OLOFSSON & OLOFSSON
[2019] FCCA 3467
•20 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLOFSSON & OLOFSSON | [2019] FCCA 3467 |
| Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside Notice of Discontinuance in parenting proceedings – consideration of correctness of decision in Laramie & Caul [2018] FCCA 1371 – whether the underlying principle of finality of proceedings should apply to parenting proceedings – whether section 15 of Federal Circuit Court of Australia Act 1999 (Cth) provides an alternate source of power. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CC, 69ZN, 69ZW, 79A, 81, pt.VII |
| Cases cited: Bailey v Marinoff [1971] HCA 49 |
| Applicant: | MS OLOFSSON |
| Respondent: | MR OLOFSSON |
| File Number: | PAC 6025 of 2016 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 4 October 2019 |
| Date of Last Submission: | 28 October 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 20 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Duffy Law Group |
| Solicitors for the Respondent: | Caldwell Martin Cox |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Campbelltown Family Law |
ORDERS
The Applicant Mother’s Application in a Case filed 22 August 2019 be dismissed.
The Respondent Father’s Amended Response filed 19 August 2019 be set down for Undefended Hearing on 12 March 2020 at 9:00am.
Any further evidence in support of the orders sought in the said Amended Response be filed and served by no later than 4:00pm on 20 February 2020.
The Respondent Father and the Independent Children’s Lawyer file and serve their minute of proposed order by no later than 4:00pm on 27 February 2020.
The Respondent Father and the Independent Children’s Lawyer file and serve a Case Outline document by no later than 4:00pm on 5 March 2020, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought;
(c)a brief summary of argument touching upon the matters set out s.60CC of the Act, with reference to the relevant evidence relied upon.
IT IS NOTED that publication of this judgment under the pseudonym Olofsson & Olofsson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
PAC 6025 of 2016
| MS OLOFSSON |
Applicant
And
| MR OLOFSSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children; [X], born … 2009, aged 10 years; and her brother [Y], born … 2014, aged 5 years. The precise issue that the Court must decide is whether the Mother’s Notice of Discontinuance filed 21 May 2019 should be set aside. Amongst other things, both the Independent Children's Lawyer and the Mother invite the Court to revisit the appropriateness in parenting cases of the principles set out in the decision of his Honour Judge Jarrett in Laramie & Caul [2018] FCCA 1371 (23 April 2018, hereafter referred to as ‘Laramie & Caul’). The Independent Children's Lawyer and the Mother also invite the Court to set aside the Notice of Discontinuance using its powers under section 15 of the Federal Circuit Court of Australia Act 1999 (Cth).
Background
The background facts are relatively uncontentious. Both parents are 39 years old. They commenced a relationship in 2000, started living together in 2001, and separated in 2015. At the time of separation the children remained living with their father. In May 2016 the parents entered into consent orders that provided for the Father to have sole parental responsibility for the children, for them to live with him, and to spend alternating weekends with their mother. For reasons that cannot be identified with precision for the time being the relationship between the children and their mother broke down. It is possible that the last time she spent regular time with the children was in March 2018. It seems as if in 2017 and 2018 both children were seeing a psychologist and there is some material that suggests that [X]’s psychologist recommended that her time with her mother cease. The Mother has a completely different perspective on how, and why, the children’s relationship with her broke down.
In any event, on 7 May 2018 the Mother filed a Contravention Application. In November 2018 the parents entered into consent orders in relation to supervised time but, for reasons that are unclear to the Court and are in any event contested, only one supervised contact visit occurred on 1 December 2018.
On 15 February 2019 the Mother filed an Application in which she sought that the children live with her. On 27 March 2019 the parents and children were ordered to attend a Child Inclusive Conference. However, before that conference could take place, on 21 May 2019 the Mother filed a Notice of Discontinuance in respect of both her Contravention Application, and her fresh parenting Application.
It seems that in August 2019 the Mother, through her solicitor, informed the Father, through his solicitors, that she wished to re-engage with the proceedings. Having regard to this Court’s decision in Laramie & Caul, the Mother filed on 22 August 2019 an Application in a Case seeking that the Notice of Discontinuance be set aside. By way of a Response to an Application in a Case filed 13 September 2019, the Father seeks orders that the Mother’s Application in a Case be dismissed and that she pay the Father’s costs on an indemnity basis. The Father’s Solicitor also sought a date for an undefended hearing in relation to this Response to the Mother’s Application for fresh orders in relation to the children.
