Sarber & Tacoma
[2021] FamCAFC 24
•24 February 2021
FAMILY COURT OF AUSTRALIA
Sarber & Tacoma [2021] FamCAFC 24
Appeal from: Sarber & Tacoma [2020] FCCA 2310 Appeal number(s):
SOA 75 of 2020
File number(s):
MLC 1888 of 2019
Judgment of:
STRICKLAND, RYAN & KENT JJ
Date of judgment:
24 February 2021
Date of order:
17 February 2021
Catchwords:
FAMILY LAW – APPEAL – CONSENT ORDERS – Error of law – Where the respondent’s solicitor sought a consent order unilaterally and in non-compliance with r 13.04 of the Federal Circuit Court Rules 2001 (Cth) – Whether, as at the time the substantive orders were made, both parties were consenting to their making – Where neither the appellant, nor any solicitor on his behalf, was on notice that the application for the order was to be made – Where it remained necessary for the Court to be satisfied of the existence of jurisdiction before orders were made in purported exercise of it – Where the respondent conceded the appeal – Appeal allowed – Costs certificate granted to the appellant.
Legislation:
Family Law Act 1975 (Cth) ss 79, 90SN, 90SM
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Federal Circuit Court Rules 2001 (Cth) rr 13.04, 13.05
Cases cited:
Clifton and Stuart (1991) FLC 92-194; [1990] FamCA 154
Gebert and Gebert (1990) FLC 92-137; [1990] FamCA 105
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442; [1924] HCA 36
Holland and Holland (1982) FLC 91-243; [1982] FamCA 31
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
Suiker and Suiker (1993) FLC 92-436; [1993] FamCA 141
Division:
Appeal Division
Number of paragraphs:
44
Date of hearing:
17 February 2021
Place:
Heard in Melbourne (via video link), delivered in Brisbane
Counsel for the Appellant:
Dr Smith
Solicitor for the Appellant:
Pearsons Lawyers Pty Ltd
Counsel for the Respondent:
Mr Combes
Solicitor for the Respondent:
Irvine Lawyers
ORDERS
SOA 75 of 2020
MLC 1888 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR SARBER
Appellant
AND: MS TACOMA
Respondent
ORDER MADE BY:
STRICKLAND, RYAN & KENT JJ
DATE OF ORDER:
17 FEBRUARY 2021
ORDERS MADE ON 17 FEBRUARY 2021
IT IS ORDERED BY CONSENT:
1.The respondent be granted leave to rely on the Summary of Argument and List of Authorities filed on 9 February 2021 and the Schedule of Costs filed on 10 February 2021.
2.The appeal be allowed.
3.The orders made by Judge McNab on 21 August 2020 and the orders made by Judge Bender on 5 August 2019 be set aside.
AND IT IS FURTHER ORDERED
4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 him in relation to the appeal.
5.The respondent’s oral application for a costs certificate in respect of the costs incurred by her in relation to the appeal be dismissed.
IT IS NOTED THAT:
The reasons for judgment of the Full Court will follow these orders and will be published and provided to the parties as soon as is practicable.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sarber & Tacoma has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, RYAN & KENT JJ
On 5 August 2019 a Judge of the Federal Circuit Court of Australia (“the FCC”) entertained, in chambers, an application purportedly made pursuant to r 13.04 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) for an order by consent. The Judge made final property orders (“the substantive orders”) purportedly by consent and pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) concluding proceedings between Mr Sarber and Ms Tacoma.
On 21 August 2020 the primary judge in the FCC dismissed Mr Sarber’s application pursuant to s 90SN(1)(a) of the Act contending that the substantive orders be set aside by reason of a miscarriage of justice.
Mr Sarber appeals from the order of 21 August 2020. Consequent upon Ms Tacoma, by her counsel, conceding the appeal in the course of the hearing of the appeal on 17 February 2021 this Court, being satisfied that the concession was appropriate, made orders with the consent of the parties allowing the appeal and setting aside both the orders of 21 August 2020 and the substantive orders. We further ordered the grant to Mr Sarber of a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of his costs of the appeal, and we dismissed Ms Tacoma’s oral application for such a certificate.
