021 (in chambers)
[2020] FamCA 864
Appeal number(s): EAA 20 of 2021
EAA 30 of 2021File number(s): PAC 3509 of 2013 Judgment of: AINSLIE-WALLACE, RYAN & ALDRIDGE JJ Date of judgment: 31 March 2021 Catchwords: FAMILY LAW – APPEAL –PROCEDURAL – Appeal against dismissal of a review of Registrar’s decision – Failure to give reasons – Error of law – Necessity to give reasons – Appeal allowed – Re-exercise of discretion – Review application dismissed.
FAMILY LAW – APPEAL – PROCEDURAL – Error in section referred to in vexatious proceedings order – Section 102QD and s 102QE of the Family Law Act 1975 (Cth) – Oral application for extension of time to file Notice of Appeal – Leave granted on limited basis – Appeal allowed in part – Re-exercise of discretion – Vexatious proceedings order varied.
Legislation: Family Law Act 1975 (Cth) ss 102QB, 102QD, 102QE, 102QG, 106A
Family Law Rules 2004 (Cth) Pt 18.2, rr 9.01, 17.02, 18.10
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Dautry & Wemple (No. 2) [2015] FamCAFC 248
Gorman & Huffman and Anor [2016] FamCAFC 174
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378
Jubb and Jubb [2003] FamCA 751
Meadows & Meadows (No. 3) [2020] FamCAFC 124
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Steffan (1993) 30 NSWLR 633
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tallant & Tallant (2017) FLC 93-789; [2017] FamCAFC 115
Upadhyaya v R [2017] NSWCCA 162
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24
Division: Appeal Division Number of paragraphs: 62 Date of hearing: 25 March 2021 Place: Sydney (via video link) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
EAA 20 of 2021
EAA 30 of 2021
PAC 3509 of 2013APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS MEADOWS
Appellant
AND: MR MEADOWS
Respondent
ORDER MADE BY:
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ
DATE OF ORDER:
31 MARCH 2021
THE COURT ORDERS THAT:
Appeal EAA 20 of 2021
1.The appellant have leave to appeal from the order of a judge of the Family Court made on 10 February 2021.
2.The appeal against the order made on 10 February 2021 is allowed and that order is set aside.
3.The Application in a Case filed on 17 December 2020 to review a decision of a Registrar is dismissed.
Appeal EAA 30 of 2021
4.Dispense with compliance with any Rule or Regulation so as to allow Appeal EAA 30 of 2021 to be heard, including the payment of any filing fee.
5.The time for the appellant to file a Notice of Appeal against Order 1 made by a judge of the Family Court on 14 October 2020 is extended to 25 March 2021, such leave being limited to a challenge to the validity of so much of Order 1 made on that day as refers to the requirement to seek leave pursuant to s 102QD of the Family Law Act 1975 (Cth) before initiating proceedings are commenced.
6.The appeal against the validity of Order 1 made on 14 October 2020 is allowed and that order is varied as follows:
The mother is prohibited from instituting proceedings under the Family Law Act1975 (Cth) (“the Act”) against or in relation to the father [Mr Meadows] or the child [B] without first having been granted leave to commence that proceeding pursuant to section 102QE of the Act.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ:
Since about 2013 Ms Meadows (“the wife”) and Mr Meadows (“the husband”) have been engaged in proceedings in this Court. There is one child of the parties’ relationship, B who was born in 2011 (“the child”).
On 30 July 2019 a judge of the Family Court made final parenting and property settlement orders, the effect of which was that the child live with the husband and to spend time with the wife.
The property settlement orders broadly divided the then available property of the parties or either of them as to 55 per cent to the husband and 45 per cent to the wife. Principally, the property identified by the primary judge as being available for division was the parties’ former marital home at Suburb P and the husband’s superannuation entitlements.
The property settlement orders provided that the husband pay $200,000 to the wife within a specified time and he was to retain the marital home. The husband was required to indemnify the wife in respect of the mortgage over the property and all further claims, demands and actions arising from the marital home. If the husband was unable to pay that sum to the wife, the Suburb P property was to be sold and the payment to be made from the proceeds of sale.
The wife appealed these orders and on 26 May 2020, the Full Court dismissed the wife’s challenges to both the parenting and property settlement orders (Meadows & Meadows (No. 3) [2020] FamCAFC 124).
On 14 October 2020, on the husband’s Application in a Case filed on 12 June 2020, another judge of the Family Court made an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) to prohibit the wife from instituting proceedings under the Act against or in relation to the husband or the child (“vexations proceedings order”). We will return to the actual effect of that order later in these reasons.
The wife did not appeal these orders.
On 13 November 2020 the husband filed an application pursuant to s 106A of the Act to have a Registrar of the Family Court do all necessary acts and sign documents in the wife’s name to request the Real Estate Institute of New South Wales to appoint an agent to sell the martial home.