The Court notes that even if it declines to set aside the Mother’s Notice of Discontinuance, it must still decide whether the orders sought by the Father in relation to the children are in their best interests. He seeks that the Orders made 31 May 2016 be discharged, that he have sole parental responsibility in relation to the children, but be obliged to keep the Mother informed of major decisions. Before the Mother’s time with the children recommences, but in any event within six months of the orders, the Mother is to complete a comprehensive psychiatric assessment and, subject to any diagnosis, attend and comply with regular counselling and medication as recommended. In addition the Mother would need to complete a Keeping Kids in Mind program, and submit to and pass three consecutive drug tests. Until the above occurs, the Mother would spend time with the children at Town A Contact Centre, at her expense. After a period of 12 months, and subject to the contact being satisfactory, the Mother’s time with the children would become unsupervised each alternate Saturday from 9:00am to 4:00pm, and on Mother’s Day and Christmas Eve.
In short the Father asserts (and the Mother denies) that the Mother lacks capacity to properly care for the children and, indeed, presents at least a risk of psychological harm to them. The Mother contends but the Father denies, that he is not only not encouraging the children’s relationship with her, but seeking to undermine the same.
The material before the Court
The Applicant relied on the following material:
a)Application in a Case filed 22 August 2019;
b)Affidavit of Ms Olofsson filed 27 September 2019;
c)Affidavit of Ms Olofsson filed 22 August 2019;
d)Case outline document received 3 October 2019; and
e)Written submissions received on 18 October 2019.
The Respondent relied on the following material:
a)Response to an Application in a Case filed 13 September 2019;
b)Affidavit of Mr Olofsson filed 13 September 2019;
c)Affidavit of Mr Olofsson filed 20 August 2019;
d)Case outline document received 1 October 2019; and
e)Written submissions received on 25 October 2019.
The Independent Children’s Lawyer relied on the following material;
a)Case outline document filed 30 September 2019; and
b)Written submissions received on 28 October 2019.
The Court expresses its appreciation to Ms Connor for the Father, Ms Kermode for the Mother and Ms Lam as the Independent Children’s Lawyer for their detailed and considered submissions in this case.
The Court’s decision in Laramie & Caul
The first thing to note about the decision of his Honour Judge Jarrett is that it was a decision made in the context of a family law case, albeit not a parenting application under Part VII of the Family Law Act 1975 (Cth). Whether that is significant or not remains to be seen.
His Honour’s conclusion at paragraph 3 of his Judgment was as follows:-
Whilst the Federal Circuit Court Rules 2001 provide for the filing of a notice of discontinuance, they do not provide for the withdrawal of one. Nor does the rule that permits the Court to interfere with a perfected judgment – r.16.05 – permit the Court to interfere with a discontinuance, it being an act of a party rather than an act of the Court.
No party in the present case submitted that his Honour’s interpretation of the Federal Circuit Court Rules 2001 (Cth) was incorrect.
What was contended, in effect, is that the rules about Notices of Discontinuance are inconsistent with the statutory obligation on the Court under Part VII of the Family Law Act 1975 to make orders which are in the best interests of children. The implied contention was that no rule found in the Federal Circuit Court Rules 2001 could fetter the otherwise broad discretion and jurisdiction given to a Judge under Part VII of the Family Law Act 1975.
Following on from this, or possibly in the alternative, the Court’s power to set aside a Notice of Discontinuance was, in any event, found in section 15 of the Federal Circuit Court of Australia Act 1999.
Judge Jarrett considered a number of authorities in Laramie & Caul. These are set out at paragraphs 4 - 12.
[4] There are some authorities that bear on the issue. In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, Ryan J considered the position where an applicant in this Court had discontinued some proceedings but then sought to have the discontinuance withdrawn.
[5] His Honour considered the relevant Rules – r.13.01 and r.13.02 of the then Federal Magistrates Court Rules– and then recorded this:
17. There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (1989) 2 All ER 743 where his Lordship said, at 747:
‘It was also not in dispute that if the action had been discontinued by an order made under order 21, rule 3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under order 15 rule 6(2). Order 21, though with amendments, can be traced through order 20 of the Rules of 1962 to order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case, however, the order did not provide for discontinuance under order 21, rule 3 and the application for the rectification of the order of 14 August 1985 had been dismissed.’ (emphasis added)
[6] The long and the short of that is that there is no power within the Rules to order the withdrawal of a notice of discontinuance or that it, in some other way, be recalled. However, the authorities do establish that the court has an inherent power to set aside a notice of discontinuance, in exceptional circumstances, in order to prevent injustice or abuse of its process. The circumstances in which that power arises were also described by Ryan J in SZFOZ. Where the discontinuance might involve an abuse of process or was procured by fraud the Court may, on application by a party affected by the offending conduct, set the discontinuance aside.