These are our reasons for those orders.
In circumstances where this appeal is conceded by the respondent it is unnecessary to traverse each of the grounds of appeal in detail. It is necessary only that we explain our satisfaction that the concession of the appeal is properly made, our re-exercise of the discretion to set aside the substantive orders as consented to by the parties, and our grant of a costs certificate to Mr Sarber by reason of error of law by the primary judge.
BACKGROUND
Ms Tacoma initiated proceedings in the FCC on 22 February 2019 seeking orders for property settlement pursuant to s 90SM of the Act, contending that the parties were in a de facto relationship from early 2006 until late 2018.
By his Response filed on 9 April 2019 Mr Sarber, then represented by solicitors, disputed the existence of the de facto relationship yet, in conflict with that contention which went to the existence of jurisdiction under s 90SM, sought orders that could only be made in exercise of that jurisdiction.
On 26 July 2019 the parties participated in a mediation, each represented by counsel and solicitors. At mediation a partly typed and partly handwritten document headed “Minutes of Final Property Orders” was apparently signed by both parties, although no version of this document signed by both parties was before either the primary judge or before the judge who made the substantive orders, as will be further discussed. That minute included a provision that “the Solicitor for the Applicant/Respondent file 3/___ clean copies of these Orders within ___ days”.
On 30 July 2019 Ms Tacoma’s solicitors, Irvine Lawyers, sent Mr Sarber’s then solicitors, RP Hoban Lawyers and Conveyancers (“RP Hoban”), an engrossed version of the proposed orders accompanied by, importantly, a proposed joint letter to be provided to the Court.
On 31 July 2019 Pearsons Lawyers wrote to RP Hoban. That letter confirmed that Pearsons Lawyers had been instructed to act on behalf of Mr Sarber and enclosed an authority for the handover of the file. That letter also contained the request that Ms Tacoma’s lawyers be notified that Pearsons Lawyers now represent Mr Sarber and that all future correspondence and communication ought be directed to Pearsons Lawyers.
On 1 August 2019 RP Hoban wrote by email to Irvine Lawyers responding to that firm’s email which enclosed the engrossed orders and the proposed joint letter to the Court. That email was in the following relevant terms:
Please note that we no longer act on behalf of the above mentioned client. Mr Sarber is now represented by Pearsons Lawyers.
We do believe that the orders provided are an accurate representation of the mediation outcome.
On 2 August 2019 RP Hoban sent an email to Irvine Lawyers attaching a copy of a Notice of Intention to Withdraw as Lawyer addressed to Mr Sarber and dated 31 July 2019.
Subsequently, also on 2 August 2019, despite not having received a countersigned “joint” letter as proposed and without reference to Mr Sarber directly or to either RP Hoban or Pearsons Lawyers, Irvine Lawyers forwarded correspondence directly to the Associate of the Judge who ultimately made the substantive orders, which letter was in these relevant terms:
We refer to the above matter and enclose the following documents:
1.engrossed Minute of Consent Orders;
2.certification page; and
3.letter in support of outcome being just and equitable.
We advise that we received confirmation by the other side on 1 August 2019 stating that the Orders were an accurate record of the mediation outcome (enclosed).
With respect to the letter in support of the outcome being just and reasonable, we advise that the other side have received it but have not responded beyond saying that they no longer act. However, as of today, the other side remain on record as acting.
Notably this letter to the Judge’s Associate made no reference to the fact that Pearsons Lawyers had been retained by Mr Sarber to act for him.