On 10 December 2020 the wife attempted to file a response to the husband’s application. In that document, the wife responded by seeking additional orders in relation to the appointment of a real estate agent, that the information given to the Real Estate Institute of New South Wales include a valuation of the marital home at $640,000.
In that response however, the wife also sought orders discharging the vexatious proceedings order made on 14 October 2020, orders to clarify existing parenting orders, and orders providing for additional time with the child in the Christmas holiday period.
On 16 December 2020 a Registrar of the Court refused to accept the wife’s response for filing.
On 17 December 2020 by letter under the hand of the Acting Registry Services Team Leader (not the Registrar who rejected the filing of the response), the wife was notified of the Registrar’s decision and the reasons as to why it was rejected for filing. The reasons set out in that letter are as follows:
…
a.The Response purports, among other matters, to respond to an Application in a Case filed pursuant to Rule 20.53 of the Family Law Rules. An Application in a Case filed in accordance with this Rule may be made, without notice to the respondent to that Application and is by way of Enforcement of Financial Orders and Obligations;
b. The Response (and amendments) seek orders beyond those to which the Application in a Case relates;
c. [Ms Meadows] has been declared vexatious;
d.[Ms Meadows] must first seek leave pursuant to section 102QE of the Family Law Act, separately and apart from any other orders the [sic] she may seek in a Response and/or any other Application);
e.A party may apply for interim, procedural or ancillary orders in relation to a cause of action only if, among other things, the party has made an application for final orders in that cause of action (Rule 5.01 FLR).
…
(As per the original)Notwithstanding that this letter was clearly sent to the wife (as she annexed it to her application for review of the Registrar’s decision), there is no record or note on the Court file which reflects the Registrar’s decision and reasons for that decision. That is not to say that the order was not made nor that the reasons proffered in the letter do not reflect the Registrar’s reasons, just that the Court record, seems to us, to be incomplete.
REVIEW OF THE REGISTRAR’S DECISION
On 17 December 2020 the wife filed an Application in a Case for a review of the Registrar’s decision.
Part 18.2 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a party may seek a review of a decision made by a Registrar.
Rule 18.10 sets out how that review is to be conducted.
(1)A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
Note:In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing;
(b) any further affidavit or exhibit;
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
On 10 February 2021 the primary judge heard and dismissed the wife’s application for review. His Honour gave no reasons for the decision. The preamble to the orders indicates that the matter was dealt with in chambers.
The orders of the primary judge are as follows:
IT IS ORDERED THAT
1.The Application for Review comprised in the Response to an Application in a Case (“the Response”) dated 17 December 2020 by [Ms Meadows] (“the Applicant for Review”) in relation to the order of [a Registrar] dated 16 December 2020, and the remaining orders sought in the Response, be dismissed.
IT IS NOTED THAT
A.On 14 October 2020 orders were made by [a judge of the Family Court]. Order 1 provides that the Applicant for Review (referred to as the mother in the said order) is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the father [Mr Meadows] or the child [B] without first having been granted leave to commence that proceeding pursuant to section 102QE of the Act.
B. Order 2 of the said orders states:
This vexatious proceeding order does not apply to:
(a)Any cost application of the mother arising from these Orders and filed time prescribed under the Family Law Act 1975 (Cth) and the Family Law Rules 2004;
(b)Any appeal from these Orders provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by order of the Full Court;
(c)An application made by the mother to the Family Court to provide the mother with a copy of the transcript of proceedings heard before [a judge of the Family Court]; and
(d)The filing of a response or affidavit in reply by the mother.
C.The Response filed by the Applicant for Review purports to respond to an application made pursuant to rule 20.53 of the Family Law Rules 2004 but the said rule states that the application may be made without notice to the Respondent.
D.Insofar as the Registrar was nonetheless required to consider the Response the learned Registrar was entitled to reject the Response because the orders sought extend well beyond the orders to which the Application in a Case relates, and the orders referred to at A and B above preclude any further attempt to seek orders in the absence of leave being granted under s 102QE of the Act. This Court has formed the same view.
E.In any event, the orders made by [a Registrar] on 14 January 2021 have effectively dealt with the Application in a Case filed by [Mr Meadows] on 13 November 2020 and the Application for Review would be futile in the circumstances.
F.Pursuant to rule 11.16 of the Family Law Rules 2004, this matter is determined in Chambers after having had regard to the written documents provided by the Applicant for Review entitled ‘Written Summary of Argument and List of Authorities Review of a Registrar’s Decision’, and ‘Minute of Orders’.
(As per the original)
We observe that Notations A, D and E misstate the facts. The vexatious proceedings order referred to in Notations A and E, provided that the wife seek leave to institute proceedings pursuant to s 102QD, not s 102QE of the Act. Further, no orders were made on 14 January 2021 (Notation E).
