Saso & Saso (No 2)
[2023] FedCFamC1A 179
•19 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Saso & Saso (No 2) [2023] FedCFamC1A 179
Appeal from: Saso & Saso (No 2) [2023] FedCFamC2F 1196 Appeal number: NAA 278 of 2023 File number: BRC 881 of 2021 Judgment of: AUSTIN J Date of judgment: 19 October 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant wife seeks leave to appeal from procedural orders made by the primary judge in anticipation of the final hearing between the spouses – Where no appeal lies from a decision about the grant or refusal of an adjournment – Where the wife’s complaint that the primary judge denied her procedural fairness by not allowing her leave to rely upon the affidavits of three witnesses at trial is rejected – Where the procedural direction requiring the wife to file written submissions within a given period is not an appealable judgment – Where the appeal has no reasonable prospects of success – Where the trial has been heard –Appeal summarily dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VIII, s 102NA and s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 46, 192
Cases cited: Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 37 Date of hearing: 19 October 2023 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person Counsel for the Respondent: Ms Dart Solicitor for the Respondent: C & C Law ORDERS
NAA 278 of 2023
BRC 881 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SASO
Applicant
AND: MR SASO
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
19 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed on 19 October 2023 is dismissed.
2.The respondent’s application for costs is dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saso & Saso has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Subject to the grant of leave to bring it, this appeal by the wife lies from some selected procedural orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 September 2023 in anticipation of the final hearing of the proceedings commencing some weeks later on 9 October 2023.
The appeal proceeding was listed for hearing on 19 October 2023 to afford the applicant the chance to make submissions as to how the proposed appeal enjoys reasonable prospects of success, so as to avoid its summary dismissal. She failed to discharge that burden.
Background
The parties are engaged in proceedings concerning financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), which commenced in January 2021.
The proceedings were first heard in September 2022, but the wife’s appeal from the resulting judgment was allowed in May 2023 and the proceedings were remitted for re-hearing (Saso & Saso [2023] FedCFamC1A 65).
The primary judge assumed control of the litigation shortly afterwards and made procedural directions to ensure the readiness of the proceedings for re-hearing in September 2023. The wife did not comply with those directions. The day before the new trial was due to start on 6 September 2023, the wife filed an application seeking an adjournment of the trial for not less than three months and some supplementary procedural orders.
The wife’s application was entertained on the day the trial was to start and was partially granted. The trial was adjourned, but only for one month until 9 October 2023, and the parties were ordered to disclose further documents to one another. In summary, the orders provided as follows:
(a)further disclosure between the parties (Orders 2 and 3);
(b)adjournment of the trial to 9 October 2023 (Order 5);
(c)the refusal of permission for the wife to rely upon the evidence of certain witnesses at the trial (Order 6)
(d)the grant of permission to the wife to rely upon the evidence of a doctor at the trial (Order 7);
(e)procedural orders to ensure the readiness of the proceedings for trial (Orders 8 to 14);
(f)the direction of the wife to file any submissions about the husband’s costs application (Order 4); and otherwise
(g)the dismissal of the wife’s interlocutory application (Order 1).
It is presently unclear whether the orders were pronounced orally in Court, but they were published with the reasons for judgment a week later on 14 September 2023.
The wife filed an Amended Notice of Appeal on the morning the appeal was listed. It discloses the intended appeal lies from all of the orders, but her amended grounds of appeal refer to only Orders 1, 3, 4, 5 and 6.
In the meantime, the trial was heard on 9 October 2023. The wife did not file and serve any evidence as required by the procedural orders, though the primary judge permitted her to rely upon an historical affidavit and financial statement. She was self-represented and unable to cross-examine the husband because of an embargo pursuant to s 102NA of the Act. She was not cross-examined by the husband’s counsel. The trial proceeded by way of submissions made by the husband’s counsel based on the available unchallenged evidence. The trial is now complete, save for the wife’s final submissions, which the primary judge will receive on 25 October 2023.
Summary dismissal
Appeal proceedings may be summarily dismissed if they have no reasonable prospects of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).
Here, the wife acknowledges the need to seek leave to appeal, which requires her to demonstrate the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
The applicant has no reasonable prospects of fulfilling either limb of that test in respect of any of the five orders which are the subject of challenge.
Order 5
By Order 5 the primary judge granted an adjournment of the trial, but not for as long as the wife sought. She asked for three months but received a one month reprieve instead.
Three of the seven grounds of appeal (Grounds 1, 5 and 7) attack Order 5, all of which are styled as errors by the alleged denial of procedural fairness.
However, the complaint of denial of procedural fairness is not regularly invoked because the denial of procedural fairness is alleged to only result from the refusal to adjourn the trial for the longer period the wife requested. There are two reasons why the complaint cannot be sustained.