The accompanying letter to the Registry, described as “letter in support of outcome being just and equitable” was in these relevant terms:
We refer to the proposed Minutes of Consent Orders dated 26 July 2019 (attached) and make the following submissions in support of the proposed Orders:
1.There was a Mediation of this matter on 26 July 2019 conducted by [name] of Counsel;
2.Both parties were represented by Counsel and their respective Solicitors;
3.There was no agreement on whether there had been a de facto relationship and if so when it commenced and ended;
4.There was agreement on a “pool” for the purposes of the Mediation comprising:
[details set out]
5.The Orders agreed upon provide to [Ms Tacoma] approximately 22.8% of the asset pool;
6.That percentage recognises the length of the relationship, [Mr Sarber’s] greater initial contribution and a degree of dissipation of assets on account of [Ms Tacoma’s] gambling issues;
7.Neither party has s90SF(3) factors that weigh more greatly in their favour;
8.Both parties are in a stage of their respective lives where they wish to move on, not be engaged in expensive and traumatic litigation and have applied a high degree of pragmatism to the resolution of their differences;
Both Solicitors commend the proposed Orders as reflecting a just and equitable outcome on [sic] the circumstances and respectfully request the Court to make Orders in those terms.
It is readily apparent that the Judge asked to make the orders was, by this correspondence, led to understand that “[b]oth [s]olicitors commend the proposed Orders as reflecting a just and equitable outcome” and that both solicitors were respectfully requesting the Court to make orders in those terms.
That was obviously misleading. There had been no assertion by Mr Sarber or on his behalf by any lawyer then representing him either that the proposed orders reflected “a just and equitable outcome” nor that Mr Sarber was requesting that orders be made in those terms.
Moreover, none of the assertions in the letter were joined in by Mr Sarber or lawyers instructed to act on his behalf. For example, none of the assertions in paragraph 6, 7 nor 8 of the letter were authorised to be made by Mr Sarber or by any lawyer then representing him.
APPLICATION FOR ORDER BY CONSENT – R 13.04 OF THE FCC RULES
Rule 13.04 of the FCC Rules relevantly provides as follows:
13.04 Application for order by consent
(1)The parties to a proceeding may apply for an order in terms of an agreement reached about a matter in dispute in the proceeding by filing a draft consent order signed by each party.
(2) The draft consent order must state that it is made by consent.
(3)The Court may make such orders as the Court considers appropriate in the circumstances.
(4)If a Registrar has power to make the order, the Registrar may, unless the Registrar considers that the matter should be brought before the Court, make an order in accordance with the terms of the draft consent order.
(Emphasis added)
Self-evidently the application for the making of a consent order was advanced only by Ms Tacoma’s solicitors. Moreover, the engrossed orders submitted had not been signed by Mr Sarber.
In short, the application was advanced unilaterally in non-compliance with r 13.04 of the FCC Rules.
Perhaps more fundamentally, the letter from Ms Tacoma’s solicitors of 2 August 2019 included, in paragraph 3, the information that:
There was no agreement on whether there had been a de facto relationship and if so when it commenced and ended.
It is trite that the first task of any Court called upon to make orders is that the Court must be satisfied that it has jurisdiction to so do (Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442 at 446 and Norton & Locke (2013) FLC 93-567). We note in passing that r 13.05 of the FCC Rules provides that:
13.05Additional information
At any time before making a consent order, the Court or a Registrar may require a party to provide additional information.
It is unknown on what basis the Judge who made the substantive orders purported to resolve the question of jurisdiction, or whether the Judge considered that question. The Judge did not, for example, seek further information pursuant to r 13.05 of the FCC Rules.
In Harris v Caladine (1991) 172 CLR 84 (“Harris v Caladine”) the High Court considered the power to make consent orders under s 79 of the Act (the analogue of s 90SM) and held that in making orders, the Court must take into account the considerations set out in s 79(4) of the Act. However, the High Court observed that the extent of that consideration was less demanding in circumstances where parties have consented to the orders.
Whilst Brennan J specifically referred to a judicial order of a “superior court” his observations in this respect apply equally with respect to an order of the FCC. Brennan J outlined (at 101–102) that:
… as a judicial order of a superior court affords protection to a person executing it, the very purpose of procuring the making of orders by consent is to ensure that the terms agreed are susceptible of enforcement as a curial order.
