Molenaar & Molenaar

Case [2021] FedCFamC1A 60

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Molenaar & Molenaar [2021] FedCFamC1A 60

Appeal from:

Molenaar & Molenaar [2021] FCCA 390

Molenaar & Molenaar (No. 3) [2021] FCCA 1329

Molenaar & Molenaar (No. 4) [2021] FCCA 1330
Appeal number(s): SOA 9 of 2021, SOA 34 of 2021, SOA 35 of 2021
File number(s): MLC 14377 of 2018
Judgment of: AUSTIN, BERMAN & HARPER JJ
Date of judgment: 10 November 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – PROPERTY – Application in an Appeal – Summary dismissal – Where the application for summary dismissal was filed less than two weeks before the appeal – Where the appeals are before the Court and should be substantively determined – Application dismissed – Application in an Appeal – Adduce further evidence – Where the accompanying affidavit does not state the grounds of appeal to which the further evidence relates – Where none of the further evidence demonstrates error by the primary judge – Application dismissed – Where despite three appeals being brought from three different sets of orders, the grounds in each appeal are exactly the same – Bias – Denial of procedural fairness – Factual error – Failure to take material considerations into account – Plainly unreasonable or unjust orders – Where the appeals do not raise any question of general principle – Appeals dismissed – Costs ordered in a fixed sum.
Legislation:

Family Court Act 1997 (WA) s 205ZD

Family Law Act 1975 (Cth) Pts VII, VIII, ss 66K, 79A, 117(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35(b), 36(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39

Federal Circuit Court Rules 2001 (Cth)

Family Law Rules 2004 (Cth) r 15.07 as repealed by the Family Law Amendment Rules 2009 (No. 1) (SLI No 33 of 2009) (Cth) r 3 sch 4
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

F & S (2005) FLC 93-208; [2005] FamCA 44

House v The King (1936) 55 CLR 499; [1936] HCA 40

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 50
Date of hearing: 10 November 2021
Place: Melbourne (via video link)
The Appellant: Litigant in person
Counsel for the Respondent: Ms Bowen
Solicitor for the Respondent: Ballarat Lawyers

ORDERS

SOA 9 of 2021
SOA 34 of 2021
SOA 35 of 2021
MLC 14377 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR MOLENAAR

Appellant
AND:

MS MOLENAAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, BERMAN & HARPER JJ

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AGLC
Molenaar & Molenaar [2021] FedCFamC1A 60
Case
[2021] FedCFamC1A 60
Decision Date

CaseChat Overview and Summary

Molenaar & Molenaar is an appeal from three sets of orders made by the primary judge in family law proceedings brought by the wife against the husband. The wife and husband had been married for approximately 14 years and separated in July 2018. They have two children born in 2013 and 2015. The wife sought property settlement and parenting orders. The primary judge made orders for property settlement and parenting, and later orders to enforce the first set of orders. The husband appeals from all three sets of orders. The court was required to determine the validity of the husband’s grounds of appeal against each set of orders. The court found that the husband’s appeals were without merit. The court found that the husband had not demonstrated any appealable error in the primary judge’s reasons, had failed to take into account relevant considerations, had not been denied procedural fairness, and that the orders were not unreasonable or plainly unjust. The court found that the husband had not provided satisfactory reasons for the late filing of an application to adduce further evidence and that the additional evidence did not establish appealable error. The court found that the husband’s complaints about the delay in the publication of reasons, the mode of hearing of the appeal, and the relevance of certain statutory provisions were not valid grounds of appeal. The court found that the husband’s miscellaneous complaints were not valid grounds of appeal because they were not pleaded or were not supported by argument. The court dismissed all three appeals and ordered the husband to pay the wife’s costs of $3,570.

