Melville and Melville (No. 3)
[2020] FamCAFC 231
•18 September 2020
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) [2011] FamCAFC 141 Mawson & Coates (2014) FLC 93-610; [2014] FamCAFC 186 Maxwell & Miltiadis (2015) FLC 93-644; [2015] FamCAFC 40 Melville & Melville [2020] FamCAFC 52 Mordech & Mordech [2018] FamCAFC 15 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Pearce & Pearce [2016] FamCAFC 14 R v Bevan Ex Parte Elias (1942) 66 CLR 452; [1942] HCA 12 Robinson and Willis (1982) FLC 91-215; [1982] FamCA 16 Smith and Smith (1984) FLC 91-512; [1984] FamCA 8 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6 |
| APPELLANT: | Mr Melville |
| RESPONDENT: | Ms Melville |
| INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
| FILE NUMBER: | BRC | 4044 | of | 2017 |
| APPEAL NUMBER: | NOA | 98 | of | 2019 |
| DATE DELIVERED: | 18 September 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 16 June 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 October 2019 (Property); 10 October 2019 (Parenting) |
| LOWER COURT MNC: | [2019] FCCA 3417 (Property); [2019] FCCA 3323 (Parenting) |
REPRESENTATION
| THE APPELLANT: | Self-represented via telephone |
| COUNSEL FOR THE RESPONDENT: | Mr Laing via telephone |
| SOLICITOR FOR THE RESPONDENT: | Robbins Watson Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dart via telephone |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders
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.
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.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Melville & Melville (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 98 of 2019
File Number: BRC 4044 of 2017
| Mr Melville |
Appellant
And
| Ms Melville |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
This is an appeal from final property and parenting orders which were made by consent.
The trial of contested property and parenting proceedings between Mr Melville (“the father”), Ms Melville (“the mother”) and the Independent Children’s Lawyer appointed to represent their children’s interests in the parenting proceedings (“the ICL”) proceeded over six days on 27 and 28 February, 1 March and 8, 9 and 10 October 2019. For the first three days of trial the father was self-represented, but he was legally represented by solicitors and counsel for the balance of the trial and at the times the subject consent orders were made.
On the sixth day of trial, 10 October 2019, the primary judge, at the request of the parties and their respective legal representatives, made parenting orders by consent rendering it unnecessary for the primary judge to adjudicate the dispute.
The orders embodied an agreement between the parties negotiated over a period from the afternoon of the fifth day of trial until the hearing before the primary judge which commenced at 12.12 pm on 10 October 2019. As noted, each of the parents was represented by solicitors and counsel and each were present at that hearing during which the primary judge received submissions as to the orders. As already noted, the children’s interests in the proceedings were represented by an ICL and counsel for the ICL made submissions concerning the making of the parenting orders.
The primary judge delivered some short reasons for making the consent parenting orders. As those reasons reflect, the trial had been adjourned early on the previous day to allow the parties to engage in negotiations leading ultimately to the subject orders being made by consent. As those reasons for judgment also reflect, the consent orders were entered into after the case of each parent at trial had closed and thus after each parent had been cross-examined at trial.
The transcript reflects that the hearing in relation to the making of the parenting orders concluded at 12.58 pm on 10 October 2019. At 4.10 pm on 10 October 2019 the primary judge, again at the request of the parties and their respective legal representatives, also made final property orders by consent (amended on 23 October 2019). Again the making of those orders was accompanied by the delivery of some short reasons for judgment in the context of the temporal connection between the trial and the making of those orders.
The parenting orders relevantly provide for, in summary:
a)The mother to have sole parental responsibility but with an obligation to inform the father of any decision she makes in the exercise of such parental responsibility;
b)The parties’ two children to reside with the mother and spend time with the father for up to six hours each fortnight either at a Contact Centre or, with the approval of that Centre, off-site with supervision;
c)The children to have telephone contact with the father each Tuesday and Sunday between 5.00 pm and 5.30 pm;
d)An Airport Watchlist order preventing the father from removing the children from Australia; and
e)That the father be permitted to apply for the discharge of the supervision requirement and Airport Watchlist order after a period of 18 months from the date of the order.
The property orders relevantly provide for, in summary:
a)The mother to retain property worth $89,452 plus the net proceeds of sale of a property (expected to be approximately $567,000); and
b)The father to retain property worth $475,191.
That represents a division of the available property interests of approximately 58 per cent in value to the mother and 42 per cent in value to the father.
By Notice of Appeal filed on 31 October 2019, the father appeals from almost all of the parenting orders and he appeals from all of the property orders.
I note that I am exercising the appellate jurisdiction of the Family Court of Australia, as a single judge, pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Challenging consent orders on appeal – relevant principles
The father represented himself in the appeal. He has no relevant legal training or experience. With all due respect to the father, many of the arguments he sought to advance on appeal, and in support of his application to adduce further evidence on appeal, misconceived the limited scope for appellate review of orders which have been made by consent. It is well settled that whilst an order made by consent may be the subject of an appeal, the order may not be challenged by an appeal which is directed to the correctness of that order; that is, it cannot be appealed from on the merits.[1] In Robinson and Willis, Fogarty J observed:
… The important qualification is that as a consent order is made as a consequence of the consent of the parties to the Court making that order and not of an adjudication by the Court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is, it cannot be appealed against on the merits. However other grounds of appeal remain available as for example fraud, mistake, fresh evidence, absence of jurisdiction …
(As per the original)
[1] Smith and Smith (1984) FLC 91-512 (“Smith and Smith”) and Robinson and Willis (1982) FLC 91-215 (“Robinson and Willis”).
