Melville & Melville (No 2) - [2020] FamCAFC 78

FAMILY COURT OF AUSTRALIA

MELVILLE & MELVILLE (NO. 2)

[2020] FamCAFC 78

FAMILY LAW – APPEAL – ADJOURNMENT – Where the Court received documents filed by the parties late – Where such lateness requires an adjournment of the hearing to permit the self-represented father a proper opportunity to review the material – Where the parties also ought be given an opportunity to provide further submissions, if any, on the application of r 16.05(1) of the Federal Circuit Court Rules 2001 (Cth) – Where the circumstances warrant an adjournment of the hearing.

Family Law Act 1975 (Cth) ss 68L, 94AAA(3)

Federal Circuit Court Rules 2001 (Cth) rr 16.05(1), 16.07, 16.08

Mawson & Coates [2014] FamCAFC 186

APPELLANT:

Mr Melville

RESPONDENT:

Ms Melville

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC

4044

2017

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

8 April 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

26 March 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 Made on 26 March 2020

IT IS ORDERED:

The transcript of today’s hearing, which comprises the reasons for the adjournment of the hearing of the appeal and records the consent of each party to such adjournment, be obtained by the Court and provided to the parties.
The appellant father be granted leave to rely on his Amended Orders Sought filed on 23 March 2020, both sets of his Written Submissions filed 25 March 2020 and the extract of Transcript from 9 October 2020 received by the Court on 25 March 2020.
The Independent Children’s Lawyer be granted leave to rely on her Summary of Argument filed on 24 March 2020.
Within 21 days of receipt of the transcript referred to in Order 1 herein, the appellant father file and serve further written submissions confined to the issue of the application and effect of r 16.05(1) of the Federal Circuit Court Rules 2001 (Cth) with such submissions to be no longer than 15 pages in length.
Within 7 days of the father serving his written submissions pursuant to Order 4 herein, each of the respondent mother and the Independent Children’s Lawyer shall file and serve written submissions relevant both to the application and effect of r 16.05(1) of the Federal Circuit Court Rules 2001 (Cth) and in response to the appellant father’s further written submissions upon which the appellant father was granted leave to rely pursuant to Order 2 herein with such submissions to be no longer than 15 pages in length.
The further hearing of the appellant father’s Notice of Appeal and any Applications in an Appeal be adjourned to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCAFC 78
Decision Date: 8 April 2020

CaseChat Overview and Summary

The case of Melville & Melville (No 2) involved a dispute between the parties, presumably in the context of a family law matter. The primary focus of the court was on the interpretation and application of procedural rules concerning the variation or setting aside of judgments or orders before they are entered, as outlined in rule 16.05(1) of the relevant procedural rules. The father, who was self-represented, argued that his consent to certain orders had been withdrawn prior to the orders being served on the parties on 22 October 2019. This contention raised a critical question about the role of these provisions when juxtaposed with the timeline of events leading up to the service of the orders.

The legal issues before the court encompassed the interpretation of the procedural rules and the determination of the appropriate course of action in light of the father's contention that his consent had been withdrawn before the orders were entered. The court needed to consider whether the withdrawal of consent before the orders were entered had any legal effect and, if so, how it should be addressed. Furthermore, the court had to ensure that all parties, particularly the self-represented father, had the opportunity to address the issues raised during the hearing on 26 March 2020.

In delivering its judgment, the court emphasised the importance of ensuring that all parties, especially those who are self-represented, have a fair opportunity to address the issues before the court. The court noted that it was necessary to order the transcript of the hearing on 26 March 2020 and ensure it was supplied to the parties to facilitate this. The court also highlighted that it would consider further submissions from the parties before making a final determination on the role of the procedural provisions in this context. Ultimately, the court made certain orders to address these issues, which were pronounced on 26 March 2020.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In turn, r 16.05(1) then states: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 question then, which I say no more about pending further submissions from the parties, is what role these provisions play when considered against the backdrop of the events leading up to and including the parties receiving the Orders on 22 October 2019. Particularly as against the father’s central complaint that his consent to the Orders was withdrawn via email prior to the parties’ receipt of the Orders on that date. In other words, that the withdrawal of his consent was notified to the Court and the parties prior to the orders being “entered”. In my judgment, it was also necessary for the Court to order the transcript of the hearing on 26 March 2020 and have that transcript supplied to the parties so as to ensure that each party, in particular the self-represented father, have the opportunity to ensure their submissions address the issues discussed in Court on that date. It is for these reasons that I made the Orders set out at the commencement of these reasons which were pronounced on 26 March 2020.

Ratio Decidendi

Legal Principle Established

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