Naisby & Naisby (No. 2)
[2021] FamCAFC 157
•24 August 2021
FAMILY COURT OF AUSTRALIA
Naisby & Naisby (No. 2) [2021] FamCAFC 157
Appeal from: N/A – Review of Registrar’s decision made 19 July 2021 Appeal number(s): NOA 45 of 2020 File number(s): BRC 4847 of 2016 Judgment of: AINSLIE-WALLACE J Date of judgment: 24 August 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF DECISION OF THE APPEAL REGISTRAR – Where the applicant seeks to review the decision of the Appeal Registrar to refuse to accept for filing an Application in an Appeal to reinstate an appeal – Where the appeal had been dismissed by the Full Court with the consent of the parties – Where the appellate jurisdiction of the Full Court has been exhausted – Assertions of uninformed consent – Complaints of judicial conduct – Where the applicant misunderstands the nature of the appeal process – Application for review dismissed. Legislation: Family Law Act 1975 (Cth) ss 94AAA(10)(g), 94(2), 94(2D)(g), 123
Family Law Rules 2004 (Cth) Pt 18.2, rr 18.07, 22.40, 22.41
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bele v Vaughan (No 2) (2012) 268 FLR 411; [2012] FamCAFC 125
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Wellington & Child Support Registrar [2012] FamCAFC 34
Division: Appeal Division Number of paragraphs: 55 Date of hearing: 12 August 2021 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person Independent Children's Lawyer: Legal Aid Queensland (did not participate) ORDERS
NOA 45 of 2020
BRC 4847 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR NAISBY
Applicant
AND: MS NAISBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
24 AUGUST 2021
THE COURT ORDERS THAT:
1.Application to review a decision of a registrar filed on 23 July 2021 is dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Naisby & Naisby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
INTRODUCTION
On 19 July 2021, Mr Naisby (“the father”) attempted to file an Application in an Appeal seeking to reinstate his appeal from parenting orders made by a judge of the Federal Circuit Court on 5 June 2020 (NOA 45 of 2020). The Appeal Registrar declined to file the application because the appeal sought to be reinstated had been dismissed by the Full Court on 2 March 2021 with the consent of the father, Ms Naisby (“the mother”) and the Independent Children's Lawyer. On 23 July 2021, the father filed an application to review the Registrar’s decision refusing to file the application.
The application for review was listed for hearing on 12 August 2021, and for the reasons which follow, it will be dismissed.
BACKGROUND
The father and mother have been engaged in parenting and property litigation in the Federal Circuit Court since 2016. Commencing in February 2019 and concluding in October 2019 and over eight days of hearing, the parties’ parenting and property settlement proceedings were heard by the primary judge. The primary judge made final parenting orders on 5 June 2020 and determined the property settlement proceedings by final orders made on 1 September 2020. The father lodged appeals in respect of both the property and parenting orders. Both appeals were listed for hearing before the Full Court on 2 March 2021.
The final parenting orders provided that the two youngest children of the parties’ relationship return to live with the mother, they having previously lived with the father as a result of interim orders made in April 2018. An older child of the parties had been living with the father and he was unaffected by the primary judge’s parenting orders. The parenting orders further provide for time to be spent between the children and the father.
Since the father placed considerable significance on what happened during the appeal hearing to support his application, it is necessary to traverse that hearing in some detail.
At the commencement of the appeal hearing, the presiding judge indicated to the parties that the Court would consider the property appeal first, followed by an adjournment, and then move to consider the parenting appeal. No one objected to that course.
At the commencement of the father’s argument on the property appeal, the presiding judge observed that there was substance to the challenge advanced by him that the primary judge’s order purporting to notify the Trustee of the relevant superannuation fund was inoperative. The presiding judge raised this with counsel for the mother as follows:
RYAN J: You heard me indicate at the opening my thoughts in relation to order 4. I can’t see how the order as to the operative time is an order as to notice. There is no application to adduce further evidence in the appeal to prove service on the trustee.
[COUNSEL FOR THE MOTHER]: There is not, your Honour.