[7] There are a number of cases in this Court, at first instance, where that principle has been applied and a number of cases where this Court’s application of that principle has been examined on appeal. For example in Maddison v Qualtime Association Inc [2010] FMCA 25, Wilson FM, as he then was said at [30]:
Following on from a consideration of these cases, I conclude that where a notice of discontinuance has been filed in proceedings that were otherwise within the jurisdiction of this Court, the Court has the jurisdiction and the power to set aside the notice of discontinuance in circumstances where:
(a) Its filing was procured by fraud or as an abuse of process;
(b) It is necessary to ensure that the Court’s process does not cause an injustice; and
(c) It was filed pursuant to an agreement that is void or voidable.
[8] I applied those principles in BZAGD v Minister for Immigration & Anor [2015] FCCA 3471. My decision, wherein I refused to set aside a notice of discontinuance, was considered on appeal in BZAGD v Minister for Immigration and Border Protection [2016] FCA 670. In that case, the Full Court, constituted by Rangiah J, said this:
16. The application for leave to appeal states “the decision is not in accordance with rules”. No such error can be discerned from the primary judge’s careful and thorough judgment. His Honour’s consideration of the circumstances in which a notice of discontinuance may be set aside was correct except perhaps in one respect. His Honour considered that the Federal Circuit Court had an implied power to set aside a notice of discontinuance in order to prevent injustice. To the extent that his Honour may be taken to be saying that the power may be exercised in the interests of justice, it is inconsistent with the judgment of the Full Court of the Federal Court in Chen v Monash University (2016) FCAFC 66 delivered after the judgment of the Federal Circuit Court.
[9] Rangiah J then goes on to deal with what was said by the Full Court in Chen, and suggested that the test that I had set out in BZAGD, to the extent that it suggested that the Court had power to set aside a notice of discontinuance in order to prevent injustice, was too widely stated. The Full Court’s decision in BZAGD was the subject of an application for special leave, which was refused: BZAGD v Minister for Immigration and Border Protection & Anor [2016] HCASL 226.
[10] The upshot of all that is that to succeed on this application the applicant must demonstrate that the notice of discontinuance was procured by fraud or is an abuse of process. Alternatively, it is necessary to ensure that the Court’s processes do not cause an injustice or, alternatively, it was filed pursuant to an agreement that is void or voidable.
[11] In MZZIO v Minister for Immigration & Anor [2014] FCCA 618, at [14] Judge Whelan stated the test slightly differently and posed the following questions to assist the resolution of an application such as the present:
(a) Did the applicant knowingly and voluntarily file the notice of discontinuance?
(b) Was the filing of the notice of discontinuance procured by fraud or duress?
(c) Was it filed pursuant to a void, or voidable, agreement?
(d) Did the filing of the notice of discontinuance otherwise involve an abusive process?
(e) Is the setting aside of the notice of discontinuance necessary to ensure that the Court’s process does not cause an injustice? and
(f) If the notice of discontinuance was set aside, does the application for review have no reasonable prospect of success?
[12] There can be no doubt that the determination to set aside a properly filed notice of discontinuance is a discretionary exercise, but it is an exercise of discretion which is not unfettered, as the authorities demonstrate.
Judge Jarrett concluded in Laramie & Caul that there was no evidence before him to demonstrate that the filing of the Notice of Discontinuance was procured by fraud or an abuse of process. Moreover, he concluded that the evidence did not indicate that it was necessary to set aside the Notice of Discontinuance in order to ensure that the Court’s processes do not cause an injustice.
The decision of his Honour Judge Jarrett seems to have been followed, even if not expressly referred to, in a recent decision of Judge Cameron in this Court in SZVCD & Ors v Minister for Immigration & Anor [2019] FCCA 3049 (21 October 2019). Interestingly, his Honour Judge Cameron expressly refers to section 15 of the Federal Circuit Court Act. The relevant paragraphs are at 15 - 16.
[15] There is no provision in either the Federal Circuit Court of Australia Act 1999 or the Federal Circuit Court Rules 2001 which provides expressly for the reinstatement of a proceeding following a discontinuance. However, in exceptional circumstances the Court has an implied power to take such a step. In Chen v Monash University (2016) 244 FCR 424, at pages 432-433 [40], [41] and [46] the Full Court of the Federal Court relevantly said this:
40. The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.
41. We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or protect the integrity of those processes.
…
46. While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice was filed as a result of fraud in which the appellant was not complicit.
