Novikov & Novikov

Case [2024] FedCFamC1A 56

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Novikov & Novikov [2024] FedCFamC1A 56

Appeal from:  Novikov & Novikov [2023] FedCFamC2F 1471
Appeal number: NAA 313 of 2023
File number: PAC 5790 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 11 April 2024
Catchwords:

FAMILY LAW – APPEAL – Leave to appeal – Appeal against interlocutory orders – Where the applicant would be prejudiced in obtaining long-outstanding child support which has since been recovered on her behalf by the Child Support Agency if leave to appeal is not granted – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant would suffer a substantial injustice if leave to appeal was not granted – Where the primary judged erred in considering that the medical certificate tendered was adequate for the purpose of explaining non-attendance – Leave to appeal granted.

FAMILY LAW – APPEAL – Where the appellant contends that the primary judge misapplied the discretion conferred by r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant and second respondent contend that there was no reasonable basis for the primary judge to set aside orders made by another judge – Where the first respondent husband did not appear nor participate during the appeal hearing – Where the appellate court deems it appropriate to re-exercises discretion pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Appeal upheld – Orders made to vacate all further listings filed by the first respondent – Orders made for the first respondent to pay the costs of the appellant and second respondent in a lump sum amount within 28 days.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.17
Cases cited:

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

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Scott (No 4) [2023] FedCFamC1A 239

Stoian & Fiening (Costs) [2014] FamCA 944

UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107

Number of paragraphs: 64
Date of hearing: 11 April 2024
Place: Sydney
Counsel for the Appellant: Mr Teoh
Solicitor for the Appellant: G & S Law Group
The First Respondent: Litigant in person (did not participate)
Counsel for the Second Respondent: Mr Kaplan
Solicitor for the Second Respondent: Hunt & Hunt Lawyers

ORDERS

NAA 313 of 2023
PAC 5790 of 2020

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

MS NOVIKOV

Appellant
AND:

MR NOVIKOV

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

11 APRIL 2024

THE COURT ORDERS THAT:

1.The appellant is granted leave to appeal.

2.The Application in an Appeal filed by the appellant on 28 March 2024 is dismissed.

3.Appeal NAA 313 of 2023 is…

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AGLC
Novikov & Novikov [2024] FedCFamC1A 56
Case
[2024] FedCFamC1A 56
Decision Date

CaseChat Overview and Summary

In the matter of Novikov v Novikov, the Court of Appeal granted the appellant leave to appeal and subsequently upheld the appeal. The primary issues before the court were whether the primary judge correctly exercised his discretion in setting aside certain orders, and if the procedural fairness was maintained during the proceedings. The appellant argued that the primary judge erred in setting aside orders made in the absence of the respondent, and that the judge misapplied the discretion conferred by Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court found that the primary judge acted on the wrong principle and failed to take into account material considerations, including the relevance of the medical certificate provided by the respondent. The court concluded that the primary judge's decision to set aside the orders was unreasonable and unjust.

The court re-exercised its discretion and set aside the orders made by the primary judge, substituting them with orders dismissing the respondent's application. The court also ordered that the respondent pay the costs of the appellant and the second respondent. Furthermore, all further listings and applications filed by the respondent were vacated. This decision ensures that the appellant can recover long-outstanding child support, which was recently recovered by the Child Support Agency. The court's ruling underscores the importance of correctly applying legal principles and considering all relevant factors when exercising discretionary powers in family law proceedings.

Orders

Orders of the court

NAA 313 of 2023

PAC 5790 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS NOVIKOV

Appellant

AND:

MR NOVIKOV

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

11 APRIL 2024

THE COURT ORDERS THAT:

1. The appellant is granted leave to appeal.

2. The Application in an Appeal filed by the appellant on 28 March 2024 is dismissed.

3. Appeal NAA 313 of 2023 is upheld.

4. Orders 2 and 5 made by the primary judge on 16 October 2023 be set aside and substituted with an order dismissing proposed Order 3 of the first respondent’s Application in a Proceeding filed 4 September 2023.