With respect to property orders made by consent the Full Court of this Court in Maxwell & Miltiadis (2015) FLC 93-644 (“Maxwell & Miltiadis”) observed, with reference to the decision of the High Court in Harris v Caladine (1991) 172 CLR 84 (“Harris v Caladine”) as follows:
12.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.
13.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.
14.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” …
It must also be recognised with respect to property orders that there is an important distinction between variation or the setting aside of orders on an appeal under s 94AAA of the Act, and the variation or setting aside of property orders under s 79A of the Act. That distinction looms in this case because, as will be further discussed, the father seeks to agitate the complaint that his entry into the consent orders was the product of him being subjected to “duress” by his own legal representatives. It is s 79A(1)(a) of the Act which provides an avenue for redress when a miscarriage of justice by reason of duress is established, as distinct from an appeal requiring the demonstration of error on the part of the primary judge.
As will be further discussed, one of the complaints the father advances on appeal is that his consent to both the parenting orders and the property orders was brought about by “duress” exerted upon him by his own legal representatives.
In Anderson and Anderson (1982) FLC 91-251 (“Anderson’s case”) Lindenmayer J, exercising the appellate jurisdiction, considered a case where the husband alleged that he was overborne by pressure exerted by his legal representatives and that his consent to the Court’s order (for property settlement and lump sum maintenance) was induced by that pressure and by other stresses which he was under at that time. Lindenmayer J referred to Robinson and Willis and statements to the effect of the difficulty of demonstrating error on the part of, in that case, a Magistrate who “had done no more than make the orders he was asked to make by consent”. In relation to the allegations advanced by the husband in that case concerning pressure from his legal representatives, Lindenmayer J observed, at 77,386:
He alleges only that he was overborne by pressure exerted upon him by his counsel and solicitor outside the Court, and that his consent to the compromise recorded in and given effect to by the Court’s orders was induced by that pressure, and by other stresses which he was under at that time… His case simply is that his counsel and solicitor put pressure upon him to consent to orders in the terms made and he now regrets that consent and those orders. In my opinion, that is no basis for an appeal against the orders so consented to.
Counsel and solicitors representing clients involved in litigation in the Courts frequently subject their clients to considerable pressure to compromise that litigation. That is a necessary and proper part of the function of such legal representatives in the proper discharge of their duties to their clients and the Court. If every such compromise were to be open to attack by way of appeal by the client who subsequently thought better of it, there would be no end to litigation in this or any other Court. If in any particular case a client under no legal disability has been so overborne by his legal representative that such representative has breached the duty which he owes to the client in relation to the litigation then in train, and I hasten to add that I make no finding of any such breach in this case, then the client’s proper remedy, in my opinion, lies elsewhere than in an appeal against the orders made with his consent in that litigation.
The legal representative is the agent of the party, and the party is bound by the acts of his agent so long as they are within the agent’s actual or ostensible authority (Harvey v. Phillips (1956) 95 C.L.R. 235). In this case, on the evidence, the consent given by counsel on the husband’s behalf to the orders of 19 April 1982 was not only within his ostensible authority, but was also within his actual authority as counsel retained to represent the husband on that occasion…
In my opinion, therefore, the husband has failed to show any substantial issue to be raised in his proposed appeal, and his application must therefore be dismissed.
The application of these principles provides a ready answer to the father’s complaints on appeal directed to the merits of the subject orders and the father’s complaints asserting error on the part of the primary judge, which proceed on the misconceived premise that the subject orders were the product of adjudication by the primary judge, as distinct from the consent of the parties. This will be discussed further in addressing specific complaints.
The father’s challenges on appeal
The father filed his Notice of Appeal on 31 October 2019. On 10 March 2020, the matter came before me on an application filed by the father for dispensation of the requirement that he provide the entirety of the transcript. I delivered reasons and made orders which provided for the father to listen to the audio recording of the trial in order to ascertain which parts of the transcript he wished to rely on.[2] I made it clear on that day, and the father indicated that he understood, that the father would be precluded from advancing any arguments on appeal which required the Court to consider transcript, if the relevant parts of the transcript were not put before the Court.
[2]Melville & Melville [2020] FamCAFC 52.
Likewise, on that hearing, I raised with the father the inconsistency between his grounds of appeal as pleaded in his Notice of Appeal and those as argued in his Summary of Argument. Ultimately, the father indicated that he wished to agitate only those grounds advanced in his Summary of Argument and to the extent these differed from the complaints in his Notice of Appeal, his Notice of Appeal was not pressed.
The matter next came before me on 26 March 2020 for the hearing of the father’s substantive appeal. However, due to the lateness of some material filed and, more fundamentally, a question regarding the potential application of rr 16.05 and 16.08 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), as will be discussed, the hearing was adjourned with orders made requiring each party to file further written submissions. On 16 June 2020, the hearing of the substantive appeal proceeded.
By reference to the principles already discussed as to the limited scope for challenging orders made by consent, it can be seen that much of what the father advances in his Summary of Argument filed on 11 February 2020 is directed to illegitimate challenges to the correctness of the consent orders. By way of example, the father contends that the primary judge failed to give proper consideration to s 79 of the Act when making the property orders. In light of the authorities referred to, in particular the statements of principle in Harris v Caladine, such a complaint cannot be advanced in the face of both parties being legally represented at the time of making the consent orders; both being present in Court when the orders were made; and the fact that the primary judge recorded at the time her satisfaction as to the appropriateness of the orders and invited submissions if any party had any issue to raise with respect to the orders, in the context of the primary judge having presided over the trial to that point.
