Melville & Melville (No 2)
[2020] FamCAFC 78
•8 April 2020
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 | of | 2017 |
| APPEAL NUMBER: | NOA | 98 | of | 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 a date to be fixed.
Costs of and incidental to today’s hearing be reserved.
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 2) 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
By Notice of Appeal filed on 31 October 2019, Mr Melville (“the father”) appeals from final property and parenting orders made by consent on 10 October 2019 by a judge of Federal Circuit Court of Australia (“the Federal Circuit Court”). That appeal is opposed by Ms Melville (“the mother”) and, in so far as the appeal relates to parenting orders, the lawyer appointed pursuant to s 68L of the Family Law Act 1975 (Cth) to separately represent the children the subject of the Orders (“the ICL”).
The father’s Notice of Appeal and subsequent Application in an Appeal came before me, sitting as a single judge,[1] on 26 March 2020. On that day, I made Orders adjourning the hearing and indicated I would deliver my reasons for those Orders in due course. These are those reasons.
[1] Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth).
Background
By way of brief background, the father was born in 1973 and is 47 years of age. The mother was born in 1968 and is 51 years of age. The parties’ relationship commenced in October 2009 when the mother resided in Country T (having been born there) and the father resided in Country P. They married in 2010 in Country T and separated on 11 February 2017.
The parties have two children together; B, born in 2011 and thus aged eight years old and C, born in 2013 and thus aged six years old.
The matter proceeded to be heard by the trial judge over six days in February, March and October 2019. On 10 October 2019, the parties reached consent regarding both the financial and parenting disputes and those Orders, signed by the parties and handed up to the trial judge, were pronounced in Court on that day. Importantly, however, it appears from the record that those Orders were not “entered”, as required by r 16.07 and as that term is described by r 16.08 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) until 22 October 2019. The potential importance of that timeframe will be explained later in these reasons.
The appeal hearing
On 21 January 2020, the appeal was listed to be heard by me on 26 March 2020. Those procedural Orders required, inter alia:
(1)The father to file and serve the transcript of the relevant hearing dates and his Summary of Argument by 14 February 2020;
(2)The mother to file and serve her Summary of Argument in reply by 6 March 2020; and
(3)The ICL to file and serve his Summary of Argument by 20 March 2020.
As it transpired, the father and mother filed their respective Summaries of Argument on time. The father also filed an Application in an Appeal dated 11 February 2020 seeking, amongst other Orders, to adduce further evidence.
The ICL, however, failed to file his Summary of Argument until 24 March 2020 with the mother and father, who is self-represented, not receiving that document until 25 March 2020, the day before the hearing.
In addition, the Court received the following documents from the father for which the father was required to seek leave to rely upon:
a)A document filed on 23 March 2020 titled “Amended Orders Sought by Appellant in Appeal NO. NOA98/2019”;
b)A document filed on 25 March 2020 titled “Submissions by the Appellant” which purported to be further written submissions in addition to those which were received on 11 February 2020;
c)A document filed on 25 March 2020 titled “Housekeeping” which, as the father confirmed in oral submissions before me at the hearing on 26 March 2020, served only to correct minor errors in his Summary of Argument filed on 11 February 2020;
d)An extract of transcript of proceedings before the trial judge on 9 October 2019, received by this Court on 25 March 2020;
e)A copy of the Family Court of Australia’s “Application for Consent Orders Kit” received by this Court on 25 March 2020;
The Court also received the following documents from the mother:
a)A document filed on 25 March 2020 titled “Application to Adduce Further Evidence – Written Submissions for the Respondent”;
b)An affidavit sworn by the mother’s solicitor filed on 25 March 2020;
c)A schedule of costs for the mother calculating her costs, on an indemnity basis, at $30,507.80; and
d)An amended schedule of costs for the mother calculating her costs on a party and party basis in the amount of $13,562.40.
To the extent the mother requires leave to rely on those documents, such leave ought be considered at the next hearing date wherein argument will be heard concerning the father’s Application in an Appeal and where any issues as to costs may arise.
The ICL did not object to the father being given the requisite leave to rely on the documents outlined above. The mother initially opposed the father being given leave to rely upon his Summary of Argument received on 25 March 2020 but did not oppose such leave being given in respect of the other documents.
In the event, however, the mother withdrew her objection to the father being given leave to rely on his further Summary of Argument on the condition she be permitted to reply to the father’s further Summary of Argument in writing. The ICL made the same request.
Given that this document amends the father’s case from that which he argued in his original Summary of Argument, the mother and ICL ought be given leave to respond to the father’s further Summary of Argument in writing.
For his part, the father opposed the ICL being given leave to rely on its Summary of Argument given he had not had the opportunity, as a self-represented litigant, to review that document given he had only received it the day before the hearing of the appeal.
The requirement for an adjournment
As would be clear upon a reading of the transcript of the hearing before me on 26 March 2020, an adjournment of this matter was required on two bases.
The first of those is the requirement to afford the self-represented father procedural fairness to allow him an appropriate amount of time to digest the
late-filed Summary of Argument of the ICL. Neither the mother nor the ICL made submissions against that course.
The second issue, fundamental to this appeal, is the question of what, if any, application r 16.05(1) of the FCC Rules has in this case. In highlighting that rule, it is important to note that under the FCC Rules and highlighted in the case law, there exists a distinction between the making of an Order and the entry of that Order. For example, in Mawson & Coates [2014] FamCAFC 186, May J said this:
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.
(Emphasis added)
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.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 April 2020.
Associate:
Date: 8 April 2020
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