PERRIN & PERRIN - [2018] FamCAFC 30

FAMILY COURT OF AUSTRALIA

PERRIN & PERRIN

[2018] FamCAFC 30

FAMILY LAW – APPEAL – Application to vacate hearing of an appeal – Orders appealed contained a finding (not an order) concerning the percentage division of the assets and gave liberty to the parties to provide a minute reflecting the finding – Appeal listed for hearing in the February 2018 sittings in Sydney – Parties’ informal request for an adjournment of the appeal denied by the Appeals Registry – Failure of appellant to comply with procedural directions – Counsel for the respondent now unavailable for the appeal hearing – Final orders still not made by primary judge – Na & Tiu [2017] FamCAFC 264 considered – Hearing vacated.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Na & Tiu [2017] FamCAFC 264

APPELLANT:

Ms Perrin

RESPONDENT:

Mr Perrin

FILE NUMBER:

NCC

556

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

14 February 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

14 February 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2017

LOWER COURT MNC:

[2017] FCCA 1606

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Baston (via telephone)

SOLICITOR FOR THE APPELLANT:

Mitchell Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Collett (via telephone)

SOLICITOR FOR THE RESPONDENT:

Collett Lawyers

Orders

The hearing in the Sydney Registry on 22 February 2018 be vacated.
The Eastern Appeals Registry is requested to relist the matter in the next appropriate sittings of the Full Court in Sydney.
The time in which the respondent has to file and serve his summary of argument be extended to 7 March 2018.
Costs be reserved to the Full Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perrin & Perrin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: EA 65 of 2017
File Number: NCC 556 of 2015