(Citations omitted)
Brennan J stated that as the Court is required to take into account the factors in s 79(4) in making a consent order, the making of such is “no mere formality” (at 102).
Brennan J further observed with respect to the factors enumerated in s 79(4) (at 103–104):
It does not follow that, when a consent order is sought in a s. 79 application, it is necessary to conduct an inquiry into each of those factors. The Court may be satisfied that a provision is proper by reference not only to the material before the Court relating to the factors mentioned in s. 79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation in the consent order will be seen to be “proper” … Nevertheless, when an application for a consent order in a s. 79(1) matter is made there is a discretion to be exercised with reference to the propriety of the provisions with respect to financial matters. The making of a consent order in a s. 79(1) matter is not automatic.
Dawson J outlined (at 124):
… The fact that an order is sought by consent does not relieve a court, or a Registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a Registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met: see Jenkins v. Livesey [1985] A.C. 424, at pp. 437, 444.
Even if the consent pursuant to which an order is made under s. 79 amounts to a contract between the parties, it is the order itself which is of legal significance. As Lord Diplock observed in de Lasala v. de Lasala [1980] A.C. 546, at p. 560, in related circumstances:
“Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order.”
And in the case of an application under s. 79, even if there is consent amounting to a contract, that is not enough of itself to entitle the parties to an order. The requirements of the section must be satisfied.
(Emphasis added)
Leaving to one side for the moment the fundamental question as to jurisdiction to make any order under s 90SM of the Act, the purpose in Ms Tacoma’s solicitors having sought to have Mr Sarber’s then solicitor join in the terms of the correspondence of 2 August 2019 is obvious. It was to provide the Court with a joint submission by both parties to satisfy the Court called upon to make the order that the requirements of s 90SM of the Act were met in the manner discussed in Harris v Caladine. Unilateral submissions by Ms Tacoma’s solicitors did not fulfil these requirements.
Allied to this, the purpose of r 13.04 of the FCC Rules is likewise obvious. This includes ensuring that an application for an order to be made by consent is to be advanced by the parties to the proceedings (and not one party) and that all parties to a proceeding are demonstrated to be consenting to, or joining in, the making of the order at the time the court is called upon to make that order.
ERRORS OF THE PRIMARY JUDGE
It bears emphasis that statutory rights to property settlement under either Part VIII or
Part VIIIAA of the Act can only be terminated upon the making of a binding financial agreement under Part VIIIA, or the making of orders by a court. The “agreement” entered into by the parties on 26 July 2019 did not have legally binding effect upon either party unless and until a curial order was made giving legal effect to rights as deriving from the order made. Further, as is emphasised in Harris v Caladine the making of an order is not “automatic” and is “no mere formality”. It is always in prospect that subsequent to the making of an agreement of the kind here either, or both, parties may resile from the agreement prior to an order being made. As will now be discussed, the primary judge appears to have imbued the agreement of 26 July 2019 with a legal effect it simply did not have, and disregarded the obligation of a court called upon to make a consent order, independent of the parties’ agreement.Whilst the “Minutes of Final Property Order” document signed by the parties on 26 July 2019 seemingly contemplates, given the form they take, that the agreement reached would be embodied in consent orders, there was no express provision in that document to that effect. In this respect, the finding of the primary judge that the agreement “expressly provided for the Court to be approached to make orders based on the agreement” (at [38]) is wrong. Moreover, no agreed term as expressed contemplated or authorised either party to unilaterally apply to the Court for orders to be made.
The primary judge did not advert to r 13.04 of the FCC Rules. Nor did the primary judge have regard to the principles expressed in Harris v Caladine. These were material considerations not addressed or considered by the primary judge and that failure demonstrates error.
At [31] the primary judge records:
31. At no point prior to the entry of orders on 5 August 2019 did the husband withdraw his consent to the entry of judgement and there is no evidence that he instructed any firm of solicitors to communicate that he withdrew from the settlement.
(As per the original)
With respect, leaving aside that Mr Sarber was given no notice of the application being made, the relevant question was not whether Mr Sarber withdrew his consent. The question was whether it was established that, as at the time the substantive orders were made, both parties were consenting to their making. That was not established. The primary judge was in error in concluding that the approach to the Court was not unilateral (at [35]). It clearly was, and was not in compliance with r 13.04 of the FCC Rules. Moreover, a “draft consent order signed by each party”, as required by that rule, was not before the Court.
The primary judge recorded a finding with respect to the correspondence of 2 August 2019 unilaterally forwarded by Ms Tacoma’s solicitors that “both firms of solicitors commended the proposed order as reflecting a just and equitable outcome” (at [40]). That finding is plainly wrong. There was no such commendation to the Court by or on behalf of Mr Sarber, either by his former or current solicitors. As we have sought to demonstrate, the subject correspondence misled the Court to understand that “both firms of solicitors commended the proposed order as reflecting a just and equitable outcome”, when no such commendation had been made by or on behalf of Mr Sarber, either by his former solicitors (whose instructions had been terminated prior to the application being made) or by his new solicitors, or by Mr Sarber.
In this context it bears repeating that the correspondence of 2 August 2019 made no reference to the important fact that Mr Sarber had terminated the retainer of his previous solicitors and had retained new solicitors. The correspondence made no mention of the important fact that neither Mr Sarber, nor any solicitor on his behalf, was on notice that the application was to be made.
The primary judge found that “[a]ny controversy in relation of [sic] whether there was jurisdiction to make the order was quelled on the making of the agreement” (at [38]), with reference to the agreement made on 26 July 2019. However, that agreement records nothing at all about the existence or otherwise of a de facto relationship and paragraph 3 of the correspondence of 2 August 2019 can only be interpreted as meaning that Mr Sarber had maintained his denial of the existence of a de facto relationship. Absent any express acknowledgement by Mr Sarber in the agreement, that document could not “quell” that controversy and it remained necessary for the Court to be satisfied of the existence of jurisdiction before orders were made in purported exercise of it. Moreover, any agreement made in contemplation of orders being made did not have legally binding effect upon the parties’ legal rights. Those rights remained intact unless and until orders were made governing the parties’ legal rights.
Consistent then with well-established authority concerning failures in the integrity of the judicial process constituting a “miscarriage of justice” within the meaning of s 79A of the Act, and by extension s 90SN, the primary judge was wrong to conclude that no miscarriage of justice was established (Holland and Holland (1982) FLC 91-243; Gebert and Gebert (1990) FLC 92-137; Clifton and Stuart (1991) FLC 92-194 and Suiker and Suiker (1993) FLC
92-436).CONCLUSION
For these reasons we were satisfied that Ms Tacoma’s concession of the appeal, and that consequential orders ought to be made, was appropriate.
For the same reasons we were satisfied that the substantive orders ought be set aside, as was consented to by both parties, so that the proceedings in the FCC including as to any question of jurisdiction can continue.
By reason of the errors of law of the primary judge identified, we were satisfied as to the grant of a costs certificate to Mr Sarber.
As regards the application of Ms Tacoma for a costs certificate, in circumstances where the genesis of the failures in the judicial process was Ms Tacoma’s solicitors’ unilateral conduct and, it must be said, misleading of the Court in the making of the substantive orders, we declined to grant a costs certificate to Ms Tacoma. Those same features lead us to observe that it would be an unfair, unreasonable and improper imposition upon Ms Tacoma for her to be sought to be held responsible by her solicitors for any of the legal costs incurred for the misguided application for consent orders, the proceedings before the primary judge or the costs incurred on appeal.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Ryan & Kent.
Associate:
Dated: 24 February 2021
0
3
3