Further, the father contends that the primary judge erred in not receiving submissions from the parties as to the justice and equity of the property orders or the appropriateness of the parenting orders. However, such a submission is contrary to the transcript of the proceedings on 10 October 2019 which details the submissions made to the primary judge by counsel for the ICL,[3] as well as the primary judge’s engagement with both counsel for the mother and father about the appropriateness of the orders.[4]
[3]Transcript 10 October 2019, p.2 lines 3–43.
[4]Transcript 10 October 2019, p.3 line 1 to p,7 line 38.
Moreover, the father advances complaints of apprehended bias on the part of the primary judge as to, for example, the manner in which the primary judge dealt with affidavit evidence of the respective parties during the course of the trial. It is unnecessary to traverse these complaints for the simple reason that ultimately the subject orders were made by consent and were not the product of adjudication by the primary judge. Her Honour was not called upon to decide the issues either in the parenting proceedings or the property proceedings, such that it cannot be said that lack of impartiality on the part of the primary judge could have played any part in the making of orders made at the request of, and with the consent of the parties. Each of the parties sought that the primary judge make the orders ultimately made and the primary judge simply acceded to that request. Thus, it can be seen that the father’s complaints of bias are entirely misconceived, and are rejected.
The central arguments advanced by the father on appeal, which are not directed to the merits of the orders made are, first, his contention that he withdrew his consent prior to the making of the subject orders and, second, his contention that he was under duress from his legal representatives to sign the consent orders. Before dealing specifically with these challenges it is necessary to deal with the father’s application to adduce further evidence on appeal.
Amended Application in an Appeal to adduce further evidence
On 12 March 2020, the father filed an Amended Application in an Appeal by which he sought to adduce further evidence. That further evidence is as follows:
A. Draft Parenting Orders dated 10 October 2019.
B. Draft Financial Orders undated.
C. Email sent on 22 October 2019 withdrawing consent to Parenting and Property Orders.
D. [Queensland Police] letter dated 19 December 2019.
E. Emails and letters sent to [the mother’s solicitors] asking them to comply with FCC Order 1 dated 23 January 2019.
F. Email [the father] sent to [the mother’s solicitors] dated 24 January 2019 disclosing [the father’s] finacials [sic].
G. A new Financial Statement.
H. Doc No 26.
I. Doc No 24, paragraphs 108-119 and annexure CM-PPP.
J. Doc No 36, page 102, annexure CMR-P (the last page of document).
K. Transcript dated 25 November 2019 before [the primary judge] in the Commonwealth Federal Circuit Court at Brisbane.
(As per the original)
The Court’s power to receive further evidence is contained in s 93A(2) of the Act and is governed by the principles espoused in CDJ v VAJ (1998) 197 CLR 172 where McHugh, Gummow and Callinan JJ said:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision. In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
The draft parenting and property orders are contained in those respective documents handed to the primary judge on 10 October 2019, signed by each party, which formed the orders the subject of the appeal. The father seeks to rely on those to evidence what he asserts to be discrepancies between those documents and the orders ultimately made. For example, the father contends that the word “facetime” is missing from Orders 6 and 7 of the orders actually made by the primary judge, which orders relate to the telephone communication the children are to enjoy with the father. Similarly, the father contends that Order 11, which grants the father leave to provide certain Family Reports to his health care providers, contains an incorrect date. The father’s grievances with alleged discrepancies in relation to the property orders are, with respect to the father, similarly trivial. Such matters are readily capable of correction by the primary judge’s application of the slip rule. They do not form a foundation for appellable error and, so, these documents will not be received.
There was no objection to the Court receiving the email sent by the father on 22 October 2019 to the primary judge’s chambers purporting to withdraw his consent to the subject orders. The Court will receive that document as further evidence on appeal.
I will consider the letter dated 19 December 2019 from the Queensland Police, the emails sent to the mother’s solicitors and the father’s latest Financial Statement together. Those documents are intended by the father to support his contention that the primary judge erred in her consideration of the merits of the orders. That is, he contends that the primary judge failed to properly consider the father’s financial position, that his conviction had been quashed and that the mother had, on the father’s case, failed to comply with certain interim property orders. Given it is not open to a party to appeal the correctness of consent orders,[5] such arguments are not available to the father on appeal. The Court will not receive these documents by way of further evidence on appeal.
[5] See, for example, Robinson and Willis at 77,161 per Fogarty J; Smith and Smith; Allan & Allan (2014) FLC 93-606 at 79,507 and Maxwell & Miltiadis at 80,218.
In relation to those documents the father refers to as “Doc No 26”, “Doc No 24” and “Doc No 36”, I confirmed with the father on 16 June 2020 that those are references to certain affidavits or paragraphs of affidavits which were either struck out by the primary judge or not received into evidence at all. The father contends the primary judge ought to have considered these documents before making the subject consent orders. These documents, then, also go to the father’s complaints regarding the correctness of the consent orders and so these, too, will not be received as further evidence.
As for the final document, the transcript of the hearing of the father’s application for a stay of the subject orders before the primary judge on 25 November 2019, the father argues this transcript evidences his contention that the parenting orders were made in contravention of ss 60CC, 60B, 61AD and 65DD of the Act. Not only is this a transcript of a hearing in relation to a separate application heard after the making of the consent orders, it is sought to be adduced to support an argument challenging the correctness of the consent orders; it will not be received by the Court. In passing, it is to be noted that s 60CC(5) of the Act expressly provides that when making consent parenting orders the Court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3) of s 60CC. This transcript will not be received as further evidence on appeal.
