FAMILY COURT OF AUSTRALIA
| MELVILLE & MELVILLE (NO. 3) | [2020] FamCAFC 231 |
| FAMILY LAW – APPEAL – CONSENT ORDERS – Where the father appeals from final parenting and property orders made by consent – Where the majority of the father’s argument went to the merits of the consent orders – Where consent orders cannot be appealed from on their merits – Where the father argued he was under duress from his legal representatives – Consideration of Anderson and Anderson (1982) FLC 91-251 – Where the father’s argument as to duress is rejected – Where the father sought to withdraw his consent to the orders after their making but before their entry – Consideration of r 16.05(1) of the Federal Circuit Court Rules 2001 (Cth) – Determination of the scope of and principles relevant to an exercise of discretion pursuant to r 16.05(1) – Where the father’s attempt at withdrawing his consent was communicated by email to the mother’s solicitors and copied to the primary judge’s chambers – Whether the primary judge ought to have called the matter on after receipt of the relevant email – Where such correspondence does not enliven the jurisdiction of the Court – Where it follows that no question of affording procedural fairness to the father ever actually arose – Where the father was not denied procedural fairness – Where, even if the father was denied procedural fairness, it did not have a material effect – Appeal dismissed – Order that the father pay the mother’s costs fixed in the amount of $10,000. |
| Family Law Act 1975 (Cth) ss 60CC, 60B, 61AD, 65D(2), 65DD, 79A, 93A(2), 94AAA Family Law Rules 2004 (Cth) r 17.01 |
| Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 Allan & Allan (2014) FLC 93-606; [2014] FamCAFC 162 Anderson and Anderson (1982) FLC 91-251; [1982] FamCA 36 Ashby v Slipper (No 2) (2014) 314 ALR 84; [2014] FCAFC 67 Ashby v Slipper (No 3) (2015) 317 ALR 623; [2015] FCAFC 9 Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) (2012) 287 ALR 685; [2012] FCAFC 72 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 Callis & Callis [2019] FamCA 750 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 Holland and Holland (1982) FLC 91-243; [1982] FamCA 31 Lenova & Lenova (Costs) |
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- Case
- [2020] FamCAFC 231
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the FCC Rules allowed for the revocation of consent after the orders had been entered, and if so, whether the father's attempt to revoke his consent was valid. Specifically, the court had to determine the distinction between the making of an order and the entry of an order, as well as the implications of Rule 16.05(1) of the FCC Rules, which allows for the variation or setting aside of orders before they are entered. The court also needed to consider the procedural requirements for the entry of orders as outlined in Rules 16.07 and 16.08.
The court found that the distinction between the making of an order and the entry of an order is significant under the FCC Rules. Orders must be entered if they take effect on signing, are to be served, enforced, or if an appeal has been instituted, among other conditions. However, orders that merely extend time, grant leave, or give procedural directions do not need to be entered. The court concluded that the orders in question were required to be entered as they fell under the conditions specified in Rule 16.07(1). The method of entry, through the electronic signature of the Principal Registrar as per Rule 16.08(1)(b)(ii) and Rule 16.08(1A), was held to be valid. Given this distinction, the court held that the father's attempt to revoke his consent after the orders were entered was ineffective.
The court dismissed the appeal and upheld the parenting and property orders made by the FCC. The appellant was ordered to pay the respondent's costs of and incidental to the appeal in the sum of $10,000 within three months of the date of the order.
Orders
Orders of the court
1.
That save for the appellant’s email to the Federal Circuit Court of Australia dated 22 October 2019 which is admitted as further evidence on appeal, the Amended Application in an Appeal filed on 12 March 2020 be dismissed.
2.
The appeal from the parenting orders made on 10 October 2019 and the property orders made on 10 October 2019 (amended on 23 October 2019) in the Federal Circuit Court of Australia be dismissed.
3.
Within three (3) months of the date of these Orders the appellant pay to the respondent her costs of and incidental to the appeal in the fixed sum of $10,000.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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