Sarber & Tacoma

Case [2021] FamCAFC 24

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 2019

APPEAL 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…

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Sarber & Tacoma [2021] FamCAFC 24
Case
[2021] FamCAFC 24
Decision Date

CaseChat Overview and Summary

The case of Sarber & Tacoma involved an appeal by Mr Sarber against consent orders made in the Family Court of Australia (FCCoA) by Judge Bender on 5 August 2019, and Judge McNab on 21 August 2020. The appeal was conceded by the respondent, Ms Tacoma, and the primary issues for the court were whether the consent orders should be set aside due to an error of law and whether a costs certificate should be granted to Mr Sarber. The case hinged on whether both parties truly consented to the orders and whether the court had jurisdiction to make them.

The court found that the consent orders were flawed because they were made without proper compliance with the Federal Circuit Court Rules 2001 (Cth), specifically rule 13.04, which requires both parties to be on notice of the application for the order. The court was not satisfied that both parties had truly consented as Mr Sarber and his solicitors were not on notice of the application for the order. Additionally, the court found that Ms Tacoma's solicitors acted unilaterally and misled the court, which constituted a failure in the judicial process.

As a result of the errors of law identified, the court allowed the appeal, set aside the substantive orders, and granted a costs certificate to Mr Sarber. The court declined to grant a costs certificate to Ms Tacoma due to the unilateral and misleading conduct of her solicitors.

The court's orders included setting aside the consent orders made by Judge Bender and Judge McNab, granting Mr Sarber a costs certificate for the appeal, and dismissing Ms Tacoma's application for a costs certificate. These orders ensured that the proceedings could continue in the FCCoA with proper adherence to legal procedures.

Orders

Orders of the court

SOA 75 of 2020

MLC 1888 of 2019

APPEAL 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.

Background

Background to the litigation

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; and3.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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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