Was the father subjected to “duress” or undue pressure in entering into the consent orders?
Before dealing specifically with the father’s submissions, several points ought be made at the outset of the discussion of this topic.
First, as already discussed by reference to Anderson’s case, the application of pressure upon a client to compromise litigation is recognised as a necessary and proper part of the function of legal representatives in the proper discharge of their duty to their clients and to the Court. As observed by Lindenmayer J, if every such compromise were open to attack by way of appeal by the client who subsequently thought better of it, there would be no end to litigation.
Second, and also by reference to Anderson’s case, if a client under no legal disability has been so overborne by his legal representative that such representative has breached the duty which he owes to the client, then the client’s proper remedy lies elsewhere than in an appeal against the consent orders. An appeal is an unsuitable vehicle for the agitation of such complaint for obvious reasons. It is essentially a question of fact as to whether a person’s will is overborne in a given circumstance. Here, neither the mother nor the ICL have any fair opportunity in the setting of an appeal hearing to test the father’s case or the facts he asserts. At trial level it would be open to those parties to subpoena the file records of the relevant solicitors and indeed to call evidence from the solicitors and counsel in testing or addressing the father’s assertions. That need is particularly stark in this case when regard is had to the feature that the father was found by the primary judge to have admitted his own capacity for untruthfulness in very serious respects, as are outlined below.
It would be open to the mother and the ICL to test the facts asserted by the father if he instituted proceedings to vary the parenting orders pursuant to s 65D(2) of the Act, or if he sought to have the property orders varied or set aside on an application brought pursuant to s 79A of the Act.
Next, the sequence of events leading to the making of, firstly, the parenting orders and, subsequently, the final property orders on 10 October 2019 has already been outlined. There was a significant interval in time between the adjournment of the proceedings on 9 October 2019 and the making of orders on 10 October 2019. Again, there was a delay between the making of the final parenting orders and the subsequent making of final property settlement orders on 10 October 2019. Significantly, as will be further discussed, the father asserts in his submissions that it was pressure about his future relationship with his children that was brought to bear by his legal representatives which, on his version, constituted “duress” upon him to enter into the consent orders. How that alleged pressure applied to his entry into the final property settlement orders is a mystery. That is, the parenting orders had already been made well prior to the entry into the final property settlement orders made by consent.
The father’s submissions on “duress” are solely contained in his Summary of Argument. He did not elaborate on those in oral submissions before me. It is useful to set out, in their entirety, the relevant paragraphs of the father’s Summary of Argument:
55. In Callis and Callis [2019] FamCa 750. Paragraph 40.
Of course, “… there may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice”. It has been said that “ordinarily, a failure to comply with that duty will amount to a miscarriage of justice”.
56.[The father’s barrister] was not advocating for the father but colluding under the guidance of [the mother’s] more senior barrister … [The father’s barrister] put the father under extreme duress stating that [the primary judge] took a personal dislike to the father, was extremely critical of the father and showed extreme bias against the father.
57.So much so that [the father’s barrister] screamed at the father that the Judge hates you … You are a terrible witness. If you let the Judge make a decision on the Children’s Orders she will remove the children from you, and you will never see them again. The children were used as a weapon against the father and the father was put under duress by his own barrister all because of the hate that [the primary judge] showed against him. The hatred that [the primary judge] showed against the father was chilling. And thus [the primary judge] rubber stamped Orders that should never have been made at all. The Orders are exactly what the other party asked for.
For clarification, the father’s recitation of what he describes as paragraph 40 of Callis & Callis [2019] FamCA 750 (“Callis”) above should properly be a reference to Pearce & Pearce [2016] FamCAFC 14 (“Pearce”) at [34]-[35] given [40] in Callis is, in turn, a quote of those paragraphs from Pearce. In any event, though it is well settled that merely consenting to an order does not establish justice and equity,[6] it is likewise well settled that “[a]greement to a consent order which may not adequately reflect a party’s entitlements under sec. 79 does not, of itself, show that there has been a miscarriage of justice”.[7]
[6]Pearce; Holland and Holland (1982) FLC 91-243 (“Holland”) at 77,341.
[7]Holland at 77,336.
It was incumbent on the father, then, to establish before this Court that the relevant property Orders were “so far outside the ambit of what is just and equitable” that the primary judge ought to have either refused to make the orders or concluded that such consent must be the product of duress. The father advanced no arguments before me, either oral or written, which could be said to establish such a contention. As outlined earlier in these reasons, the relevant orders provide for a property division of 58/42 in the mother’s favour. Against the background, in summary, of the mother having been the primary carer for the parties’ children which, in turn, enabled the father to further his career and establish his superior income earning capacity, it cannot be said that such a division falls outside a reasonable range of legitimate outcomes. The mother was to remain the primary carer of two young children for the foreseeable future.
As for the appropriateness of the parenting orders, later in these reasons I explain my view that it cannot be concluded that the parenting orders are not in the children’s best interests.
The next element of the father’s argument is that his legal representatives subjected him to “duress” such that the signing of the consent orders was not a product of his free will. I first observe that, as might be expected with an argument such as this, there is a dearth of evidence or submissions before me as to the conversations between the father and his legal representatives. However, looking at that contention in the context of the father’s case at trial, the primary judge’s reasons and the transcript, I am of the view that this facet of the father’s appeal must be rejected. The father’s case at trial was one involving serious allegations that the children were at an unacceptable risk of harm in the care of the mother. Those allegations included:
a)That the mother was a prostitute;
b)That the mother was engaged in child trafficking;
c)That the mother left one of her children from another relationship alone on the streets of City E while she travelled overseas; and
d)That there was an investigation in Country Q about the mother’s conduct which would result in her incarceration.
