R v The Queen
[2001] FamCA 1822
•12 November 2001
JFRYANMA
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT PARRAMATTA
Appeal No. EA 69 of 2001 File No. ZP 1173of 2000
IN THE MATTER OF:
MR R
Appellant/Husband
- and-
MS R
Respondent/Wife
REASONS FOR JUDGMENT
BEFORE: HEARD: JUDGMENT:
APPEARANCES:
JUSTICE IR COLEMAN
9th day of November 2001 12th day of November 2001
Mr Campton of Counsel, (instructed by Matthews Dooley & Gibson, Solicitors, Level 4, 85 Flnshcombe Road, Blacktown NSW 2148) appeared on behalf of the appellant husband.
Mr Sansom of Counsel, (instructed by Watts McCray, Solicitors, Level 4, Lachlan Tower, 17-21 Macquarie Street, Parramatta NSW 2151), appeared on behalf of the respondent wife.
NAME OF APPEAL: APPEAL NUMBER:
DATE OF APPEAL HEARING: DATE OF JUDGMENT: CORAM:
R &R
EA 69 of 2001
9 November 2001
12 November 2001 Coleman J
CATCHWORDS: Section 79A Family Law Act: Adequacy of learned Federal Magistrate's reasons for finding consent to setting aside previous order under s79: Conclusion not open to Federal Magistrate: Appeal allowed.
NOT REPORTABLE
This is an appeal against orders made by the learned Federal Magistrate on the 19th of July 2000 in proceedings between the parties to this appeal. The orders, the subject of challenge, appear at Appeal Book pages three and following. The substance of the orders complained of was that orders for settlement of property made on 29 April 1994 be set aside, that the respondent husband pay to the applicant wife by way of settlement of property the sum of $83,994.50 within one month of the courts order, whereupon the wife transfer the whole of her right, title and interest in the former matrimonial home of the parties at Suburb B, subject to the existing mortgage to D Bank, to the respondent husband. The parties were otherwise ordered to be beneficially entitled to retain all property real or personal in their possession.
The original Notice of Appeal, which is found at Appeal Books pages one and two, was, by consent, informally amended by counsel for the appellant, the husband in the proceedings, to rely upon grounds particularised in the summary of argument and list of authorities filed on behalf of the appellant on 5 November 2001.
The Notice of Appeal sought that the orders of the learned Federal Magistrate be set aside, that the respondent wife's application filed 5 September 2000 be dismissed and that the respondent wife pay the appellant's costs of and incidental to the appeal. The submissions made on behalf of the appellant on the hearing of the appeal, sought orders in the same terms as contained in the original Notice of Appeal but it was conceded on behalf of the appellant that if the appeal succeeded on grounds challenging adequacy of reasons it may well be that, although the orders made by the learned Federal Magistrate would be set aside, dismissal of the application of 5 September 2000 need not automatically result.
By way of background to the dispute I refer to the following matters which appear in the
learned Federal Magistrate's judgment and which are not the subject of challenge in this appeal. The wife, who was the applicant in the lower court, the respondent in this court, was born in 1947. She is 54 years of age. The husband was born in 1949. He is 52 years of age.
The parties commenced to cohabit in 1985 in accommodation owned by the appellant.
The appellant purchased a house in Suburb B, the property the subject of the orders of the learned Federal Magistrate, using funds he had obtained from an earlier property settlement, borrowing the balance of the purchase price.
There are no findings in relation to the acquisition of the original property at Suburb B. The parties, in 1987 at latest, having, it is alleged by the appellant, separated in June 1986, commenced to cohabit in the Suburb B property. The parties married in 1989. They separated under the one roof on 1 November 1993. Subsequent to that date, an application for property settlement was made and consent orders were made on 29 April 1994 pursuant to which the wife became entitled to the sum of $40,000.
That sum was paid one month later whereupon the wife vacated the former matrimonial home and began to reside with a relative. In early 1995, the parties holidayed together. In 1996, the appellant travelled to the United Kingdom. Whilst he was away, the respondent moved back into the former matrimonial home, the learned Federal Magistrate found that, whatever the initial basis of that re-occupation, it became consensual.
The parties resumed a sexual relationship, whatever its precise designation, from about 1996, that being the time when the appellant returned to Australia from the United Kingdom. The parties finally separated in May 2000. Four months later, the respondent commenced the proceedings which gave rise to the orders of July 2001 which in turn gave rise to this appeal.
It is appropriate to consider the learned Federal Magistrate's reasons for judgment. The proceedings before the learned Federal Magistrate were brought by the present respondent pursuant to the provisions of s79A(lA). There was some confusion initially in relation to the section upon which the respondents claim was based. That issue was resolved by the learned Federal Magistrate, and there has been no challenge to that determination, nor with respect could there properly have been given the circumstances as outlined in the learned Federal Magistrate's reasons for judgment.
There was on the second day of the trial no doubt that the claim by the respondent was in reliance upon s79A(1A) which relevantly for present purposes provided as follows:
A court may, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The learned Federal Magistrate carefully reviewed the evidence before him and there is no real challenge to his recording of the evidence. The focus of the appeal renders it appropriate, for reasons which will emerge, to concentrate attention on a limited number of particular paragraphs in the learned Federal Magistrate's judgment. The first, albeit most peripheral, of these paragraphs is paragraph 16, found at Appeal Book page 10, which deposes to pre-1996 resumption of cohabitation events in part and post-1996 events in part, it being not entirely clear into which category the matters there traversed fell or whether, as is possible, they fell into both categories.
At paragraph 19 however, the learned Federal Magistrate commenced to record the evidence which, at least for certain of the Grounds of Appeal, is most directly relevant. In paragraph 19, the learned Federal Magistrate referred to the fate of the $40,000 received by the respondent pursuant to the 1994 orders. It becomes clear from passages in the evidence, and there is ultimately no dispute as between counsel about this, that the home upkeep referred to in paragraph 19 is the home of the niece, not the former matrimonial home.
At paragraph 20, there is a reference to the wife having obtained a loan of $4100 from the husband. There is reference in paragraph 21 to the husbands' version of the circumstances surrounding the resumption of cohabitation. In paragraph 22, the learned Federal Magistrate referred to evidence of financial matters and whilst he there set out, as he did in paragraph 23 and following, the rival versions of events, the learned Federal Magistrate does not appear to have, in general terms, made findings in relation to contributions or other financial matters where those were in dispute.
Without being critical, with great respect to the learned Federal Magistrate, a reading of these passages of evidence, at least to this Tribunal, does not give a clear picture of what actually happened in the reconstituted relationship of the present parties. In paragraph 27, the learned Federal Magistrate referred to there the appellant not being able to be heard to say that there was "no consensual resumption of cohabitation".
With respect, I do not know that that takes one very far. The short answer would have been for there to have been no resumption of cohabitation if either of the parties had not been agreeable to that occurring.
The learned Federal Magistrate then proceeded to discuss the principles to be applied and, with respect, correctly did so particularly in his statement in the following terms:
In cases of this nature, conclusions about the intention which should be attributed to the parties will depend upon the particular circumstances of each case. There is no doubt that the parties can expressly or by their conduct consent to the discharge of prior orders so as to enable the court to make a fresh property order.
His Honour was undoubtedly correct in his use of the term "attributed", there having been, it is common ground, no discussion between the parties in this case as to what would, or would not, happen with their previous property settlement orders or the fruits or obligations received or flowing from them. That is neither significant or extraordinary. It simply did not happen and as such the learned Federal Magistrate did not have any actual evidence of the intentions of the parties.
He thus had to imply from other evidence the presence or absence of intention on the part of the parties to set aside the order. The authorities, I think, make reasonably clear, and nothing inconsistent with this was suggested during the appeal, that the intention to consent to the orders being varied or set aside does not have a particular time frame and is not confined in terms of time.
It seems clear that if a court is satisfied that at some stage, presumably in the present circumstances prior to the 2000 separation of the parties, the parties formed the requisite intention, then prima facie the provisions of the section could be attracted. The section is discretionary and as the learned Federal Magistrate made clear, the particular circumstances of each case will almost certainly determine the outcome.
Under the heading "Conclusion", in the two pivotal passages of the judgment, the learned Federal Magistrate concluded that the parties resumed their marital relationship from 1996, the date the appellant returned from - should read "from the United Kingdom", reads "to the United Kingdom". It is a typographical error. Nobody suggests otherwise. He referred to the respondent having moved back into the former matrimonial home in the absence of the appellant, albeit with his knowledge.
There is discussion then of the circumstances surrounding the resumption of residence in the matrimonial home on the part of the respondent and to their having recommenced a sexual relationship. What is there stated is not the subject of challenge. At paragraph 32, his Honour said:
The resumption of the marital relationship is not just for a few weeks but for over three years, can only been seen as a consent by the parties to the earlier property orders being discharged. I am satisfied that the orders made by consent on 29 April 1994 should be discharged.
His Honour proceeded then to discharge the orders and, having considered the principles applicable in that regard, the assets and liabilities of the parties, their contributions and s75(2) factors, concluded that further or fresh orders should be made pursuant to s79 which he proceeded to do in the terms earlier indicated.
For reasons which will emerge fairly shortly, it is I think unnecessary for present purposes to examine the reasoning process in relation to the order under s79 which the learned Federal Magistrate made having set aside the 1994 orders. It is trite to observe that if the appeal against the s79A order succeeds then the s79 order itself cannot possibly survive.
In his Amended Grounds of Appeal, counsel for the appellant asserted ground two:
That the learned Federal Magistrate erred in failing to identify and apply the correct legal principles applicable pursuant to s79A(JA).
Whilst I do not accept that the learned Federal Magistrate failed to identify the correct legal principles, the submission in relation to their application is in a somewhat different category. As has been indicated, it is in paragraph 31, and more specifically paragraph 32, that the learned Federal Magistrate's reasoning process in relation to the application of the principles is to be found.
The learned Federal Magistrate's exposition of the principles in paragraphs 28 to 30 is accurate, succinct and, if I may say so, very aptly expressed. The matter upon which the appellant relies is in essence twofold. The first limb of that argument is contained in ground one, which alleges that the learned Federal Magistrate failed to provide adequate and/or sufficient reasons for his decision pursuant to s70A(lA).
Paragraph 32 is four lines long. That in itself is not necessarily a criticism of the reasons there advanced but, objectively, the only reason advanced in support of the conclusion that the parties intended to consent to the setting aside of their previous orders is the fact that the marital relationship was resumed "not just for a few weeks but for over three years".
With great respect to the learned Federal Magistrate there were other views which could have been taken of the evidence of resumption of cohabitation for over three years. The conclusion that the resumption for over three years could "only" be seen as a consent by the parties to the earlier property orders being discharged was, with respect, not open to him.
As the learned Federal Magistrate identified, particularly in paragraph 29 of his reasons for
judgment, the very issue was whether in all the circumstances, a powerful one of which was the resumption of a relationship for over three years, it was reasonable to infer that the parties intended to consent to have the orders discharged.
The position is accordingly that by relying upon one matter, and that matter only, when that matter was not capable of having the effect which the learned Federal Magistrate concluded it did, the reasoning process is flawed. With great respect, his Honour did not indicate the significance of the financial dealings which he had briefly referred to in paragraphs 19 to 25 inclusive of his reasons for judgment.
The adequacy of reasons argument I find compelling, although one is not limited to paragraph 32 in endeavouring to glean or, to use the words appearing in the authorities, to discern the process of reasoning whereby the result was reached. Reference to other parts of the judgment, and there is no suggestion that there were any parts that were relevant in this regard other than possibly 16 and at most 19 to 27, reveals matters which assist in discerning the process of reasoning.
For argument sake there could have been financial transactions which the learned Federal Magistrate found to have been consistent with either an intention to disregard, to use a lay term, the previous settlement of property or to act in accordance with that agreement or those orders. With respect, the discussion in the reasons in this case gives no clue as to whether, on balance, those matters were consistent, or seen as ,consistent with one construction or the other.
I refer to these matters lest it be thought that the court is taking a narrow and unduly strict construction of the reasons. The fact that under the two paragraphs which fall within the subheading "Conclusion", one does not find the totality of the reasoning process does not of itself mean that an appeal based on an attack on the adequacy of reasons for judgment succeeds.
Very often, one can discern from other parts of the judgment the process of reasoning whereby a conclusion was reached, being a conclusion within the range of those reasonably open on the evidence. To the extent that the complaint in ground two attacks the application of correct legal principles, similar observations apply. In paragraph 32, the only matter to which his Honour referred was the resumption of cohabitation.
Without being flippant about it, the reasoning appearing in paragraph 32 is, on the authorities to which the learned Federal Magistrate himself so accurately referred in paragraphs 28 to 30, clearly wrong. As was discussed during the course of debate with counsel, there could well be a case where the resumption of cohabitation may have been for a matter of weeks or days but the facts and circumstances surrounding that resumption were such as to render it abundantly clear that the parties intended to consent to old settlements of property being set aside or orders discharged.