[16] Section 15 of the Federal Circuit Court Act is an analogue of s.23 of the Federal Court of Australia Act 1976.
It is useful, and indeed informative, to consider the decision of the Full Court of the Federal Court of Australia in Chen v Monash University [2016] FCAFC 66 (12 May 2016, hereafter referred to as ‘Chen’).
Chen v Monash University
This decision is particularly useful because of its discussion of the underlying principles behind the Rules of the Court dealing with the finality of proceedings.
The decision concerned rule 36.73 of the Federal Court Rules 2011 (Cth) dealing with discontinuance of appeals. Sub-rule 1 provides that an appellant may, without the Court’s leave, discontinue an appeal by filing a notice of discontinuance in accordance with the prescribed form, at any time before the hearing of the appeal. In broad terms, sub-rule 1 is equivalent to Rules 13.01(1) and (2) of the Federal Circuit Court Rules 2001.
Sub-rule 2, however, provides that a notice of discontinuance “has the effect of an order of the Court dismissing the appellant’s appeal”. There is no equivalent to this in Federal Circuit Court Rule 13.01. Whereas the Federal Court Rules 2011 expressly provide that a notice of discontinuance has the effect of an order dismissing the appellant’s appeal, Federal Circuit Court Rule 13.01 implies that.
In the present case, even though the submission was not made that the decision in Chen can be, or should be, distinguished because of the different wording of the rules, the Court must nonetheless consider this. Moreover no submission was made to the effect that guidance to the interpretation and implementation of Federal Circuit Court Rule 13.01 should not be sought from cases dealing with the filing of notices of discontinuance in an appeal. Even if this latter submission had been made, the Court would not have accepted the same. There are important matters of principle that apply equally in both contexts.
The important matter of principle is the principle of finality of proceedings. The Full Court in Chen commences its discussion of this at paragraph 7 and 8 of its Judgment:-
[7] Rule 39.05 reflects a general principle that, with limited exceptions, an entered, or “perfected”, judgment or order is final.
[8] In Bailey v Marinoff (1971) 125 CLR 529 at 530–531; [1971] HCA 49 (Bailey), Barwick CJ (who generally agreed with the separate reasons of Menzies J and Walsh J, but added remarks of his own) said that:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court. I would add that, however hard the case might seem for the would be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility ...
On the one hand, the underlying principle is clear – once proceedings have been disposed of, that is finalised, the promotion of the due administration of the law, or the promotion of justice, is not necessarily advanced if proceedings can be readily reinstated. What emerges from the High Court’s decision in Bailey v Marinoff [1971] HCA 49 (hereafter referred to as ‘Bailey & Marinoff’), referred to in the above passage, is that this is particularly so if the finalisation of proceedings is brought about by one party’s own conduct.
The Court observes that the finality principle is not a foreign one in family law, and under the Family Law Act 1975. It is reflected in many provisions under the Family Law Act 1975, and many family law principles. For example, section 60CC(3)(l) prescribes that the Court must consider, in parenting proceedings, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. The principle, known as the rule in Rice & Asplund (1979) FLC 90-725 (hereafter referred to as ‘Rice & Asplund’), reflects a finality principle, albeit within the pragmatic paradigm of inevitable change in a child’s life. In financial proceedings, section 81 of the Family Law Act 1975 reflects a finality principle. Section 79A may likewise be said to reflect a finality principle by setting quite a high threshold before orders altering property interest may be set aside. These are but a few examples of how the finality principle is enshrined in the Family Law Act 1975, and in family law jurisprudence.
On the other hand, however, it may be said that what [7] and [8] of the Full Court’s decision in Chen is founded on is a notion that does not readily lend itself to discontinuance of parenting proceedings. Whereas, as the Full Court noted in [7], Federal Court Rule 39.05 reflects a general principle that an entered or perfected judgment or order is final, rule 13.01 Federal Circuit Court Rules 2001, as it applies to parenting proceedings, is quite different. For example, in the present case it could not be said that the proceedings are finalised, or that there is a judgment or order that has been “perfected”. This is because the Court is yet to deal with the Father’s Application for final parenting orders, albeit, as he contends, on an undefended basis. Thus, it could be argued, that there is no “order disposing of a proceeding” that “has been perfected by being drawn up as a record of the Court...” to pick up the words of the High Court in Bailey v Marinoff. It also should be noted in this regard that at an undefended hearing the Court must still make an order that is in the best interests of the children and, as will be observed below, even at an undefended hearing the Court is entitled to have regard to material filed by the Mother, as well as the orders that she proposes.