The primary judge said this of those allegations:
33.The father has conducted a vendetta against the mother in an attempt to demean, dehumanise and discredit her as a person, as a parent and as a litigant in these proceedings. He has likely done so to secure what advantage he felt he could secure in this litigation, without any thought to the impact that his actions may have on his children or on the mother, the parent with whom he sought to share jointly parental responsibility and decision-making, not to mention the parent with whom at the commencement of these proceedings he sought to equally share the children’s time.
I reiterate here that these observations were made after the primary judge had seen both the mother and father give evidence and be cross-examined at trial.
The primary judge continued:
39.Relevantly, the father admitted that he lied to this Court. He did not come to this Court with the level of honesty and integrity expected of litigants who seek the Court’s assistance, here a matter that involved an inquiry that centred on the best interests of young children.
40.It was not a small lie or the kind of lie you tell in a well-intentioned way, not wanting to hurt a person’s feelings. It was a big lie, one that went to a material issue before the Court. There was never an investigation in [Country Q] about the mother. There was no evidence that the mother was to be jailed in [Country Q] or in [Country T].
41.The father told that lie to seek an advantage in applications filed by him in this Court, applications seeking to vary parenting orders at an interim stage, a particularly important stage where the Court relies upon the honesty and integrity of litigants who seek its help; when the Court has time considerations and constraints; when the hearing is of a truncated nature without the benefit of tested evidence and where in those circumstances, the Court acts with caution with allegations of risk to children.
42.The father evidenced no child focus nor any understanding of the impact on his children of his vendetta against their mother, a person whom they love.
Those paragraphs of the primary judge’s reasons for judgment are also to be read in context of the transcript of the hearing on 10 October 2019 after the consent orders prepared by the parties and their lawyers had been provided to the primary judge. In one particular exchange, the primary judge sought a concession from all parties that there were no longer any allegations that the children were at any risk in the mother’s care. That concession was forthcoming from the father, via his counsel.[8] Shortly thereafter, the primary judge sought a concession from the father that, in fact, there exists an unacceptable risk of harm for these children in the unsupervised care of the father. That exchange occurred as follows:[9]
[8]Transcript 10 October 2019, p.2 line 39 to p.3 line 11.
[9]Transcript 10 October 2019, p.3 lines 13–40.
HER HONOUR: And I can infer from this, that there is an unacceptable risk of harm in these children having unsupervised care – sorry, being in the unsupervised care of the father. Right?
[COUNSEL FOR THE FATHER]: Yes, by inference, yes.
HER HONOUR: That’s a concession that’s being made?
[COUNSEL FOR THE FATHER]: Yes.
HER HONOUR: Right.
…
HER HONOUR: And that’s emotional and psychological harm, isn’t it?
[COUNSEL FOR THE FATHER]: I don’t know if we need to - - -
…
HER HONOUR: What’s the risk that’s being - - -
[COUNSEL FOR THE FATHER]: It’s emotional, yes.
HER HONOUR: Right.
[COUNSEL FOR THE FATHER]: Yes, yes.
The last extract of transcript that ought be set out in full relates to social media posts the father had put online. The primary judge referenced those posts in her Honour’s reasons for judgment in making the orders:
48.Words can also have consequences for the person who utters the words. Engaging in a public forum about the purported ills of the Family Law system and those who work in the system can be part of a healthy democracy that rightly values the free exchange of ideas, transparency and accountability. However, using extreme language and advocating or applauding the use of violence as a means to influence others says something about that person. It is not acceptable.
49.Referring to a professional person, an officer of the Court in the Family Court system, as a low life scum and posting
…surprise that no one has shot one of the low life scum yet-
would be viewed by any right-thinking person as an extreme statement, unacceptable in a peaceable society such as Australia, a statement that may have consequences for the person making it.
50.Suggesting a response to a complaint about a family lawyer that a person should “burn his office down” is similarly an extreme and unacceptable response.
51.Responding to a social media posting that a fellow had blown up a Court and a judge’s home with:
I bet that judge has changed his tune a bit-
and doing so under a posting under your own name, with a photograph of you to avoid any doubt about who the sender was, says something about you.
In reference to those posts, the following exchange occurred on 10 October 2019 between the primary judge and the father’s counsel:
HER HONOUR: … Well, what do you say about this: the father has admitted that he has made postings and they are in evidence. And in the view, they are extreme and unacceptable, aren’t they?
…
[COUNSEL FOR THE FATHER]: I don’t think I – yes, I don’t think I could - - -
HER HONOUR: Is that a concession that you are prepared to make?
[COUNSEL FOR THE FATHER]: Well, I don’t have those instructions, but I don’t see how I can argue with that.
HER HONOUR: Well, do you want to get those instructions?
[COUNSEL FOR THE FATHER]: Yes, please.
…
[COUNSEL FOR THE FATHER]: Yes, your Honour, that’s a concession.
That last extract is perhaps the most important in terms of the father’s argument regarding duress reflecting as it does that counsel obtained instructions from the father, in Court, to make the concession made. In my judgment, all of the paragraphs of the primary judge’s reasons, and the extracts of transcript quoted above, make plain two important propositions:
a)To the extent that the father received legal advice that signing consent orders in the terms of those ultimately made was an appropriate course, such legal advice was clearly warranted on the evidence. Indeed, it cannot be said, on any view, that those orders were “so far outside the ambit of what is just and equitable” that the father could be seen to be acting under duress; and
b)Most particularly in the last quoted extract of transcript above, there were multiple occasions which required the giving of concessions by the father, which concessions could only be given on instructions and, as evidenced by the need for the father’s counsel to briefly discuss same with the father in the court room, it cannot be argued that such instructions were obtained by duress. The father had ample opportunity to express a different view or to communicate to the primary judge his unwillingness to consent to the orders in the course of discussing those orders. The father took no such course.