Ms Perrin

Appellant

And

Mr Perrin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter comes before me for directions in relation to the appeal currently listed for hearing before the Full Court in Sydney next Thursday.
The appeal arises out of proceedings in the Federal Circuit Court before Judge Myers, who heard the matter over five days in June and October 2016 and delivered his reasons for decision on 18 May 2017.
In his reasons, Judge Myers foreshadowed giving the parties liberty to provide a minute reflecting his determination in relation to division of property, including a superannuation entitlement of significant value. Paragraph 1 of the orders his Honour made on 18 May 2017 set out, perhaps somewhat unusually, a finding, rather than an order, concerning the percentage division of the assets.
The orders went on to provide that the parties had liberty to file a minute reflecting the adjustment of property in the terms of paragraph 1 of the orders, but should the parties fail to submit a minute within 14 days, the court thereafter would relist the matter and itself make orders dividing the assets without further recourse to the parties.
The wife was aggrieved by the decision foreshadowed and, on 14 June 2017, filed a Notice of Appeal. The Notice contained three grounds which essentially attacked the outcomes that would arise from his Honour’s findings. There did not appear, at least on the face of that document, any concern about what might be the precise form of the final orders.
Since the filing of the Notice, the Court has been informed that the parties were close to agreement in relation to the form of orders. Hence, it might have seemed, at some point at least, that the real controversy related to the percentage, rather than the way in which the orders might be formulated. Be that as it may, the parties failed to provide to his Honour a minute setting out their proposals in relation to the division and the appeal has proceeded.
The matter found its way back before his Honour, it seems by the court’s own motion, some months after the delivery of the reasons. On 14 August 2017, at which time the solicitors for the parties appeared by telephone, leave was granted to the wife to make an oral application to stay the operation of the orders of 18 May 2017. By consent the orders were then stayed on certain conditions relating to the ultimate filing of a minute of consent orders.
With the greatest of respect to his Honour and anyone who encouraged his Honour in the course that he took, this was a most unfortunate and unusual turn of events. Perhaps the more appropriate course would have been to see the proceedings through to a conclusion in order to avoid the very problem that has now arisen. Regardless, the matter found its way to the Appeals Registry and came before a registrar in Sydney on 23 August 2017.
I am informed by the husbands’ solicitor this morning that, by the time of the hearing before the registrar, the solicitors representing the husband had drawn attention to the difficulty for the appeal arising out of the absence of final orders, but it appears these matters were not of such concern to the wife, who indicated that there would be a means of resolving the difficulty.
I am also told this morning that the registrar did not see a difficulty either. No doubt, from what I have been told, that would be as a result of the registrar having been informed that there was a means by which the parties could resolve the difficulty. However as I have suggested today, there could have been another way in which the matter could have been approached because there were at least some orders against which an appeal could be mounted and used as a vehicle for the arguments foreshadowed in the Notice of Appeal.
Be that as it may, the registrar proceeded to make the standard directions in relation to the preparation of the matter for hearing. These directions included that the wife file and serve a summary of argument and a list of authorities on or before 17 November 2017. The husband was then given 28 days in which to file a summary of argument in response, which was due on 15 December 2017.
The wife did not file the summary of argument and I do not propose to attempt to trace all that occurred between the parties in the intervening period; the upshot was that the Appeals Registry, in accordance with the usual practice, proceeded to list the matter for hearing in the February 2018 sittings of the Full Court and notice was given to the parties. The parties then sought (and it seems they have been of the same view on this), to put the matter over to a later date more convenient to them to allow further orders to be made by Judge Myers and for an orderly filing of the various submissions required.
Perhaps to their surprise, they found that the Appeals Registry was not compliant with their request since in these matters, in accordance with now well-established authority, including Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the Registry takes into account not just the convenience of the parties to the litigation before the Court at the time, but also the interests of other parties who are waiting for their matter to proceed. In this particular case, it was not practicable for the Registry to find another matter to replace this and, hence, the Registry insisted that the parties proceed to prepare the matter in an orderly fashion so that the time and resources of the Full Court would not be wasted next Thursday.
Cutting this rather long story short, the wife then, to what I am told was the surprise of the husband, attempted to comply with the orders made on 23 August 2017 and filed a summary of argument on 7 February 2018, that is, seven days ago. I am also told that counsel for the husband, having not anticipated the matter proceeding due to the absence of the wife’s summary of argument, is now not available to appear next week. That in itself is not an argument that would necessarily have found great favour with me, given that as I made clear in Na & Tiu [2017] FamCAFC 264, the unavailability of counsel of choice is not a legitimate basis to adjourn proceedings. However, this case has some unusual aspects to it.
The husband anticipated, as he was entitled to, that he would have 28 days in which to respond to the wife’s summary of argument and, of course, that is now not possible. Added to the factual complexity of these matters is further information that I have been given this morning and that is that, belatedly, the matter has been put back before Judge Myers and by the diligence of the solicitor for the husband it has been ascertained that the matter has been listed before his Honour for some consideration tomorrow.
The parties are hoping but, of course, cannot be sure, that his Honour will have time to consider the matter and will also be able to provide a decision on what seem to be some points of difference between them in relation to the orders to give effect to the judgment, which his Honour delivered so long ago. I am told, although I am not altogether sure how this has impacted on the matter, given that no earlier attempt was made to list the matter before his Honour, that there has been an added complication because the government has appointed Judge Myers, who is still a serving judge, to act in some capacity outside of the court system, which has taken his Honour away from his ordinary duties.
Given that there is arguably some factual complexity in this case (in that a significant proportion of the parties’ wealth is held in an unusual form), there may be concerns in relation to the precise orders that his Honour makes and it is theoretically possible that the husband too may be aggrieved by the orders ultimately made and may seek to challenge them.
All of these matters, when considered together, point to the fact that the Court is now presented with a fait accompli that this matter cannot, particularly with justice to the husband, be prepared in sufficient time to be ready for a hearing before the Full Court that has been assembled next Thursday. I therefore, reluctantly, have no option but to vacate the hearing.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Thackray J delivered on 14 February 2018.

Associate:

Date: 4 April 2018