Thus, when the underlying principle in relation to finality of proceedings is more closely examined, it may well be the case that it was not intended to apply to a parenting proceeding which needs to continue, even on an undefended basis. It may well be, for example, that the difference between the two rules is in fact more significant than first meets the eye. In Chen, when the Full Court dismissed the Applicant’s application to reinstate her appeal which she had discontinued, that completed the proceedings. Other than costs, there was nothing else for the Full Court to adjudicate on. When Judge Cameron, in SZVCD v Minister for Immigration dismissed the Applicant’s application to reinstate proceedings after discontinuance, that was the end of the proceedings, and all that the Court was left to do was to adjudicate on costs. The present case is quite different in this regard – the Court will still need to make a best interests determination in relation to the children, and thus the proceedings do not come to an end on the filing of one parents’ Notice of Discontinuance.
Both the Mother and the Independent Children's Lawyer submitted, in effect, that the principle of finality of parenting proceedings was far more nebulous than in other areas of the law. This was reflected in some of the jurisprudence surrounding the so-called rule in Rice & Asplund. Another issue which is at least implicit in their submissions is the very different nature of decision making in parenting cases in undefended proceedings, perhaps compared to other jurisdictions where discontinuance might have the result of a proceeding being finalised without reference to the evidence filed by the discontinuing party. The approach adopted in undefended parenting cases is different. The Court routinely has regard to the material before it, irrespective of who filed it, or caused it to be brought before the Court, in order to make an assessment of what orders are in the best interests of the children. Thus, for example, even in undefended parenting proceedings there is no suggestion, for example, that the Court could not inform itself from other material before it, whether read in the moving party’s case or otherwise. There is an explicit power to do this in Division 12A of Part VII of the Family Law Act 1975: section 69ZX(1)(e). Even in undefended parenting applications, the Court could have regard to memoranda produced under section 11F or documents produced under section 69ZW of the Family Law Act 1975, and material filed by a parent or other person who has subsequently discontinued their application or response. This is consistent with the decision of the Full Court in Zane & Allan (2008) FLC 93-378 discussed in Zhao & Xie [2008] FamCAFC 187 at [93] to [96] and Vaile & Labrum & Ors [2019] FCCA 2867 at [48] to [56].
In short, there must be doubts about the applicability of the finality principle discussed in Chen in a parenting proceeding, which is so fundamentally different in nature from, for example, administrative law proceedings or, indeed, civil litigation generally.
Against this, however, must be the recognition that the finality principle has been applied by the High Court in a family law appellate context. This is discussed by the Full Court in Chen at paragraphs 15 to 19:-
[15] The finality principle as articulated in Bailey was referred to expressly by the plurality in DJL v The Central Authority (2000) 201 CLR 226; 170 ALR 659; 26 Fam LR 1; [2000] HCA 17 (DJL) at [38] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). The general principle was also applied in a criminal law context by the plurality in Burrell v R (2008) 238 CLR 218; 248 ALR 428; [2008] HCA 34 (Burrell) at [29] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ).
[16] In DJL, the plurality found that the Full Court of the Family Court of Australia did not have power to reopen final orders after their entry. In the course of their judgment, the plurality emphasised that the Family Court, established by the Family Law Act 1975 (Cth) (the Family Law Act) and vested with statutory jurisdiction and powers, was not a common law court as were the three common law courts at Westminster, and so was unable to draw upon “the well of undefined powers” that were available to those courts as part of their “inherent jurisdiction”: at [25]. Rather, the Family Court was a statutory court, being a federal court created under the Constitution, which exercises jurisdiction and powers conferred by statute either expressly or by implication. It also has such powers as are “incidental and necessary” to the exercise of the jurisdiction and powers conferred. Thus, it would be inaccurate to use the term “inherent jurisdiction” and the term should be avoided as an identification of the incidental and necessary power of a statutory court. Their Honours added, at [26], that the distinction between “inherent jurisdiction” or “inherent power” and jurisdiction or power derived by implication from statutory provisions conferring a particular jurisdiction is not always made explicit but is fundamental.