RYAN J: It is going to cause you a lot of difficulty. And you will need to consider – if that ground of appeal is successful, then what? Is the adjustment at some 314-odd thousand so substantial that it brings the whole of the property orders down and require remittal, or is it an error that, if we’re satisfied it is an error, that can be dealt with by us by way of re-exercise, including giving appropriate notice to the trustee?...[1]
[1] Transcript 2 March 2021, p.29 lines 28–38
Although counsel for the mother ultimately conceded the identified error, she sought, in effect that the Full Court re-exercise the primary judge’s discretion to rectify the error by giving notice to the Trustee.
At the conclusion of the submissions by counsel for the mother on the balance of the father’s appeal grounds, the presiding judge said:
RYAN J: All right. Thank you. Thank you for that. [counsel for the mother], something I raised earlier is what would be the consequences of us finding error beyond the scope of the challenge to order 4 in the superannuation splitting order? It seems to me, for us to be in a position to re-exercise, we need to have findings in the judgment to work from and we don’t have them, and we have thousands of pages of material. So the prospect of a re-exercise against the background of few findings is a prospect that would seem unavailable in the event that one or other of the grounds succeeds.[2]
[2] Transcript 2 March 2021, p.47 lines 16–22
Counsel for the mother conceded that in those circumstances, there was no option but to remit the matter for re-hearing. Turning then to the father, the presiding judge indicated that if the parenting appeal was successful, the Full Court could not re-exercise the discretion but would have no option but to remit the parenting issues for re-hearing. The presiding judge exhorted the father and the mother to consider the effect on the children of a continuation of the parenting proceedings and suggested they attempt to resolve the dispute.
The Court adjourned at 12.52 pm and resumed at 3.11 pm at which point the Independent Children's Lawyer told the court that:
…It appears and, I will be corrected if I am wrong, there is an agreement in principle, between the mother and the father, that the father will not pursue his appeal in relation to the parenting matters. Upon the agreement – to amendment to the current orders, namely, in terms of changeover and school holidays.[3]
[3] Transcript 2 March 2021, p.48 lines 26–30
As to how the parenting appeal was to be resolved, counsel for the Independent Children's Lawyer said:
…Well, I think the intention of the parties, your Honour, is for it to be by way of order pursuant to rule 22.41, which … It’s consent orders on appeal… [4]
[4] Transcript 2 March 2021, p.50 lines 6–13
Later that afternoon the parties returned to Court with a signed minute of consent orders. The presiding judge said:
… [The father], just for the record, you’re content that the court makes these orders?
[THE FATHER]: I am, your Honour.[5]
[5] Transcript 2 March 2021, p.51 lines 15–17
It was necessary that a judge of the Federal Circuit Court make the amended parenting orders and they were made later that day.
The Full Court reserved its decision on the property appeal and on 11 June 2021 the Court delivered its reasons and made orders in respect of the property appeal which saw the appeal being allowed and the proceedings remitted for rehearing in the Federal Circuit Court.
APPLICATION FOR REVIEW
As I have said, on 19 July 2021 the father attempted to file an Application in an Appeal seeking reinstatement of the appeal against the parenting orders. The Appeal Registrar’s refusal to accept the application for filing is the subject of the present review.
Rule 22.40 of the Family Law Rules 2004 (Cth) (“the Rules”) provides for review of a Regional Appeal Registrar’s order by a judge of the Appeal Division. Although Pt 18.2 of the Rules deals with review of decisions made by Registrars, it does not apply to an application to review an order made by an Appeal Registrar (r 18.07). Thus, the Rules do not contain any particular provision about the conduct of the Court in the review of an order made by an Appeal Registrar. However, reviews of orders made by Appeal Registrars by single judges of this Court are conducted on the basis of a hearing de novo (see Bele v Vaughan (No 2) (2012) 268 FLR 411 at [44] and Wellington & Child Support Registrar [2012] FamCAFC 34 at [25]).
The rationale for proceeding to hear an application for review of a Registrar’s exercise of power as a hearing de novo, rather than as an appeal requiring the establishment of error is a cautionary choice as illustrated in the reasons of Mason CJ and Deane J in Harris v Caladine (1991) 172 CLR 84 at 95.