5. The first respondent is to pay the appellant’s costs in the lump sum amount of $10,000 within 28 days.

6. The first respondent is to pay the costs of the second respondent in the lump sum amount of $2,778 within 28 days.

7. All further listings before the Federal Circuit and Family Court of Australia (Division 2) relating to the Further Amended Initiating Application filed by the first respondent on 31 March 2022, together with all other extant applications filed by the first respondent are vacated.

Background

Background to the litigation

For reasons which I explain, leave should be given, and the appeal should be upheld.BACKGROUND Drawing upon and supplementing the appellant’s Summary of Argument filed 8 February 2024, which sets out the relevant procedural background, as follows. On 2 November 2020, the primary proceedings commenced by the first respondent in the present proceedings (the applicant in the primary proceedings). In that application, the first respondent sought parenting orders, property orders and orders seeking a dismissal of a decision of the Child Support Tribunal of 3 April 2017. On 31 March 2022, the first respondent filed and a Further Amended Initiating Application. On 15 February 2023, the Court made final parenting orders with the consent of the parties and the Independent Children’s Lawyer. The proceedings in respect of the first respondent’s property and child support were adjourned to 29 June 2023 for final hearing. On 29 June 2023, Judge Myers made orders dismissing the first respondent’s application for leave to commence proceedings out of time, discharging all previous orders and dismissing all applications as contained in the Further Amended Initiating Application filed 31 March 2022. His Honour made orders that the first respondent pay the appellant’s costs fixed in the sum of $29,496 and the second respondent’s costs (the Child Support Registrar) in the sum of $6,061.69, out of the trust account of the first respondent’s previous solicitors. Subsequent to the orders made by the first judge on 29 June 2023, the Child Support Agency took action to recover arrears of child support payable by the husband, which totalled the sum of approximately $150,000. That action was taken in circumstances where one of the orders made on 29 June 2023 set aside a stay that had, up until the date of that order, precluded the Child Support Agency from recovering the arrears of child support. By Application in a Proceeding filed on behalf of the first respondent, the first respondent sought injunctions against the disbursement of moneys pursuant to the orders that were paid to the appellant by the Child Support Agency on or about 28 July 2023; an injunction in relation to the costs awarded to the appellant pursuant to the June Orders and to set aside the June Orders, in particular Orders 3(a)–(d). On 16 October 2023, on the first return date for the Application, the primary judge made orders, inter alia, setting aside Orders 3(a)–(f) of the June Orders and otherwise dismissing the Application. The Court made further procedural orders in relation to the property and child support orders sought by the first respondent in his Further Amended Initiating Application.GROUNDS OF APPEAL The grounds of appeal are set out in a Notice of Appeal filed 13 November 2023. There are three grounds of appeal, as follows:1.In ordering that the Orders 3(a) to (f) of Judge Myers made on 29 June 2023 be set aside, [the primary judge] misapplied the discretion that the Court has under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.2.His Honour failed to afford the Applicant and Second Respondent procedural fairness by proceeding to hear and determine the application on the first return date being 16 October 2023 and by admitting into evidence material served by the Applicant that was not served on the Respondent in accordance with orders made by [the primary judge] on 24 August 2023.3. His Honour erred by setting aside the costs orders in 3 (e) when those orders related, at least in part, to the parenting proceedings that remained finalised and that were not subject to an Application in a proceeding to set them aside.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the purpose of determining the question of leave and the substance of appeal, it is only necessary for me to consider the first ground.THE DECISION OF THE PRIMARY JUDGE The primary judge noted that r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) empowers the Court to set aside an order, for reasons which include the non-attendance of a party to the proceedings. Relevantly, r 10.13(1)(a) of the Rules provides that the Court may at any time vary or set aside an order if it was made “in the absence of a party”. In determining that it was appropriate to set out the orders made by the Judge Myers on 29 June 2023, the primary judge stated at [3] of his reasons that: The father’s evidence before the Court at this interim hearing indicates, on the balance of probabilities, that he was sick on 29 June 2023 and, thereby, could not appear before Judge Myers and/or could not give adequate instructions to [his solicitor]. Under Rule 10.13 of this Court’s Rules, the Court may at any time set aside an Order if it was made in the absence of a party. Again, the Court finds that the father did not appear before Judge Myers on 29 June 2023 and/or was unable to give adequate instructions to [his solicitor], because he was sick. Accordingly, the Court sets aside Orders 3(a), (b), (c), (d), (e) and (f) of Judge Myer’s Orders dated 29 June 2023. It is apparent from that passage that the decision of the primary judge to set aside the earlier orders was his satisfaction that, on 29 June 2023, the applicant husband was “sick”, such that he was unable to participate in the proceedings or give instructions to his legal advisor. RELEVANT PRINCIPLES In circumstances where this is an appeal against an exercise of discretion by the primary judge who set aside the earlier orders, it is necessary for an appellant to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 which establishes that appellate intervention may be required where a primary judge:(1)Acts upon a wrong principle; (2)Allows extraneous or irrelevant matters to guide or affect the decision; (3)Mistakes the facts; (4)Fails to take into account some material consideration; or(5)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust. The relevant principles to apply in determining whether orders made by the Court should be set aside as a result of a party’s non-attendance were succinctly summarised by Austin J in Scott (No 4) [2023] FedCFamC1A 239 (“Scott (No 4)”) where his Honour said at [24]:Before the Court will be persuaded to vary or set aside an order made in a party’s absence, the aggrieved party must be able to demonstrate, first, a reasonable excuse for having failed to appear in the first instance, and secondly, reason to suspect the result might have been different had the party appeared and been able to present the case he or she intended (Allesch v Maunz (2000) 203 CLR 172 at [28] and [48]–[50]).