[17] The fact that the Family Court was, under the Family Law Act, “a superior court of record” made no difference to that view: at [29]–[31]. The plurality, at [39], said that in considering what is involved in the establishment of a statutory court as a superior court with appellate jurisdiction as well as original jurisdiction, as in the case of the Family Court, it was important to bear in mind that the position respecting the revision of orders of the superior courts of record at Westminster “can supply only a limited analogy”.
[18] At [45], the plurality concluded that the Family Law Act in its text and structure provided no express conferral of the power sought to be exercised, to reopen a judgment entered; there was no inherent power by reason of the description of it as a “superior court of record” in the Family Law Act; and no such power could be derived by necessary implication from the statutory structure.
[19] Kirby J in a separate judgment, at [106], considered, to the same effect as Gibbs J in Bailey, that the Family Court was possessed of an implied power “to repair accidental mistakes and oversights”, but that it was confined to “exceptional cases” where if the mistake were left unrepaired it would cause “serious injustice”. He said the applicant “bears a heavy burden to persuade a court that he or she did not occasion the mistake and has moved for relief with relevant expedition”.
It will thus be appreciated that the High Court above was dealing with a different question to the one presented in this case. In DJL v The Central Authority [2000] HCA 17 (hereafter referred to as ‘DJL’) the High Court was concerned with whether the Family Court in its appellate jurisdiction could re-open one of its own final orders after entry. The litigation in question was finalised. By contrast the litigation before this Court is not finalised for the reasons discussed above. The finality principle described in DJL, like Chen, has quite a different application in the present case.
Section 15 of the Federal Circuit Court of Australia Act 1999
The potential significance of this passage, in terms of its application to the present case, may be mitigated if section 15 of the Federal Circuit Court Act provides the power to set aside the Notice of Discontinuance which would mean that there are no issues of inherent jurisdictional powers.
It is interesting that the Full Court referred to the High Court’s decision in Burrell v R [2008] HCA 34 (cited in the above passage and hereafter referred to as ‘Burrell’) where the High Court determined that the Court of Criminal Appeal of the Supreme Court of New South Wales, had no power to reopen an appeal once judgment had been delivered and orders reflecting the judgment had been formally entered. Again, however, there was an emphasis on the significance of a judgment or order having been “perfected”. The absence of any parallel in the present context is perhaps significant. When a Notice of Discontinuance is filed, there is not necessarily at the time of filing, or even later, any judgment or order, let alone one that has been “perfected” except, perhaps, in the sense that the order is duly sealed. In this case, the filing of the Notice of Discontinuance did not, in fact, result in the Mother’s Application being formally dismissed. No application was made by the Respondent to that effect. The Court did not do so of its own motion. The Respondent Father indicated to the Court that he wished to file and serve an Amended Response, together with further evidence, in anticipation of an undefended hearing. Before the undefended hearing was held, however, the Mother had filed her Application to set aside the Notice of Discontinuance. Would it have made any difference if the Mother’s Application had been formally dismissed, following the filing of the Notice of Discontinuance, and that order had been perfected in the sense of having been taken out? As previously observed, rule 13.01 Federal Circuit Court Rules 2001, unlike Federal Court Rule 36.73, does not provide that the effect of a Notice of Discontinuance is to dismiss the action commenced by the discontinuing party. Putting those issues aside, it is important to note that the High Court in Burrell confirmed at [15] the principle of finality of litigation and that controversies once resolved are not to be reopened except in a few, narrowly defined circumstances, even in criminal law.
In Chen’s case, the Full Court of the Federal Court concluded that in the same way as the Family Court of Australia did not have a power, express or inherent, to reopen final orders after their entry, so too the Federal Court. The Full Court, thus, looked at other possible sources of power within its founding legislation. For present purposes, the focus is on the Full Court’s examination of its powers under section 23 of the Federal Court Act 1976 (Cth), which is in almost identical terms to section 15 of the Federal Circuit Court Act. Section 23 of the Federal Court Act states:-
Making of orders and issue of writs
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
Section 15 of the Federal Circuit Court Act states:-
Making of orders and issue of writs
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and
(b) issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate.
The Full Court in Chen observed that section 23 is about power, not jurisdiction. The section grants to the Court powers “in relation to matters in which it has jurisdiction”. The same conclusion applies to section 15 of the Federal Circuit Court Act. For present purposes, there is no issue about the Court’s jurisdiction. This Court clearly has jurisdiction under the Family Law Act 1975. The proceedings before it are proceedings brought under that Act.