In separate reasons and agreeing with Mason CJ and Dean J, Dawson J described the nature of a review conducted as a de novo hearing, compared to an appeal (at 125–126):
…For where the function of exercising a discretion is delegated by a court, as it may be delegated to a Registrar, the exercise of the delegated discretion cannot confined the exercise of the same discretion by the person in whom it is primarily reposed: Evans v Bartlam; Blundell v. Rimmer; and C.M. Van Stillevoldt B.V. v. E.L. Carriers Inc.. Upon a hearing by way of review of the decision of a Registrar the court is exercising its own discretion. There are not the same restrictions which exist when there is an appeal from a judge to whom a discretion is confided, rather than delegated, at first instance. In that event the appeal court must, before interfering, be persuaded that the judge was in error in the exercise of the discretion, either by acting upon wrong principles, mistaking the facts, or by taking into account irrelevant considerations or failing to take into account relevant considerations: House v. The King; Norbis v Norbis…
(Footnotes omitted)
Thus in considering the review, the court is entitled to have regard to the material before the Registrar together with any further evidence filed by the parties and here, I have taken into account the material filed by the father as well as the affidavit sworn on 16 July 2021 which was not accepted for filing but which was attached to the father’s affidavit filed on 23 July 2021. The mother filed a brief affidavit seeking that the application be dismissed.
In essence, the father argues that he is entitled to seek reinstatement of the parenting appeal because his appeal was dismissed pursuant to r 22.41 of the Rules and as such it is amenable to being reinstated by reference to s 94AAA(10)(g) of the Family Law Act 1975 (Cth) (“the Act”). Section 94AAA applies only to appeals to the Family Court of Australia from the Federal Circuit Court and Magistrates Court of Western Australia. The relevant section is
s 94(2D)(g).
Section 94(2D) concerns procedural applications which may be heard and determined by a single judge of the Appeal Division (or another judge). Subsection (g) includes in that list:
(g) to reinstate an appeal dismissed under a provision of the Rules of Court;
Seminal to the father’s application is the premise that his appeal was “dismissed” pursuant to
r 22.41 of the Rules.
Rule 22.41 is found under the heading “Consent orders on appeal” and says:
(1) This rule applies if the parties to an appeal agree about the orders the court will be asked to make on appeal.
(2) The parties may file a draft consent order, setting out the terms of their agreement.
(3) If the parties:
(a) agree about the orders the court will be asked to make on appeal; and
(b) disagree about the order for costs;
the Regional Appeal Registrar may fix a date for hearing for the argument about costs, without requiring appeal books to be prepared or a procedural hearing to be held.
(Emphasis added)
This rule neither empowers nor compels the Full Court to act on the parties’ agreement. It provides a mechanism by which parties who have agreed on an outcome in an appeal may put that agreement before the Full Court. That is what happened here, although since the parties were before the Full Court when they agreed as to the outcome of the appeal, reference to the rule was strictly unnecessary.
The father argued that s 94(2D)(g) must refer to r 22.41 because there is no other rule which provides for the dismissal of an appeal.
Parliament has conferred on the judges, or a majority of them, the power to make rules not inconsistent with the Act. Those powers are generally found in s 123 of the Act and relevantly include matters of practice and procedure (s 123(1)). Rule 22.41 is such a rule. However, it does not follow that each incidence of the rule-making power must, in turn, beget a rule. That is a matter for the judges and it is uncontroversial that the judges do not always make rules in relation to every power conferred on them.
Section 94(2D)(g) anticipates that in accordance with s 123(1) the judges might make rules which result in the dismissal of an appeal by operation of the rule itself. If they did and an appeal was dismissed by reason of that rule, the provision enables an application for the appeal to be reinstated to be determined by a judge of the Appeal Division or as otherwise provided. It follows that unless there is a rule which automatically dismisses an appeal the provision has no work to do. Such is the case here. There is no rule which provides for the dismissal of an appeal which might engage s 94(2D)(g).
But even if there was such a rule, the father’s appeal was dismissed by an order and not by reason of the operation of a rule.
The effect of the Full Court’s order in dismissing the appeal concluded the proceedings and exhausted the jurisdiction of the Full Court. Section 94(2D)(g) cannot be called in aid to reinstate it.