Ratio Decidendi

Legal Principle Established

In essence, the test is in two parts: the first is the requirement for the party who failed to appear to establish a reasonable excuse for non-attendance; and second, if the Court is satisfied that the non-attending party had a reasonable excuse, the Court then moves on to consider whether there was, in any event, a reasonable prospect that the non-appearing party would have obtained a different outcome had they participated in the proceedings.CONSIDERATION In considering the grounds of appeal, I am satisfied that the primary judge erred in several respects: firstly, that he acted upon wrong principle; secondly, that his Honour considered irrelevant matters in determining that the respondent husband was unable to participate in the proceedings, and thirdly, he failed to take into account a material consideration. In dealing with the test adumbrated by Austin J in Scott (No 4), I note the evidence presented by the first respondent to establish that he was sick included his lay assessment of incapacity as a result of pain that he attested he was suffering. In support of that assertion, the first respondent relied upon a medical certificate dated 28 June 2023 that had been marked as Exhibit “A” in the proceedings on 29 June 2023. The question as to whether the first respondent’s ill health was such that he was unable to participate in the proceedings on 29 June 2023 needed to be considered in the context where the proceedings were to be conducted remotely by way of Microsoft Teams. That is, the parties were not required to physically attend Court. The contemporary medical evidence relied upon by the first respondent was in the form of a pro forma medical certificate provided by the first respondent’s general practitioner which stated that the first respondent was:Suffering from: Acute on chronic left groin pain with fever.In my opinion, he/she will be unfit for his/her normal work from_29/06/2023 ____ to _30/06/2023 ____ inclusive.(As per the original) I infer that the certificate was pro forma insofar as the certificate refers to “his/her”, and also in terms of the relevant dates, it includes a pro forma space on the certificate to insert those dates. The evidentiary material presented by the first respondent at the proceedings before the primary judge included an affidavit filed 1 April 2022, indicating that the first respondent has had issues with his groin since at least 2016. Despite that, it is quite apparent that, in the period subsequent to 2016, the first respondent has been able to engage with lawyers and participate in the legal proceedings at various stages since the proceedings were commenced in 2020. Accordingly, in the context of that pre-existing condition, the medical certificate produced to the Court on 29 June 2023 is critical in determining whether the first respondent was incapable of participating in the electronic hearing on 29 June 2023. His Honour was, with respect, not in a position to make that determination on the basis of the medical certificate, because it did not address the critical question. The critical question was whether the afflictions from which the first respondent was reportedly suffering were such that they precluded him from participating in the electronic hearing. The question as to whether the first respondent was or was not “fit for work” was irrelevant to that determination.