The Full Court in Chen discussed section 23 of the Federal Court Act at paragraphs 32 - 35:-
[32] In Patrick Stevedores Operations No 2 Proprietary Ltd v Maritime Union of Australia (1998) 195 CLR 1; 153 ALR 643; 27 ACSR 535; [1998] HCA 30 at [176] (Patrick), the plurality (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) referred, with approval, to what Deane J had noted in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622; 71 ALR 457 at 462–3 (Jackson) of s 23 that:
Wide though that power is, it is subject to both jurisdictional and other limits. It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the ‘kinds’ of orders, whether final or interlocutory, which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction.
[33] The plurality further favourably referred to what Deane J said in Jackson at 623, that a power to prevent the abuse or frustration of a court’s process should be accepted “as an established part of the armoury of a court of law and equity” and that “the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by s 23”.
[34] In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; 54 IPR 161; [2001] HCA 63 at [94], Gummow and Hayne JJ, in the course of a discussion concerning the grant of “anti-suit injunctions”, said that the order in question in that case could be supported “as an exercise of the power of the court to protect the integrity of its processes once set in motion”. In making that statement, their Honours referred to CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391–2; 147 ALR 402 at 432–3 (Cigna), as well as to the joint judgments in Patrick at [35] and Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; 162 ALR 294; 45 IPR 1; [1999] HCA 18 at [41].
[35] In Cigna, at 391, the plurality (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) observed that the counterpart of the Court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. In making that statement their Honours primarily referred to Jackson at 619, 621 and 639.
The context of the Full Court’s examination of section 23 must not be forgotten. The question was whether the Full Court had a power to set aside an application to reinstate an appeal following the filing of a Notice of Discontinuance. At paragraphs 40 - 42 the Full Court states:-
[40] The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.
[41] We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes.
[42] It follows that we do not consider that the Court is possessed of an implied or express power simply to reinstate a discontinued appeal in “the interests of justice”.
The conclusion must surely be the same in relation to the Federal Circuit Court, even if it is not a superior Court. The power of this Court to prevent any abuse or frustration of or interference with its processes, is either an implied power that exists independently of section 15, but is amplified by section 15, or an implied power derived from section 15. Based on what the Full Court in Chen observed, section 15 of the Federal Circuit Court Act, like section 23 of the Federal Court Act 1976, may in an appropriate circumstances be the source of power to set aside a Notice of Discontinuance, in order to prevent an abuse of process, or to protect the integrity of Court’s processes.
This Court will recognise that the evidence led in the Applicant’s case does not amount to an abuse of process, or raise issues about the need to protect the integrity of the Court’s processes. Even so, it is not entirely clear to this Court, however, why section 15, which is in such wide terms, should in effect be read down in that fashion. It is not clear how that limitation is derived from what the plurality of the High Court in Patrick Stevedores Operations No 2 Proprietary Ltd v Maritime Union of Australia [1998] HCA 30 (hereafter referred to as ‘Patrick Stevedores’) described as the “...jurisdictional and other limits” of section 23 of the Federal Court Act 1976. Section 15 is a wide statutory grant of power. The fetters are clearly jurisdictional, but the “other limits” are by no means clear and it must be an open question as to whether it is limited to preventing the abuse or frustration of a Court’s processes. The metes and bounds boundaries of section 15 have not been definitively surveyed.
Moreover, the same applies to the circumstances which constitute an abuse of process. In this regard, the Full Court noted at paragraphs 46 to 47:-
[46] While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
[47] In those circumstances, we do not consider it is helpful to say that the Court has a general power to reinstate an appeal “in the interests of justice”, which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.
What is clear from the above passage is that the Full Court in Chen is accepting that section 23 Federal Court Act 1976 is limited in its scope to the situation of abuse of process or to protect the integrity of the Court’s processes.
In Chen, the Full Court of the Federal Court dismissed the Applicant’s application to reinstate the appeal. They pointed out that the discontinuance was a deliberate and informed decision on the part of the applicant (as it was in the present case). No abuse of the Court’s processes was identified. Whilst the Court had a power to prevent an abuse of the Court’s processes, this was not enlivened. They went on to observe that, in any event, even if the power to reinstate had been enlivened, the prospects of success were so low, that it would not be appropriate to exercise what is otherwise a discretionary power in the Applicant’s favour.
What Chen and the cases it refers to establishes is that there are clear limits to the outer boundaries of section 15, and the section does not extend the jurisdiction of this Court to do something which it otherwise cannot do. This Court’s implied powers cannot be employed to create and enforce new rights. It is not clear, however, whether the precise nature and scope of the internal powers granted by section 15 have been properly surveyed.