First, no appeal lies from a decision about the grant or refusal of an adjournment (s 26(2)(b)(ii) of the FCFCA Act), and Order 5 embodies such a decision.
Secondly, the doctrine of procedural fairness concerns the fairness of the hearing, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]). In this instance, the wife was given a fair hearing before her adjournment application was determined. Her disappointment with the decision about the length of the adjournment does not mean she was not accorded procedural fairness.
Order 6
By Order 6, the primary judge denied the wife leave to rely upon the affidavits of three witnesses at the trial.
In that regard, the primary judge said this in the reasons for judgment:
94.Counsel for the Husband objected to the above affidavits being relied upon by the Wife at trial in circumstances where none of the evidence contained therein is relevant to these proceedings.
95.I have heard what the Wife had to say about the relevance of the affidavits provided by her two daughters and friend on her behalf. However, I do not accept that they have any relevance to these proceedings and therefore make an Order that the Wife is not to be given leave to rely upon them at trial.
The wife intends to challenge Order 6 by Ground 6, which contends as follows:
The primary Judge failed to afford the Wife procedural fairness prior to making the relevant Court Order Number 6, by not permitting the Wife to rely upon the sworn and/or affirmed affidavits by the Wife’s two adult daughters and a close friend, because Counsel for the Husband objected to the affidavits being relied upon by the Wife at trial.
As can be seen, the ground does not assert the nature of the error committed by the primary judge in making the subject order.
The parties were each heard by the primary judge about why they contended the contested evidence either was or was not relevant, in which event the complaint of denial of procedural fairness is demonstrably mistaken. Having heard such submissions, her Honour concluded that the evidence should not be received in the trial because it was irrelevant to the issues in dispute. Her Honour was both duty-bound and entitled to decide that evidentiary dispute over the witnesses so as to ensure the litigation was finalised quickly, inexpensively and efficiently (s 192(2)(c) of the FCFCA Act). The primary judge might have made an evidentiary error, but did not deny the mother procedural fairness.
Any complaint about the invalidity of the evidentiary decision can be agitated in the context of any appeal brought from the orders which are eventually made to conclude the financial cause between the parties, but the evidentiary ruling is not itself a judgment from which an appeal lies under s 26(1) of the FCFCA Act (Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26; Commonwealth v Mullane (1961) 106 CLR 166 at 169).
Order 4
Nor is Order 4 an appealable judgment. It is merely a procedural direction requiring the wife to file written submissions within a given period in respect of the husband’s costs application. The order does not decide any dispute between the parties.
Ground 4 is the intended challenge to Order 4 and it simply complains the wife was denied procedural fairness by not being given enough time within which to file her submissions.
Order 3
Order 3 requires the husband to provide further documents to the wife by way of “updated disclosure” by 21 September 2023.
The order is attacked by Grounds 2 and 3, both of which complain of the denial of procedural fairness by the primary judge refusing to make an order directing the husband to produce even more documents than were ordered. Self-evidently, the refusal to make an order compelling one party’s disclosure to the other party in more comprehensive terms than was sought by the second party is not a manifestation of procedural unfairness.
In any event, the operation of the order has since been exhausted by the trial having been heard. The evidence is closed. The wife did not give evidence at the trial of the husband’s failure to comply with Order 3.
In any appeal brought from the orders ultimately made to determine the financial cause, it might be feasible to impugn the judgment on grounds that the primary judge erred by improperly confining the extent of the husband’s financial disclosure.
Order 1
Order 1 dismissed the wife’s Application in an Appeal filed on 5 September 2023, in so far as the application conflicts with or was not granted by the other orders made.
The only respect in which the interim application otherwise failed was by the refusal to grant the wife’s request for a “retrospective valuation” of a business sold in 2021. The primary judge dealt with that issue in the reasons for judgment (at [49]–[58]). Her Honour gave several good reasons why the application was refused, none of which are challenged by the wife in the grounds of appeal.
Her complaint about Order 1 is addressed by only Ground 1, which only refers to the refusal to grant her application to adjourn the trial for not less than three months. That is covered by the discussion above in respect of Order 5.
Disposition
None of the proposed grounds of appeal appear to enjoy any reasonable prospects of success.
Moreover, the denial of leave to appeal will not cause the wife to suffer serious hardship. The orders made on 14 September 2023 were overtaken by events on 9 October 2023, when the trial was heard.
Once the primary judge finally makes orders to determine the financial cause between the parties, the wife will have a right to appeal from those orders if she asserts they are vitiated by some appealable error.
The application for leave to appeal from the orders made on 14 September 2023 should be summarily dismissed.
The husband sought his costs of the appeal, but the application is dismissed. The husband has not yet needed to do anything in the appeal, save for reading the original and amended grounds of appeal. The parties are usually obliged to bear their own costs of the proceedings (s 117(1)) and the husband failed to persuade otherwise (s 117(2) and s 117(2A)).
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 20 October 2023