Orders

Orders of the court

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Background

Background to the litigation

On 4 June 2021, the primary judge issued a warrant for possession of the property, authorising enforcement officers to take possession of the property from the husband (by reasonable force if necessary) and to deliver vacant possession of it to the wife. The husband’s third appeal lies from those orders (Appeal SOA 35 of 2021).Background The parties commenced cohabitation in February 2004, married in January 2011, and finally separated in July 2018. The husband continued to occupy the property after separation. The parties’ two children were born in July 2013 and March 2015. They have always lived with the wife since the parties’ final separation, but they spend time with the husband. The proceedings were commenced by the wife in December 2018 and heard in January 2021, after several earlier trial dates in 2019 and 2020 were vacated. The primary judge refused the husband’s application to adjourn the trial shortly before it commenced. The husband had not been legally represented for nearly a year before the trial and, because the adjournment was refused, he conducted the first day of the trial without legal representation. He was, however, legally represented on the second and third days of trial. At the conclusion of the trial in late January 2021, the primary judge made procedural orders requiring the parties to each file updated minutes of proposed orders and written submissions. They did so and then several days later, on 5 February 2021, the primary judge pronounced the final orders (“the first orders”) and gave oral reasons for judgment. The reasons were transcribed, settled in written form, and then published several weeks later in early March 2021. The first orders required the husband to vacate the property within 30 days, for it to then be sold, and the net proceeds of sale divided between the parties in certain prescriptive shares. After the husband filed his first appeal, he made an application to the primary judge to stay the first orders pending the resolution of his appeal. The application was dismissed by the primary judge on 17 March 2021. Despite the first orders still being operable and enforceable, the husband defied them by retaining exclusive possession of the property. In late April 2021, the wife applied for orders to help implement the first orders. In particular, she sought orders for the husband to vacate the property within 14 days and for her to have unilateral control of the sale. That application was entertained by the primary judge on 11 May 2021. The husband did not appear and the hearing proceeded in his absence. An order was made for him to vacate the property and the application was adjourned for a month to give the husband time to comply, in default of which the wife’s application for further enforcement orders would then be entertained (“the second orders”). In breach of the second orders, the husband continued to retain exclusive possession of the property. The pending enforcement application was next before the primary judge on 4 June 2021. On that occasion, the husband was present, but was again without legal representation. The wife pressed the primary judge to issue a warrant for possession of the property. The husband applied for an adjournment of the hearing of the enforcement application so he could place more evidence before the Court, but he and the primary judge had this exchange about the nature of the evidence he wanted to adduce and the utility of an adjournment:HIS HONOUR: … [I]n order to consider whether to grant an adjournment …[THE HUSBAND]: Yes.HIS HONOUR: … I want to know what you wish to say in the affidavit.[THE HUSBAND]: Well, the main issue is if I have to vacate the home I have nowhere to actually look after my children. I’ve got nowhere else to go. That’s why I’m in the home. That’s – it’s not just plainly I’m refusing because I am not following the orders that were made on 5 February, I have no other option. So I will have nowhere to provide for the children. I will be sleeping in a car and I’ve got nowhere to go. I can’t afford to get rental accommodation. So the only place I will be is on the street and, probably, at the local soup bus here every night at around about 6, 7 o’clock.…HIS HONOUR: … [W]hat application in a case do you propose filing this afternoon?[THE HUSBAND]: Well, I want to have sole occupancy of the home … occupancy of the home. I will go through and pay the mortgage and do what I need to. I’ve got an appointment with a financial counsellor on Monday in relation to facilitating a compromise between me and the lender and see if we can do a variation on the property. …(Transcript 4 June 2021, p.4 lines 33–47, p.6 lines 4–11)