That the jurisdiction of the Full Court has been exhausted in respect to the parenting appeal is sufficient then to dismiss the application for review and affirm the decision of the Appeal Registrar.
However, the father’s assertion that his withdrawal of the parenting appeal and his consent to orders that it be dismissed was not a true consent but rather, he was pressured into consenting, requires examination.
In his affidavits, the father makes a number of complaints about how the appeal was conducted and about the comments directed to him from the bench which, he said, forced his hand in consenting to withdrawing the appeal with the result that it was dismissed.
In his affidavit filed 23 July 2021 at paragraph 9, the father says his consent was:
…done as a consequence of the strong encouragement of the Full Court to do so.
Further, he said that he was “on the back foot” and “flustered and befuddled” during the hearing of the property appeal because he had expected the proceedings to commence with the hearing of the parenting appeal and he found it extremely stressful when it did not.[6] While it must be accepted that he felt flustered and unsettled by the order in which the appeals were considered, just what weight this submission bears in considering the father’s submission that he was pressured into agreeing to withdraw his parenting appeal is difficult to determine. Certainly recourse to the transcript of the appeal hearing does not appear to support this. The transcript shows that the father spoke to the grounds of appeal in amplification of his filed Summary of Argument and he demonstrated an understanding not only of the legal principles to be applied to the determination of property settlement proceedings but was aware of the leading cases on the points. He seemed well able to respond to and answer questions from the bench about his property appeal. He argued each of the grounds and supported them with extensive reference to the appeal book and the transcript before the primary judge.
[6] Father’s affidavit sworn 16 July 2021, paragraph 16
The father referred to the comments directed to him by the presiding judge at the conclusion of the property appeal and to which I have already referred at [10].
Just before taking the lunch adjournment, the presiding judge said to the father:
RYAN J: So [the father], you would understand that what we’re discussing now is if there is error over and above the superannuation order error. I can see that you invite us to re-exercise. I can’t see, speaking for myself, that that is a possibility and it’s something to be thought about over the luncheon adjournment if that eventuality comes to pass. It is always a possibility. It’s never too late for people to think about, well, how do we finalise the proceedings ourselves. We will resume after lunch with the parenting appeal but, again, [the father], I would identify for you, you ask us to re-exercise in the event that you succeed in relation to it without expressing any view at all in relation to the merit of your appeal.
I cannot see how we could permissibly re-exercise her Honour’s discretion in the parenting matter. And if that appeal succeeds, then, assuming the first is successful and remitted, then it too would have to be remitted for rehearing. And I want you to think, both of you, [the mother] and [the father], as parents, what this will do to [the children], particularly, but the older boys as well. If anything leaps through from the pages of this transcript and these experts’ report, is what a tragedy this parental dispute is for your children. The risks to them now and into the future I doubt can be overstated, arising from being caught up in this travesty of a piece of litigation. It is within your power and, I would suggest to you, your parental responsibility to make one final attempt to give them the peace that they deserve. So think about that and we will resume at 2 o’clock.[7]
[7] Transcript 2 March 2021, p.47 line 37 to p.48 line 11
In his affidavit sworn 16 July 2021, the father said:
23. I did not fully understand what this meant straight away. During a very emotional lunch break, in addition to attempting to regather myself after the challenging morning, my current wife and I discussed what we thought the Full Court meant and what was being suggested we should consider. Again, my lay person interpretation of this was that they were strongly encouraging me to consider withdrawing my appeal.
The father further contends that:
42.… A “suggestion” made by the Full Court to an unrepresented party in the highly emotional circumstances of a parenting decision, with an hour to make that decision without any access to legal advice… is going to carry far more weight than a simple suggestion.
The father said that he took the opportunity of the discussions to negotiate some changes to the existing parenting orders and said:
31. We returned to the Full Court, and I consented to the withdrawal of the parenting appeal…
It is worth noting here that the presiding judge’s remarks were made very shortly before the Court adjourned for lunch. No time restraints were imposed on the parties and, no doubt, had there been no negotiations the Full Court would have returned and considered the parenting appeal. However, the parties did negotiate and throughout the afternoon messages were sent to the bench indicating that the parties were continuing in negotiations. The matter returned to court briefly at 3.11 pm and then the negotiations resumed culminating in the dismissal of the parenting appeal.
