Patera & Cameron

[2008] FamCAFC 33

FAMILY COURT OF AUSTRALIA

PATERA & CAMERON [2008] FamCAFC 33

FAMILY LAW – PROPERTY – application for orders between husband & wife –alleged beneficial interest in property by husband’s parents – property registered in their son’s name.

FAMILY LAW - APPEAL – Appeal against interlocutory orders of Family Court Judge – Orders to join parties as intervenors – no application to seek to intervene made by appellants or any other party in the proceedings – appellants not accorded procedural fairness or natural justice – insufficient reasons for judgment – appeal allowed – orders set aside.

FAMILY LAW - APPEAL – Appeal against cost orders made – exercise of discretionary power miscarried – appeal allowed – orders set aside.

FAMILY LAW - COSTS – Appellants granted a costs certificate pursuant to the Federal Proceedings (Costs) Act1981.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981

APPELLANTS: MRS PATERA

MR PATERA

FIRST RESPONDENT: MR E PATERA

SECOND RESPONDENT: MR CAMERON
SUBSTITUTED FOR
MS CAMERON (DEC’D)

FILE NUMBER: MLF 1116 of 2006

APPEAL NUMBER: SA 52 & 53 of 2007

ORDERS DELIVERED: 12 February 2008

REASONS FOR JUDGMENT DELIVERED: 27 March 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Warnick, May, Boland JJ

HEARING DATE: 12 February 2008

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 25 May 2007

LOWER COURT MNC: [2007] FamCA 596

REPRESENTATION

COUNSEL FOR THE APPELLANTS: Mr Puckey

SOLICITOR FOR THE APPELLANTS: Glezer Lanteri & Associates

SOLICITOR FOR THE RESPONDENT’S: No appearance for the husband or the wife (dec’d)

Orders

1. That Mr Patera and Mrs Patera be granted permission to appeal orders 3, 4, 5 and 6 of the orders made by the Honourable Justice Bennett on the 25^th day of May 2007.

2. That the appeal be allowed.

3. That orders 3, 4, 5 and 6 of the orders made by the Honourable Justice Bennett on the 25^th day of May 2007 be set aside.

4. That the Court grants to the appellants a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeals SA52 of 2007 and SA53 of 2007.

IT IS NOTED that publication of this judgment under the pseudonym Patera & Cameron is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 52 & SA53 of 2007
File Number: MLF 1116 of 2006

MR PATERA and MRS PATERA

Appellants

And

MR E PATERA

First Respondent

And

MR CAMERON
SUBSTITUTED FOR
MS CAMERON (DEC’D)
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. It was necessary for the appellants who are the parents of the husband to ask for leave to appeal from orders made by Bennett J on 25 May 2007 as the orders were interlocutory in nature. Mr and Mrs Patera sought to appeal on various grounds including an order that they file an application for leave to intervene in property proceedings was made despite no application by them or by any party to join them in the proceedings. Further, the appellants submitted that the cost orders made against them were in error and that procedural fairness was denied to them.

2. Orders were made in relation to the application for leave and the appeal on 12 February 2008. These are the reasons now provided for those orders.

Background

1. There were two proceedings in this matter, one relating to the children and the other, the division of property both listed to commence on 24 May 2007. The children’s matters were resolved on 24 May 2007 and the property matter was listed for the next day on 25 May 2007.

2. The applicant husband in the matter at first instance and the respondent wife (who is now deceased) were parties to the proceedings. The husband was unrepresented and asked, in effect, for an adjournment on the first day to raise the necessary funds to obtain legal representation.

3. The next day the appellants were present in court, and it seems from the transcript, were called forward by her Honour to respond to the statements made by their son relating to properties said by him to be beneficially owned by his parents.

4. Her Honour questioned the appellants about their contributions to the purchase and improvements of the various properties. Without seeking submissions the Judge then made orders granting the appellants leave to intervene in the proceedings, as well as requiring that they file an Application to Intervene and an Affidavit in support. These were orders made without the application of any party and upon no notice to the appellants who were not represented. The Judge then ordered that they pay the respondent wife’s costs “because you should have done this a long time ago” (T/s p17). The relevant orders are as follows:

   3.That I dispense with compliance with chapter 6 of the Family Law Rules 2004 insofar as it is necessary to permit the husband’s parents, [Mr & Mrs Patera] […] to intervene in these proceedings.

   4.That the interveners file and serve the following documents by not later than 4pm on 15 June 2007:-

   a.A Form 2 application in which they seek leave to intervene (which has already been granted);

   b.An affidavit setting out the facts relied upon [by] them in support of the application including the statement of their relationship to the parties and to the assets which are divisible between the parties and attach a schedule setting out the orders that they will seek at the final hearing of this matter and the basis upon which such orders are sought.

   5.That the interveners pay the wife’s costs thrown away this day fixed in the sum of $3500 such costs to be paid by 4pm on 15 June 2007 direct to the solicitors for the wife.

   6.That in the event that there is a failure to comply with these orders the Registrar convening the next court event consider the appropriateness of setting the matter down as an undefended matter.

5. The main submission is that the appellants did not seek to intervene or ask to be joined in the proceedings, nor did either of the original parties make an application to do so. Counsel for the wife asked that the matter proceed and not be adjourned for the purpose of the intervention of the parents. (T/s p18)

6. It is apparent that the husband’s case was that his parents had made substantial financial and other contributions toward acquisition, maintenance and improvement of various properties. No order was being sought by the parents nor did either party seek an order against them.

7. As reference to the transcript of the hearing demonstrated, and as counsel submitted, the appellants had no legal representation, were not given an opportunity to seek legal advice, were not given an opportunity to respond to the making of the orders, it seems do not speak English very well and were present in court without an interpreter.

8. The settled reasons for judgment provided on 18 June 2007 provide a different picture from the transcript including that the Judge thought the parents wished to become parties (para 7 & para 30). This in part seems to have been the basis for the costs order (para 29). Reference to the transcript shows that the Judge was mistaken.

Conclusions

1. It is quite clear for all the reasons mentioned by counsel that the appellants have been denied procedural fairness and that the orders for intervention and costs should not have been made.

Costs

1. The appellants sought a certificate under the Federal Proceedings (Costs) Act and in the circumstances it was granted.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date: 27 March 2008