Evidence

Evidence Before The Court

The application should be dismissed. The first appeal was filed in March 2021, but the wife left it until less than two weeks before the appeal hearing to seek summary dismissal. Now that the appeals are before the Court for hearing on their merit, they should be substantively determined according to the merits.Application to adduce further evidence On 3 November 2021, the husband filed an Application in an Appeal seeking to adduce further evidence in the first appeal, pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”). The application should be dismissed because it was filed late without satisfactory explanation (r 13.39(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), the accompanying affidavit did not state the grounds of appeal to which the further evidence relates (r 13.39(2)(b)), most of the additional evidence existed before the trial, or could have been procured in advance of it, and therefore could have been adduced at the trial, and none of the further evidence tended to demonstrate error by the primary judge in making either the property settlement or parenting orders (CDJ v VAJ (1998) 197 CLR 172). It is apparent from the husband’s supporting affidavit that, in respect of the parenting orders, he is aggrieved by the wife’s alleged breach of them, but that grievance is remedied by their enforcement rather than their appeal.The Appeal Despite the three appeals being brought from three completely different sets of orders, the grounds of appeal promulgated by the husband in each appeal are exactly the same (though numbered differently in the appeals). Unadorned by any particulars, they are in these terms:The Learned Trial Judge was biased.The Learned Trial Judge failed to take into account material considerations.The Learned Trial Judge failed to afford procedural fairness to the Appellant.The Learned Trial Judge erred on the facts.The outcome was plainly unreasonable or unjust. The first appeal recites two other complaints, ascribing to them the characterisation of discrete grounds of appeal, though they are really not. The first additional grievance (Ground 1) is that the reasons for judgment delivered for the first orders were not published in written form by the primary judge until 3 March 2021, nearly a month after the orders were pronounced. That is true, but it entailed no appealable error. The modest delay in the settlement of reasons delivered ex tempore was quite unexceptional and did not hinder the husband’s conduct of the appeal on the other grounds he proffered. Secondly, the husband contended the appeal would be “reheard by way of hearing de novo” (Ground 7), but the assumption or expectation harboured by the husband that this appeal would proceed by hearing de novo was misplaced. The appeal is instead conducted by re-hearing (Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; CDJ v VAJ at 201–202 and 233) and so the demonstration of appealable error by the primary judge is an indispensable condition to the success of the appeal and, hence, any intervention by this Court to either remit the proceedings for re-hearing or to re-exercise the discretion (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32]; Warren v Coombes (1979) 142 CLR 531 at 538, 541–544 and 551–552).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

To dispose of this ground it is enough to say the husband has not yet made any application at first-instance under s 79A of the Act to set aside the property settlement orders made on 5 February 2021. He cannot call to aid that statutory provision in the first appeal. Nor does it have any relevance to the second or third appeals.Ground 2 – failure to take material considerations into account In support of this ground of appeal, the husband submitted:Family Law Act 1975 – Sect 66K(As per the original) Section 66K of the Act is located within Div 7 of Pt VII and pertains to child maintenance orders, of which none was made by the primary judge. It has no relevance to the parenting orders made by the primary judge under Div 6 of Pt VII of the Act, let alone to the property settlement orders made under Pt VIII of the Act. Nor does it have any relevance to the appeals from the second and third orders. This ground must fail.Ground 5 – plainly unreasonable or unjust orders In support of this ground, the husband submitted:Section 79 Family Law Act Section 75 (2) and section 205ZD of the family law act.(As per the original) There is nothing “unreasonable or plainly unjust” about the property settlement orders made by the primary judge (House v The King (1936) 55 CLR 499 at 504–505). Once it is accepted those orders were not beset by appealable error, there was certainly nothing unreasonable or plainly unjust about the second and third orders which were needed to enforce the first orders. We presume the reference to “section 205ZD of the family law act” to be to s 205ZD of the Family Court Act 1997 (WA). Given the proceedings were heard by the primary judge in the State of Victoria exercising federal jurisdiction under the Act, the legislation of Western Australia had no application. This ground must fail.Miscellaneous complaints Although not contained within any of the three Notices of Appeal, the husband’s Summary of Argument contained these additional complaints:7.Mistake of Fact – The High Court in De Winter And De Winter (1979) FLC 90-6058.The trial judge took into account irrelevant matters. The High Court Blunt V. Blunt (1943) AC 517(As per the original) The husband cannot be permitted to raise complaints in his Summary of Argument which stray beyond the pleaded grounds of appeal, but even if he was permitted to do so, the submissions are no more than bare assertions and do not establish appealable error.Disposition Each appeal should be dismissed. The respondent sought costs of $3,570 in the event the appeal was dismissed. The costs order should be made, regardless of the husband’s meagre financial circumstances (s 117(2A)(a)), as the appeals lacked any merit (s 117(2A)(e)), the husband’s compliance with procedural orders was deficient because he had to be granted the indulgence of extensions of time within which to file a draft appeal index, the consolidated digital transcript and his written Summary of Argument (s 117(2A)(c)), and the wife received a grant of legal aid to resist the appeals, which public expense should be reimbursed (s 117(2A)(b)).BERMAN J: