FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Rader & Haines (No 2) [2023] FedCFamC1A 115
Appeal from: Haines & Rader (No 5) [2023] FedCFamC1F 132 Appeal number(s): NAA 73 of 2023 File number(s): SYC 1641 of 2019 Judgment of: ALDRIDGE, JARRETT & STRUM JJ Date of judgment: 17 July 2023 Catchwords: FAMILY LAW – APPEAL – Where appeal was doomed to fail – In circumstances where appellant did not appear at final property hearing, did not file written submissions pursuant to orders following that hearing and did not seek to re-open case – Where appellant filed an application pursuant to s 79A of the Family Law Act 1975 (Cth), which was dismissed – Where appellant appealed dismissal of his s 79A application – Where appellant asserts respondent supressed evidence (including failed to disclose relevant evidence) by not tendering documents proposed to be tendered by him at final hearing – Where onus was not on respondent to tender appellant’s evidence – Where appellant asserts respondent failed to disclose to Court employment obtained after close of trial and before delivery of judgment, notwithstanding that appellant was aware thereof and made no inquiries of respondent or application to re-open final property hearing – Where no suppression of evidence (or failure to disclose relevant information) as alleged by appellant – Where no error at first instance – Appeal dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 62C
Family Law Act 1975 (Cth) s 75(2), 79, 79A
Family Law Amendment Act 2000 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.15(3)(e), 10.13, 13.23(2)(a)
Cases cited: Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13
Bigg & Suzi (1998) FLC 92-799; [1998] FamCA 14
Ebner & Pappas [2014] FLC 93-619; [2014] FamCAFC 229
In the Marriage of Kokl (1981) FLC 91-078; [1981] FamCA 60
Krebs & Krebs (1976) FLC 90-117; [1976] FamCA 88
Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53
Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881
Public Trustee v Gilbert (1991) FLC 92-211; [1991] FamCA 10
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Taylor & Taylor (1977) FLC 90-226; [1977] FamCA 31
Waterman & Waterman (2017) FLC 93-762; [2017] FamCAFC 23
Number of paragraphs: 134 Date of hearing: 29 June 2023 Place: Sydney Counsel for the Appellant: Mr Howe Solicitor for the Appellant: Swiftly Legal Counsel for the Respondent: Ms Messner Solicitor for the Respondent: Dettmann Phair ORDERS
NAA 73 of 2023
SYC 1641 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RADER
Appellant
AND: MS HAINES
Respondent
order made by:
ALDRIDGE, JARRETT & STRUM JJ
DATE OF ORDER:
17 July 2023
THE COURT ORDERED ON 29 JUNE 2023 THAT:
1.The appeal is dismissed.
2.Costs of the appeal are reserved.
THE COURT FURTHER ORDERS THAT:
1.The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $17,151.23.
Note:…
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- AGLC
- Rader & Haines (No 2) [2023] FedCFamC1A 115
- Case
- [2023] FedCFamC1A 115
- Decision Date
CaseChat Overview and Summary
In the case of Rader & Haines (No 2), the appellant sought to appeal the dismissal of an application under section 79A of the Family Law Act 1975 (Cth). The primary dispute between the parties centred on the final property orders made by the court following their separation and divorce. The Family Court of Australia was tasked with deciding the legal issues raised by the appellant's application. The key legal issues were whether the court had the authority to dismiss the appellant's application under section 79A and whether the appellant's failure to attend the property trial and provide cogent evidence of his alleged illness warranted the dismissal of his application.
The court found that the primary judge had correctly dismissed the appellant's application. The appellant's failure to appear at the property trial, despite having been granted an adjournment request, and his inability to provide sufficient evidence of his alleged illness, were considered significant factors in the dismissal. The court held that the primary judge was entitled to draw adverse inferences from the appellant's conduct and that this was a valid reason for dismissing the application. Furthermore, the court noted that the appellant had not raised the matters he sought to rely on in his section 79A application in his previous application, which was also dismissed. The court concluded that the primary judge's decision was well-reasoned and that the appeal should be dismissed.
In light of the above, the primary judge's decision to dismiss the appellant's application was upheld, and the appeal was dismissed. The final orders made by the primary judge, including the enforcement orders, remained in place.
The court found that the primary judge had correctly dismissed the appellant's application. The appellant's failure to appear at the property trial, despite having been granted an adjournment request, and his inability to provide sufficient evidence of his alleged illness, were considered significant factors in the dismissal. The court held that the primary judge was entitled to draw adverse inferences from the appellant's conduct and that this was a valid reason for dismissing the application. Furthermore, the court noted that the appellant had not raised the matters he sought to rely on in his section 79A application in his previous application, which was also dismissed. The court concluded that the primary judge's decision was well-reasoned and that the appeal should be dismissed.
In light of the above, the primary judge's decision to dismiss the appellant's application was upheld, and the appeal was dismissed. The final orders made by the primary judge, including the enforcement orders, remained in place.
Orders
Orders of the court
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Background
Background to the litigation
These are our reasons.BACKGROUND Some of the background to this appeal is not readily apparent from the reasons for judgment the subject of this appeal or otherwise from the appeal book, but is contained in the respondent’s Summary of Argument, with which the appellant did not take issue. The parties commenced cohabitation in 2003, married in February 2009 and separated in August 2017. Proceedings were commenced in 2019 and a divorce order was made in March 2020. On 21 December 2022, the primary judge made final orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“final property orders” and “the Act” respectively). The appellant had failed to appear at trial (“property trial”), which was listed to commence and commenced on 6 September 2022, by himself or by a lawyer, having discharged his counsel and withdrawn his instructions from his solicitor on the record. He had not made any application (other than a “request” by email) to adjourn the proceedings, nor even filed a Notice of Address for Service. Although he alleged that he was sick with COVID-19, he did not provide any cogent evidence to support this assertion, even though he was apparently requested to do so on a number of occasions. In the circumstances, the primary judge ordered that, insofar as the appellant moved the Court, by email, to adjourn the trial, such request be dismissed. The trial proceeded on 6 September 2022, undefended by the appellant, and concluded that day. At the conclusion of the trial, the primary judge ordered, in summary, that the parties be provided with the transcript of the hearing that day and the appellant be provided with an opportunity to make written submissions within 14 days thereafter, failing which her Honour would proceed to judgment. The appellant was duly sent a copy of the transcript but did not avail himself of the benefit of those orders. He did not file any submissions, nor an application for an extension of time. Further, he did not make any application to re-open the proceedings prior to the delivery of judgment on 21 December 2022, nor did he appeal the orders made that day. He did, however, bring an Application in a Proceeding on 9 December 2022, seeking inter alia to set aside the orders made prior to the commencement and at the conclusion of the property trial, pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), and that “the matter be set down for final hearing”. It appears that the matters now relied upon by the appellant in support of his subsequent application pursuant to s 79A of the Act (“s 79A application”), the dismissal of which is the subject of this appeal, were not raised in that previous application. That application was dismissed on 20 December 2022 and the primary judge proceeded to make the final property orders and deliver reasons therefor the following day. On 25 January 2023, the respondent filed an Enforcement Application in respect of the final property orders. Directions were made for the appellant to file a Response to that Application by no later than 10 February 2023. He failed to file a Response within the time ordered, only doing so on 13 February 2023 which, in any event, relevantly did not seek the dismissal thereof. He also filed his s 79A application, albeit by Application in a Proceeding, that day, which also sought that the final property orders be set aside pursuant to r 10.13 of the Rules. The parties’ competing applications were listed for hearing and heard on 3 March 2023. On 7 March 2023, the primary judge dismissed the appellant’s application and her Honour proceeded to make enforcement orders, as sought by the respondent. He now appeals against the dismissal of his s 79A application.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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