The section 69ZN Family Law Act 1975 argument
Section 69ZN of the Act states:
Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The Mother contended that these principles should inform the Court’s decision to set aside the Notice of Discontinuance. The Court does not accept this. The principles inform how proceedings are conducted but not the law that applies in proceedings. In the absence of a specific power to set aside the Notice, and the facts to underpin such power,s.69ZN does not assist the Applicant.
The facts contended to justify setting aside the Notice of Discontinuance
Even the Mother in the present application conceded that she did voluntarily and knowingly file the Notice of Discontinuance. She accepted that the filing was not procured by fraud or duress. It was not filed pursuant to a void or voidable agreement and there was no abuse of process. If the Court follows existing authority, therefore, the application must fail.
Following precedent
Even though this Court has some reservation about the applicability on the facts of this case of decisions of appellate courts and indeed even of a decision of this Court, it does not mean those decisions should not be followed. In Eames & Eames [2018] FamCAFC 204 (1 November 2018) the Full Court of the Family Court said at [25] – [29]:
[25] A judge is obliged to follow decisions on questions of law decided by a superior court. In Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Moffitt P said at 177:
The obligation of every court loyally to follow decisions of any court superior to it has been often stated. At times it may appear to a judge or to an appeal court that the reasoning or absence of it in a binding decision renders that decision unsatisfactory. However, the law concerning precedent, based as it is on the need for certainty in the law, absolutely binds him to follow the precedent. He is as much bound by the law of precedent and the law so pronounced as he is by any other law. The law provides its own rules to admit of flexibility. These rules, which are part of the binding law of precedent, permit departure from prior erroneous decisions, but only in prescribed circumstances. The law binding on all does not include any right of a court to depart from a decision of a superior court and hence one binding upon it upon some basis, such as that some matter is considered to have been overlooked by the superior court or for some other reason it appears to be wrong. It does not permit it to disregard a binding decision of an appellate court on some view based on the reasoning of judges in a decision of an ultimate appellate court which does not overrule the binding decision. An example of this is provided by the reasons of some members of the High Court in Stage Club Ltd v Millers Hotel Pty Ltd which certainly did not overrule McGee or even deal with the same question.
[26] It is clear that a court then is obliged to follow decisions of a court to which an appeal lies (Viro v The Queen (1978) 141 CLR 88 at 93).
[27] However, no appeal lay from a decision of a judge of the Federal Magistrates Court of Australia, or lies from a judge of the Federal Circuit Court of Australia, to a single judge of the Family Court of Australia sitting at first instance. Federal Circuit Court judges are therefore not bound to follow first instance Family Court decisions. This is consistent with a number of authorities that have held that an intermediate court of appeal is not bound by a decision of a single judge of the High Court (Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 at 654 and 664; Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 218; Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 223 – 224; see also Valentine v Eid (1992) 27 NSWLR 615 at 620).
[28] This does not mean that the decisions of the Family Court should not have been followed. Judicial comity required that those decisions be followed unless a judge was convinced that they were “plainly wrong”. In the context of discussing the principle of comity between intermediate courts of appeal, in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 the High Court said:
Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court — and all the more so a single judge — should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong. (Emphasis added)
[29] A similar principle applies between judges of first instance (La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204; Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [74] – [75]). In Hicks, French J explained the rationale as follows (at [76]):
The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction.
Conclusion
The Court does not accept the submission that the rules about Notices of Discontinuance of parenting proceedings are inconsistent with the statutory obligation on this Court under Part VII of the Family Law Act 1975. Even if the Notice of Discontinuance is not set aside, at an undefended hearing the Court will still need to make an order in the best interests of the children.
The Court believes that as a matter of judicial comity it should follow the decision of Judge Jarrett in Laramie & Caul. Whilst the Court has some reservations about the decision, it is not plainly wrong.
The Court is bound by the decision of the Full Court of the Federal Court in Chen v Monash University even thought this Court has some reservations about the applicability of the principles stated to the present circumstances.
The precise nature an scope of the powers granted by s.15 of the Federal Circuit Court Act are yet to be fully determined and it is not appropriate for this Court to survey this territory given the pronouncements by the Full Court of the Federal Court and Family Court.
The evidence led by the Applicant does not bring her case within the principles for setting aside the Notice of Discontinuance that she filed. Her application must be dismissed. The matter will proceed to an Undefended Hearing at which an order is made in the best interests of the children.
The Court might consider the appropriateness of a specific rule dealing with the circumstances in which a Notice of Discontinuance in parenting proceedings may be set aside.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 20 December 2019
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