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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Details
- Case
- [2020] FamCAFC 231
- Decision Date
CaseChat Overview and Summary
In the matter of Melville and Melville (No. 3), the primary concern was the interpretation and application of the Family Law Court (FCC) Rules, particularly in relation to the entry of orders and the subsequent revocation of consent by one of the parties. The father sought to revoke his consent to certain parenting and property orders which had already been made by the FCC. The dispute centred on whether the father's revocation of consent was effective after the orders had been formally entered in the court’s records.
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.
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
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.
Ratio Decidendi
Legal Principle Established
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