However, before concluding whether the father withdrew the parenting appeal because of a “suggestion” from the bench, it is necessary to address the father’s misconception about the nature of the appeal process.
It is apparent from the father’s affidavit that he sees the appeal process not as a mechanism for identifying and correcting legal error, but a means, absent any other mechanism, by which complaints may be made about the conduct of judges, of bringing to light “deficiencies and the injustices” delivered in the judgment for the benefit of his “family and broader society”. He further contends “[i]t is only through the appeal process that the possibility of these errors repeating themselves can be minimised”.[8]
[8] Father’s affidavit sworn 16 July 2021, paragraph 53
The father also speaks in his affidavit of not being able to use the appeal to “defend Mr X” (the older child who lived with him and who the primary judge found posed an emotional and physical threat to the younger two children).
Nor was the father’s stated intention in pressing the appeal and now seeking to reinstate it, to seek different parenting orders because as he has said, one of the options he later considered was to press the appeal but withdraw if the Full Court would not re-exercise the primary judge’s discretion.[9]
[9] Father’s affidavit sworn 16 July 2021, paragraphs 35 and 53
The father’s stated intention of using the appeal process to expose what he saw as deficiencies in the reasons and to correct the primary judge’s conduct frankly misunderstands the purpose of an appeal and to pursue an appeal for those reasons could well be seen as an abuse of process.
Section 94(2) of the Act articulates the nature of the appellate jurisdiction of the Family Court which is to "affirm, reverse or vary the decree or decision the subject of the appeal" and to "make such decree or decision as, in the opinion of the court, ought to have been made in the first instance" or if it considers it appropriate to "order a re-hearing, on such terms and conditions, if any, as it considers appropriate".
On this point, in Allesch v Maunz (2000) 203 CLR 172 (“Allesch v Maunz”), the High Court said at [30]:
Although, on an appeal by way of rehearing from a discretionary judgment, an appellate court may, itself, exercise the discretion in question by reference to circumstances as they then exist, it is not bound to do so. It may, instead, set aside the order under appeal and remit the matter for rehearing or, in terms of s 94(2) of the Act "order a re-hearing, on such terms and conditions, if any, as it considers appropriate." And where circumstances have or are likely to have changed between the original hearing and the disposition of the appeal, it is not uncommon for an appellate court to remit the matter for rehearing rather than, itself, exercise the discretion in question.
The nature of the jurisdiction of the Full Court of the Family Court was described in CDJ v VAJ (1998) 197 CLR 172 at [111] thus:
…Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a "trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence."
(Footnotes omitted)
Further in Allesch v Maunz the Court said at [23]:
… the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error and … on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.
(Footnotes omitted)
Clearly then complaints as to judicial conduct, denunciation of the hearing process or vindication of parties or witnesses have no place in an appeal in the Family Court. The father complains that the Full Court did not provide him “with information on the courses of action available to me to address my concerns and the consequences of each of those decisions to allow me to make an informed decision”.[10] This assertion puts in sharp focus the father’s misunderstanding of the appeal process and the role of the Full Court. He had two options open to him – to press on with the appeal or to withdraw it. He chose to withdraw the appeal and it was dismissed.
[10] Father’s affidavit sworn16 July 2021, paragraph 41
Returning then to the father’s complaint that while he consented to the appeal being withdrawn, it was not fully informed and was the result of the suggestion of the bench. It is clear from his evidence that at the point when the father understood that if his parenting appeal was successful the Full Court would not re-exercise the primary judge’s discretion but remit it to the Federal Circuit Court for rehearing, he withdrew it, conduct entirely consistent with his evidence to which I have earlier referred.
The father had ample time to consider whether to proceed, he discussed the prospect with the Independent Children's Lawyer and, ultimately conceded.
Nothing said by the bench could remotely be seen as pressure but rather a plea to both the father and the mother to consider their children’s wellbeing and bring the proceedings to a halt.
The Full Court has no jurisdiction to consider the question, no appeal presently exists and thus, no Application in an Appeal can be filed. The decision of the Appeal Registrar was entirely correct and the review application will be dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate: Susan Brennan
Dated: 24 August 2021
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