On 8 March 2021 the wife filed a Notice of Appeal seeking leave to appeal that order and if leave is granted, to appeal from the primary judge’s order.
THE APPEAL
The wife asserts 16 grounds of challenge to the primary judge’s order. It is unnecessary for us to consider them because for reasons which follow, we are of the view that the appeal must be allowed because of his Honour’s failure to give reasons for his decision. For the same reasons the wife should have leave to appeal the primary judge’s order.
However, before reaching that point, it is important to observe that the review was attended by an unfortunate irregularity.
Notation F to his Honour’s orders refers to his having taken into account “‘Written Summary of Argument and List of Authorities Review of a Registrar’s Decision’, and ‘Minute of Orders’”.
Those documents were not marked as exhibits nor were copies of them placed on the Court file. We are thus not in a position to understand what submissions were made by the wife in support of the application for a review.
That a matter may be dealt with in chambers does not obviate the need for proper adherence to regular court processes. Just as reasons for decision are necessary to inform the parties and assist them to understand the decision made, so too it is necessary that documents considered in the decision making process are identified and become part of the record of the court.
Necessity to give reasons
As we have said, the primary judge gave no reasons for his decision to dismiss the wife’s application.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, McHugh JA said:
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
Moffitt JA’s reflection of this issue in Pettitt v Dunkley [1971] 1 NSWLR 376 at 392 remains as potent today as it was then:
… where it appears there has been a failure for whatever reason to perform the judicial duty to give reasons, so that a litigant is denied the right which he has to correct on appeal an error of law, there has been a miscarriage of justice and an error of law…
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378 at 386, Mahoney JA said:
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.
These principles have long been applied in the Family Court and in Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267 the Full Court referred to and adopted the principles articulated in the cases to which we have already referred.
It might be inferred that the matters set out in the notations to the orders were intended to represent his Honour’s reasons. If so that would be a most unusual way of recording and publishing reasons.
It is sufficient for present purposes to say that, given the nature of the review and the importance of the subject matter, and because the provision of reasons is a necessary incident of the judicial process (see for example the discussions in Wainohu v New South Wales (2011) 243 CLR 181 at [54]–[58] and Upadhyaya v R [2017] NSWCCA 162 where the point was described at [84] as “trite” law) we consider that formal reasons, clearly identifiable as such, should have been given.
Notations to orders
It is appropriate that we say something about notations to the primary judge’s orders because, as can be seen, his Honour’s order dismissing the wife’s application was attended by a number of notations.
The Court in R v Steffan (1993) 30 NSWLR 633 at 636 aptly pointed out:
… A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done)…
Unlike an order, a notation is not amenable to appeal (Dautry & Wemple (No. 2) [2015] FamCAFC 248 at [67]). Notations may be used to give context to the orders made, for example to record the wishes and intentions of the parties (Jubb and Jubb [2003] FamCA 751 at [43]) or reflect that parties had reached agreement about matters in terms of settlement (Tallant & Tallant (2017) FLC 93-789 at [65]).
In Gorman & Huffman and Anor [2016] FamCAFC 174, Murphy J said:
287.… So, too, the nature of parenting orders may permit of notations that give context to orders which, by their terms, do not self-evidently reveal that context. Notations cannot, however take the place of or be seen as, orders.
This is not the occasion however, to examine the metes and bounds of the proper content of notations and whether it is permissible for reasons to be delivered in this form because we did not receive submissions on that point.
Suffice it to say here, that in failing to give reasons, notwithstanding what was said in the notations, his Honour failed to give effect to “a necessary incident of the judicial process”.
The appeal will be allowed and the primary judge’s order of 10 February 2021 set aside.
Disposition of the application for review
The further disposition of the matter is not without its complications.
As we have said, the husband filed an application on 13 November 2020 seeking an order that a Registrar execute a document requesting the Real Estate Institute of New South Wales to appoint an agent to sell what had been the parties’ marital home.
On 14 January 2021 a Registrar signed such a document in the wife’s stead. That this was done appears from a document headed “Order” which, in fact, contains no orders, neither is it sealed nor entered as an order, but is a series of notations, one of which is:
…
3.I note that I have executed documents entitled “Real estate Institute of NSW presidential Appointment Application Form” to s 106A, copies of which are filed herein, marked “Ex 1” and initialled and dated by me.
(As per the original)
By emails sent to the parties (copies of which are absent from the court file), it seems that the executed request was sent to the Real Estate Institute of New South Wales but rejected by them as it is necessary for each party to the request to agree to the terms and conditions incidental to the appointment. On 19 January 2021, a Case Coordinator wrote to both parties notifying them that the document could not be executed by a Registrar because agreement to those terms and conditions was not within the scope of s 106A of the Act.
