Molenaar & Molenaar
[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Family Law Rules 2004 (Cth) r 15.07 as repealed by the Family Law Amendment Rules 2009 (No. 1) (SLI No 33 of 2009) (Cth) r 3 sch 4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 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MOLENAAR
Appellant
AND: MS MOLENAAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, BERMAN & HARPER JJ
DATE OF ORDER:
10 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 27 October 2021 is dismissed.
2.The Application in an Appeal filed on 3 November 2021 is dismissed.
3.Appeal SOA 9 of 2021 is dismissed.
4.Appeal SOA 34 of 2021 is dismissed.
5.Appeal SOA 35 of 2021 is dismissed.
6.The appellant shall pay the respondent’s costs of and incidental to the appeals in the fixed sum of $3,570.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Molenaar & Molenaar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 5 February 2021, a judge of the Federal Circuit Court of Australia (as the Court was then known) made parenting and property settlement orders between the appellant husband and the respondent wife pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The husband’s first appeal lies from those orders (Appeal SOA 9 of 2021).
Although the husband purports to appeal from all those orders, the generic grounds of appeal do not distinguish between the parenting and property settlement orders. The Summary of Argument filed in support of the grounds of appeal only makes explicit reference to statutory provisions dealing with the parties’ financial circumstances, implying the husband is unable to identify any appealable error in respect of the parenting orders. It was not until the husband belatedly filed an application to adduce further evidence that it became apparent he wanted the parenting dispute re-heard.
The property settlement orders made provision for the husband to vacate the former family home (“the property”), for the parties to sell it, and for the net proceeds of sale to be distributed between the parties in stipulated proportions favouring the wife. The parenting orders provided for the children to live with the wife and for her to have sole parental responsibility for them. The children are to spend regular time with the husband, but subject to the “substantial supervision” of the paternal grandmother or paternal aunt.
On 11 May 2021, the primary judge made more orders to facilitate implementation of the property settlement orders, declaring the wife was entitled to vacant possession of the property and ordering the husband to vacate it within 14 days, but then adjourning the wife’s application for future consideration of the need for any further enforcement orders. The husband’s second appeal lies from those orders (Appeal SOA 34 of 2021).
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)
The wife opposed any adjournment because, by then, the husband had already had four months within which to make alternate arrangements and vacate the property in accordance with the substantive orders made in February 2021. The adjournment was refused and an enforcement warrant was subsequently issued, though notations were endorsed upon the orders to avoid the warrant being executed while the children were spending time with the husband at the property (“the third orders”).
During the appeal hearing, we were informed that the warrant was not served on the husband until 29 September 2021 and was finally executed against him to secure vacant possession of the property for the wife on 29 October 2021, but it is yet to be sold.
The husband appeared at the hearing of the appeal without legal representation. His Summary of Argument, belatedly filed in breach of procedural orders made by the appeal registrar, was evidently prepared without the benefit of legal advice or assistance. The lawyers engaged by the husband during the appeal withdrew from it several weeks before the appeal hearing. The husband was allowed to amplify the submissions made in his written outline, but was refused permission to make any oral submissions which were unheralded by the contents of the written outline, as that would have denied the wife the procedural fairness of having advance notice of the arguments she would need to meet.
Application for Summary Dismissal
On 27 October 2021, the wife filed an Application in an Appeal seeking the summary dismissal of all three appeals. The wife did not seek that the application be determined in the parties’ absence and so the application was made returnable on 10 November 2021, the day appointed for the substantive hearing of the appeals.
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).
Rather than dealing with the three appeals separately, we will address them collectively by isolating the identical grounds which are relevant to each. These reasons are given in short form because the appeals should be dismissed and do not raise any question of general principle (s 36(2) of the FCFCOA Act).
As the law requires, the complaints of bias and denial of procedural fairness will be addressed first (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Ground 1 - bias
In support of this ground, the husband simply submitted this:
The High Court Decision of Johnson v Johnson (2000) CLR 488
(As per the original)
The mere citation of High Court authority which establishes the principles of apprehended judicial bias does not substantiate the existence of any such apprehended judicial bias against the husband on any of the three occasions which led to the orders now the subject of the appeals. This ground should fail.
Ground 3 – denial of procedural fairness
In support of this ground, the husband submitted:
Family Law Rules 15.06, Rule 15.07 F and S [2005] FamCA 44,
(As per the original)
Rule 15.07 of the Family Law Rules 2004 (Cth) (“the Rules”) was repealed on 1 March 2009, long before the three hearings, but in any event the Rules, which have been repealed in entirety since the last hearing, did not apply because the primary judge was required to instead apply the Federal Circuit Court Rules 2001 (Cth).
The Full Court in F & S (2005) FLC 93-208 merely recognised, quite uncontroversially, that procedural fairness ordinarily requires that a party should be served with the evidence relied upon by another party sufficiently in advance of trial to enable its timely consideration. In that particular instance, the appeal was allowed because the primary judge allowed the tender of, and then relied upon, an affidavit which had only been filed on the morning of the hearing, it not having been served upon the appellant, who was not present before the primary judge.
In this instance, the husband did not satisfactorily identify the evidence with which he was allegedly either belatedly served or not served at all, in which case this ground should fail.
The hearing which resulted in the first orders was conducted over three days, commencing on 27 January 2021. While the wife filed a financial statement and affidavit quite late (on 21 and 22 January 2021), the husband also filed two affidavits quite late, with one filed even later than the wife’s documents (on 20 and 27 January 2021).
The husband’s counsel was able to cross-examine the wife at length and was then permitted to adduce extensive oral evidence-in-chief from the husband to challenge those aspects of the wife’s evidence which were in dispute. In discussing whether that was an acceptable way to proceed, the primary judge and the husband’s counsel had this exchange:
HIS HONOUR: …. Is that acceptable, [counsel for the husband]?
[COUNSEL FOR THE HUSBAND]: Yes, your Honour. Yes.
(Transcript 29 January 2021, p.176 lines 5–7)
For the subsequent hearings on 11 May 2021 and 4 June 2021, which resulted in the second and third orders, the wife’s application and supporting affidavit were both filed on 29 April 2021. The primary judge found that material was served upon the husband by 4 May 2021, well before the second hearing. The primary judge also found the second orders were served upon the husband, as they required, well before the third hearing.
Ground 4 – factual error
In support of this ground of appeal, the husband submitted:
Section 79, 79A,
79a there has been a miscarriage of justice by reason given of fraud, Duress, Suppression of evidence (including failure to disclose relevant information), the giving of false evidence or other circumstance; Family Law Act.
Marsh And Marsh [2014] FamCAFC
(As per the original)
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 90-605
8.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:
I join in and support the reasons given by Austin J and agree that the Applications in an Appeal be dismissed, as well as the three appeals.
HARPER J:
I too agree that the three appeals should be dismissed for the reasons of the learned presiding judge.
AUSTIN J:
The orders of the Court will therefore be:
(1)The Application in an Appeal filed on 27 October 2021 is dismissed.
(2)The Application in an Appeal filed on 3 November 2021 is dismissed.
(3)Appeal SOA 9 of 2021 is dismissed.
(4)Appeal SOA 34 of 2021 is dismissed.
(5)Appeal SOA 35 of 2021 is dismissed.
(6)The appellant shall pay the respondent’s costs of and incidental to the appeals in the fixed sum of $3,570.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justices Austin, Berman & Harper. Associate:
Dated: 17 November 2021
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