On the material presented on appeal, I am not satisfied of any merit in the father’s claims that he was subjected to duress by his legal representatives such as to deprive him of the ability to choose to consent to the subject orders. I reject his argument as merely an attempt to orchestrate an escape from those orders.
Did the father withdraw his consent prior to these orders being made?
This question must be answered in the negative. Rule 16.02 of the FCC Rules states:
Date of effect
Unless the Court otherwise orders, a judgment or order takes effect on the day when it is given or made.
Whilst the FCC Rules do not specify when an order is “given or made”, the Family Law Rules 2004 (Cth) (“the Family Law Rules”) can be relied upon when the FCC Rules are silent on a topic (see r 1.05(2) of the FCC Rules). Relevantly, r 17.01 of the Family Law Rules states:
When an order is made
(1) An order is made:
(a)in a hearing or trial--when it is pronounced in court by the judicial officer; or
(b) in any other case–when it is signed.
(2)An order takes effect on the date when it is made, unless otherwise stated.
(3) A party is entitled to receive:
(a) a sealed copy of an order;
(b)if the order is rectified by the court–a sealed copy of the rectified order; and
(c) a copy of any published reasons for judgment.
(4) Subrule (3) does not apply to a procedural order.
(Emphasis added)
Clearly then, the relevant consent orders were “made” and took “effect” on 10 October 2019, whilst the father’s purported revocation of consent via email occurred on 22 October 2019. However, that does not necessarily put the issue to rest.
The father’s case on this point can be summarised in this way. On 10 October 2019, the consent orders were pronounced in Court by the primary judge. The parties received a sealed copy of those orders on 22 October 2019 (in respect of the parenting orders) and 23 October 2019 (in respect of the property orders). However, at 9.10 am on 22 October 2019, the father sent an email to the mother’s solicitor and the primary judge’s chambers, which email this Court received by way of further evidence, attaching a letter which read as follows:
Dear [mother’s solicitor],
This is to give official notice in regard to the following:
1.Minute of Orders sought by [the mother], dated 10th of October 2019. Order 18 not being dated. Order 8 and 9 relate to other matters, while Order 1-7 and Order 10-17 relate to parenting matters.
2.Minute of Orders sought by [the mother], not dated and produced on the 10th of October 2019 at Brisbane Court House. Order 1-18, some are handwritten.
I hereby withdraw my implied or direct consent to the Orders 1 and 2 as per above.
…
I look forward to your soonest response.
Yours sincerely,
[The father]
(Emphasis added)
Though that letter invites confusion as to what exactly the father sought to revoke his consent to, the appeal proceeded on the basis that the father sought to revoke his consent in relation to the entirety of the orders made on 10 October 2019. Due to that correspondence, the father argues, the primary judge erred in allowing the subsequent sealing and releasing of the orders.
Though the father did not articulate this nexus, r 16.05(1) of the FCC Rules provides:
Setting aside or varying judgments or orders
(1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(Emphasis added)
The “entering” of orders is provided for in rr 16.07 and 16.08 of the FCC Rules. They provide as follows:
16.07 When must an order be entered
(1) An order must be entered if:
(a) the order takes effect on the signing of the order; or
(b) the order is to be served; or
(c) the order is to be enforced; or
(d)an appeal from the order has been instituted or an application for leave to appeal has been made; or
(e) some step is to be taken under the order; or
(f) the Court directs that the order be entered.
(2)However, an order need not be entered if it merely (in addition to any provision as to costs):
(a) makes an extension or abridgment of time; or
(b) grants leave or makes a direction:
(i) to amend a document (other than an order); or
(ii) to file a document; or
(iii)for an act to be done by an officer of the Court other than a lawyer; or
(c) gives directions about the conduct of proceedings.
16.08 Entry of orders
(1) An order may be entered:
(a) under an arrangement under section 90 of the Act; or
(b) under the seal of the Court signed by:
(i) a Judge; or
(ii) a Registrar; or
(iii)an officer of the Court acting with the authority of the Chief Executive Officer.
(1A) For paragraph (1)(b), an order may be signed by electronic means.
(2) An order may be entered, in accordance with subrule (1):
(a) in the registry; or
(b) in court; or
(c) in chambers.
It is apparent, then, that the relevant orders here were orders which were required to be entered under r 16.07(1). The method of entry of orders under r 16.08 is through r 16.08(1)(b)(ii) whereby the signature of the Principal Registrar is electronically applied to Court orders. Such an electronic signature is clearly permitted under r 16.08(1A).
The distinction between the making of orders and the entry of orders was briefly discussed in Mawson & Coates (2014) FLC 93-610 where May J said:
22.Rule 16.08 provides that an order may be entered under the seal of the Court signed by a judge or registrar, whether in the registry, in court, or in chambers. The implication is therefore that the making of an order is distinct from the process of signing and stamping a written order with the court seal.
The distinction which her Honour speaks of between the processes of signing and sealing an order as opposed to the making of that same order must be accepted given the explicit wording of the FCC Rules which, itself, delineates between the power a judge has to vary or set aside orders before they are entered (r 16.05(1)) or after they are entered (r 16.05(2)). This distinction is also made out in the authorities which will be referred to.
It was this issue which necessitated the adjournment of this matter on 26 March 2020 to enable the parties to put further written submissions before the Court. Initially, there was confusion about whether, in fact, the father’s email purporting to revoke his consent was sent before or after the orders were “entered”. That was settled by way of internal inquiry within the Court, which resulted in the Appeals Registrar informing all parties that the Court’s internal database recorded the parenting orders as having been “entered” at 3.04 pm on 22 October 2019 and the property orders at 11.43 am on 23 October 2019 and amended at 12.14 pm on 23 October 2019. That correspondence, dated 12 June 2020, became Exhibit 1 in the appeal.
Consequently, all parties accepted that the father’s email purporting to revoke his consent was received prior to the “entry” of both the parenting and property orders. The relevant question, then, is not whether the primary judge ought to have actually set aside the orders or not, the question is, firstly, whether the father ought to have been heard on the issue as to the orders being entered. It devolves into whether a question of procedural fairness arises.
The mother and ICL argue that there was no obligation on the primary judge to hear the father on the issue for two reasons. Firstly, because an email to the primary judge’s chambers places no such obligation on the primary judge compared to if the father had filed an Application in a Case which, clearly, would require a hearing.
This submission ought be accepted. The means by which the Court’s jurisdiction is properly invoked is by the formal filing of an Application in a Case save in the exceptional circumstance where, at a hearing, the Court exercises discretion to accept an application made orally. Here, the mere forwarding of an informal email to the primary judge’s chambers did not engage or enliven any procedural requirement that the Court exercise any relevant jurisdiction, discretion or power. It follows that no question of affording procedural fairness to the father ever actually arose.
Secondly, the mother argues that consent orders are akin to a contract and that the father ought not be permitted to “simply change his mind” in circumstances where his consent was given with the benefit of legal representation. This brings into focus the scope of the discretion conferred by the subject rule and the grounds upon which such discretion can legitimately be exercised. The authorities support the proposition that the operation of the rule rests upon consideration of the interests of justice with the principle of finality of litigation at the forefront of such consideration.
This is supported by analogy to what was said in the High Court case of Burrell v The Queen (2008) 238 CLR 218 (“Burrell”). In that case, the High Court considered the power of a superior court of record to reopen their own orders after such orders were entered. Clearly, that is a different situation than here, where the FCC is not a superior court of record and the orders were not entered. In any event, the High Court said this:
18.The formal recording of the orders of a superior court of record is often referred to as the “perfecting” of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been “perfected”. This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?
19.The end of a court’s powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court’s orders were the criterion, there would never be an end to some disputes … a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.
20.Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
Importantly, that judgment was delivered against the backdrop of the New South Wales Court of Criminal Appeal having reopened perfected orders once it was discovered those orders were supported by reasons which were predicated on inaccurate facts. Importantly, the High Court in Burrell reaffirmed (at [22]) the judgment in DJL v Central Authority (2000) 201 CLR 226 where it was said at [43] that the “power to reopen … must be found in ‘the text of the governing statutes and any express or implied powers to be seen therein’”.
Section 8(3) of the Federal Circuit Court of Australia Act 1999 (Cth) records that the FCC is a “court of record and is a court of law and equity” which finds its power sourced from legislation (R v Bevan Ex Parte Elias (1942) 66 CLR 452 at 464). The presence, then, of a specific legislative power granted to the FCC to “vary or set aside a judgment or order before it has been entered” cannot simply be overlooked as mere “procedure” or formality.
Burrell also raises questions about the role that the principle of finality might play in the primary judge hearing the parties on the issue, given the extract above which, arguably, supports the contention that finality is not achieved (in order for it to be preserved) until the “entry” of orders. However, relevant here is the High Court judgment in Achurch v The Queen (2014) 253 CLR 141 (“Achurch”) where the High Court, after citing [16] of Burrell observed:
16.The principle of finality forms part of the common law background against which any statutory provision conferring power upon a court to reopen concluded proceedings is to be considered. It is a principle which may inform the construction of the provision …
17.Consistently with the principle of finality, courts may correct their errors before their orders are formally recorded. As was said in the joint judgment in Smith v NSW Bar Association:
“It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected … The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation.”
… The power is inherent in superior courts. Similar powers may be implied in statutory courts, including inferior courts, and may be reflected or extended by express statutory provisions or rules of court. Subject to express provision to the contrary, the power subsists up to but not beyond the point at which judgment is entered. As Barwick CJ observed in Bailey v Marinoff:
“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance … beyond recall by that court.”
The rationale for the limiting requirement, that the order to be corrected has not been perfected, is that it provides “a readily ascertainable and easily applied criterion”. It also “marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court”.
(Footnotes omitted) (Emphasis added)
As the High Court emphasised in Achurch, a statutory provision conferring power upon a court to reopen concluded proceedings is to be construed against the public interest and the principle of finality. It follows that the discretionary power to review or correct errors in orders prior to entry, as provided by r 16.05(1) of the FCC Rules, may only be exercised in limited circumstances having regard to the public interest in maintaining the finality of litigation. Beyond the correction of orders for errors, it is not consistent with the finality principle that the discretion is legitimately engaged to revisit consent orders simply because a party asserts a change of mind or that consent is withdrawn.
In this case, the father’s email of 22 October 2019, sent to the chambers of the primary judge 12 days after the subject orders had been “made” and had come into “effect” by operation of law, did not identify any error or errors in the orders. The email merely contained the bare assertion as to the father’s purported withdrawal of consent to the orders. However, consent was no longer executory. That is, the parties’ respective consent to each of the parenting orders and the property orders merged in the making of those respective orders by the Court on 10 October 2019. Further, the email advanced no explanation for the father’s purported withdrawal of consent or, for example, how that consent might have been provided in error, nor does the email contain any request for the proceedings to be re-listed or for the issue to be agitated.
In these circumstances, I am unable to conclude that the discretion conferred by r 16.05(1) of the FCC Rules was enlivened by the subject email, let alone that there has been any foundation provided for the positive exercise of such discretion. It would defy common sense and the practical realities of the demands upon the already over-burdened FCC and its Judges to impose some additional requirement upon its Judges to monitor, after orders are made in Court, the potential operation of r 16.05(1) of the FCC Rules by reference to, not an application filed, but to informal communications that might be received from litigants or their solicitors pending the entry of orders in the normal course. Again, by reason of the heavy demands upon the limited resources of the FCC, the entry of orders in the normal course may on occasions take some time, as occurred here. These practical realities serve to reinforce the conclusions already expressed. That is, if in the normal course the subject orders had been entered within several days of 10 October 2019 as might well have occurred, or at least in a timeframe less than the 12 days later before the father’s email was sent, no occasion at all to consider the operation of r 16.05(1) of the FCC Rules would even arise.
For these reasons, no question of a denial of procedural fairness to the father arises.
However, even if it could be concluded that the father was denied procedural fairness in that, contrary to my conclusions, it was incumbent upon the primary judge to afford the father a hearing to consider the operation of r 16.05(1) of the FCC Rules, it is not axiomatic that every denial of procedural fairness has a material effect. The father would have to establish that the denial of natural justice deprived him of the possibility of a successful outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147). In this context it is helpful to look to rules similar to r 16.05(1) in other jurisdictions as to the power of a trial judge to vary or set aside orders prior to entry.
The Federal Court Rules 2011 (Cth) contain r 39.04 which provides:
The Court may vary or set aside a judgment or order before it has been entered.
In Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) (2012) 287 ALR 685, the Full Court of the Federal Court said this:
6.… Rule 39.04 permits the Court to vary (or set aside) a judgment or order before it has been entered without the constraints imposed on the Court when the judgment or order has been entered. The orders have not been entered. Still, the power is to be exercised sparingly, indeed cautiously, having regard to the public interest in the finality of litigation: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Aktas v Westpac Banking Corporation Ltd and Another (No 2) (2010) 241 CLR 570 … The Full Court discussed the exercise of the power at some length in admittedly different circumstances in Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [77]-[84].
The discussion in Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 is in similar terms to the above paragraph and, indeed, other authorities such as Ashby v Slipper (No 2) (2014) 314 ALR 84 at [12]-[15]; Ashby v Slipper (No 3) (2015) 317 ALR 623 at [39]; Mordech & Mordech [2018] FamCAFC 15; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302 and Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 at [772] all stress the need for a judge to give real consideration to the principles of finality of litigation (as was espoused in the case of D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1) and urge the use of Rules such as r 16.05(1) with great caution.
However, one consideration is the distinguishing aspect that none of those cases and, indeed, no case pointed to by any of these parties involves the particular factual circumstance which occurred here. Namely, that a trial was commenced, evidence was given by both the mother and father and then final consent orders were made. The primary judge was not required to adjudicate any dispute between the parties beyond the requirement to be satisfied of justice and equity in the case of the property orders and of the parenting orders being in the children’s best interests.
This is significant because it necessarily means any arguments that would have been available to the father to enliven the discretion under r 16.05(1) are the same ones he has advanced before me in order to establish error on the primary judge’s behalf. That is, the father’s arguments would be limited to his consent being a product of duress, the trivial differences between the consent orders as made compared to the draft orders handed up and alleged issues of form. In my view, such arguments would enjoy no realistic prospect of success assuming them to be advanced on an application before the primary judge to exercise the discretion under r 16.05(1), for the reasons I expressed earlier.
In summary, I am not persuaded of any denial of procedural fairness to the father. However even if, contrary to that conclusion, it could be said that there exists a denial of procedural fairness in the form of the failure to provide the father with a hearing as to the operation of r 16.05(1) it cannot be established, in my judgment, that such denial has any materiality. I am not satisfied by any submission the father has made, that any argument he could advance before a judge on an application properly made pursuant to r 16.05(1) would give him the possibility of a successful outcome such that this Court should allow the appeal and remit the proceedings.
Conclusion and costs
I have determined that save for the receipt by way of further evidence of the father’s email to the FCC dated 22 October 2019 the Amended Application in an Appeal filed on 12 March 2020 be dismissed.
There being no merit in any of the father’s challenges on appeal, the appeal ought be dismissed.
In the event the Court dismissed the appeal, the mother sought her costs on a party and party basis in the amount of $13,562.40. The ICL did not seek costs in the event the appeal was dismissed.
The father has been wholly unsuccessful in the appeal. That is a justifying circumstance for an order for costs. Moreover, much of the material advanced by the father on appeal was misconceived but put the mother to the expense of a response.
Whilst the father seeks to highlight what he says is his impecuniosity it is well settled that impecuniosity is not a bar to an order for costs which is otherwise justified.[10]
[10]Lenova & Lenova (Costs) [2011] FamCAFC 141; Northern Territory v Sangare (2019) 265 CLR 164.
In my judgment having reviewed the mother’s claim it is reasonable to allow the mother’s costs in a fixed amount of $10,000, with an allowance of three months for the father to meet payment.[11]
[11]Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 September 2020.
Associate:
Date: 18 September 2020
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