Conversely, it is quite conceivable that parties could resume cohabitation for decades but conduct their finances in an entirely separate way, consistent with the terms and conditions of a previous settlement of property. With respect, the test is not how long parties resume cohabitation but, clearly, that is a fact or circumstance. The absence of any consideration or conclusion in relation to financial matters, as indicative of the intention required by the section, being implied or attributed is, in my view, a fatal flaw in the reasoning.
Regrettably, therefore, the appeal must succeed. To the extent that the reasoning process can be discerned, the reasons are inadequate to justify the conclusion that the orders of 29 April 1994 should be discharged. A number of other factors in the circumstances of this case needed to be considered before such a conclusion could be reached. The reasons did not involve so doing.
If, contrary to the view I take of Ground one, the reasons themselves were adequate, then, with respect, the correct legal principles were not applied in that on any reading of the reasons for judgment one fact or circumstance, and one alone, was erroneously regarded as sufficient and indeed the learned Federal Magistrate took the view that the resumption of cohabitation for the period of over three years could "only'' be seen as a consent. With respect, to the extent that findings appear in the reasons in relation to the evidence, that finding was not open to the learned Federal Magistrate.
What then follows? Counsel for the appellant, during the hearing of the appeal, adopted the quite realistic stance of not conceding that there would be difficulties dismissing the application if the appeal succeeded on either Grounds one or two, but with his customary candour, but being unable to put forward compelling submissions in opposition to that proposition.
For this court to re-exercise the discretion in relation to the s79A question, the threshold question there would need to be more findings of fact than are available. On the evidence, or on the findings, as presented I think the most one could say is that the requirements section may or may not have been met. One most certainly cannot, in my view, say this application must fail and that on the evidence there would be no point in remitting or re-exercising because the respondent would simply fail if that were to happen.
Regrettably, the consequence of allowing the appeal is that this court is not in a position to re-exercise the discretion. There are not the findings of fact to enable it to do so. As a consequence, there will necessarily be a re-hearing. The issue of where the re-hearing ought take place was raised by the court with counsel, not because the court at that time had concluded that this would be the outcome but rather because, as a matter of natural justice and procedural fairness, the parties were entitled to be heard as to whether they preferred to have the matter remitted to the lower court or for this court to re-exercise the discretion.
Both counsel asked that the matter remain in this court. I think it is realistic to say that one party indicated a desire to adduce further evidence and that the other party quite properly reserved his position to see what further evidence was adduced. It would, I think, be fairly apparent from these reasons for judgment that the re-exercise of discretion would be difficult without there being further evidence and cross-examination in relation to a number of matters which appear to have not received critical scrutiny in the previous proceedings. That is not said cynically, but simply reflects the reality that with hindsight probably every case that has ever been run would be run a little differently.
The Orders of the Court will thus be:
1.That the appeal is allowed.
2.That the orders of the learned Federal Magistrate of 19 July 2001 are set aside.
3.That the matter be re-listed on a date to be arranged with the court for re-exercise of the discretion.
4.That each party file and serve all further or additional evidence intended to be relied upon by that party within 42 days of this date or such further period as the parties may in writing agree.
It remains to deal with the issues of costs. Each party sought a certificate under the Costs Federal Proceedings Legislation in the event of the appeal being allowed. The appeal has been allowed. It has been allowed on a point of law. Each of Grounds one and two involving errors, being grounds which have succeeded and such success necessarily involved a finding that there had been an error of law by the lower court.
There can be no question of an order for costs against the respondent to the appeal. The error was that of the lower court. That being so the appellant is entitled to a costs certificate pursuant to s9 of the Act. This is a Federal appeal. It has succeeded on a question of law. In accordance with s117 of the Family Law Act, each party to the appeal ought bear his or her own costs. It is in the circumstances of this appeal appropriate to grant the appellant a costs certificate stating that, in the opinion of the court, it would be appropriate for the Attorney General to authorise a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
So far as the respondent is concerned, the respondent relies upon the provisions of s6 of the Act. This is a Federal appeal. It succeeded on a question of law. The court considers it appropriate to issue a certificate under s6 to the respondent stating that in the opinion of the court it would be appropriate for the Attorney General to authorise a payment under this Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
I certify that this and the preceding 11 pages
are a true copy of the Reasons for judgment herein of
IR Coleman .J.,Associate:
Date:
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