We were informed by the husband and it is apparently undisputed that, in any event, the request to the Real Estate Institute of New South Wales to appoint an agent was signed by both parties, obviating the need for recourse to a Registrar to execute a document.
Notwithstanding that the husband’s application has, for all practical purposes, been disposed of, the wife argued that her response and, in particular, the orders seeking further parenting orders and to set aside the vexatious proceedings order, should be permitted to continue and be heard.
She argued that the delay in selling the former marital home had caused her financial difficulties which also impacted the child and thus her application for parenting orders falls squarely within the ambit of the husband’s application.
Rule 9.01(3)(c) of the Rules provides that a response to an Initiating Application may, amongst other things, seek orders in a different cause of action.
Here, however, the husband’s application presented itself as an opportunity for the wife to, in effect, bring an Initiating Application for parenting orders in the guise of a response to circumvent the vexatious proceedings order and to that end, it must be regarded as an abuse of process.
Thus, we will re-exercise the primary judge’s discretion and for the reasons that we have set out, we will dismiss the wife’s application for review of the Registrar’s decision.
VEXATIOUS PROCEEDINGS ORDER OF 14 OCTOBER 2020
This brings us, somewhat circuitously to the orders of 14 October 2020. It is necessary to set out the terms of the Order to provide context for what follows:
1.The mother is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the father [Mr Meadows] or the child [B] without first having been granted leave to commence that proceeding pursuant to section 102QD of the Act.
The power to make a vexatious proceedings order is found in s 102QB of the Act. Where such an order is made, s 102QE provides the means whereby a person prohibited may seek leave of the Court to commence proceedings and s 102QG is concerned with the granting of leave, it having been sought.
Where a person who is subject to a vexatious proceedings order, and where, in contravention of that order, the person commences proceedings (without seeking or being granted leave to do so) s 102QD sets out sanctions which may follow such a contravention.
Returning then to Order 1 made on 14 October 2020, it is immediately apparent that the ability to seek leave to commence proceedings is not found in s 102QD. The effect of the order is that the wife is prohibited from instituting proceedings with no capacity to seek leave because leave can never be granted by recourse to s 102QD.
However, the primary judge’s reasons and the explanatory notations make it tolerably clear that her Honour’s reference to s 102QD is a mistake. Notation 3 refers to s 102QD and sets out the consequences that may flow where proceedings are instituted other than with leave, equally Notation (3)(e) correctly makes reference to s 102QE as the means by which leave may be sought.
Having identified the apparent irregularity in the vexatious proceedings order, at the instigation of the Full Court, on 17 March 2021, the Appeal Registrar wrote to both parties in the following terms:
I write in relation to the application for leave to appeal and the consequential appeal listed for hearing before the Full Court on 25 March 2021.
It has been noticed that Order 1 dated 14 October 2020 appears to be irregular in that it:
•does not identify the provision under which the order is made; and
•requires that leave be obtained pursuant to s 102QD of the Family Law Act before proceedings are commenced under the Act; however
•s 102QD does not authorise a grant of leave.
Please be advised that at the appeal hearing you will be asked to make submissions about the effect, if any, on the validity and operation of the aforementioned Order 1.
For your assistance I refer you to Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153.
During the appeal against the dismissal of the wife’s review of the Registrar’s order, the irregularity in the order was raised and discussed with both parties.
It is clear from the orders sought in the wife’s response and in her submissions on the appeal that she wishes to have the vexatious proceedings orders set aside in their entirety and that she proposed this could be done by recourse to r 17.02 of the Rules. That rule provides for the variation to or setting aside of orders in certain circumstances, one such circumstance is what is known as “the slip rule” that is where there is an error in the order arising from an accidental slip or omission (r 17.02(1)(h) of the Rules).
It was open to the wife to approach the judge who made the orders and seek amendment to the order pursuant to r 17.02(1)(h), however, as we have said, her principal object is to have the order set aside in its entirety.
Consistent with her desire to have the vexatious proceedings orders discharged, when discussing an appeal against the order, the wife pressed for an extension of time to appeal the orders and for the appeal to challenge their making.
We were not prepared to permit her to do that, although we granted an extension of time to appeal limited to the issue of the irregularity in Order 1 made on 14 October 2020 as it relates to the wife seeking leave to initiate proceedings.
In the result, at the Court’s invitation, the wife sought an extension of time in which to appeal the orders of 14 October 2020, and to challenge the order to the extent that it refers to the incorrect provision by which she may seek leave to institute proceedings.
As we have said, the reference in Order 1 made on 14 October 2020 is an error. The consequence of which is the wife would never be able to seek leave to commence proceedings. That was plainly not the primary judge’s intention nor is it consistent with the purport of the section itself.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Ryan & Aldridge. Associate:
Dated: 31 March 2021
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