Selwood & Anor and Selwood and Selwood
[2017] FamCAFC 197
•19 September 2017
FAMILY COURT OF AUSTRALIA
| SELWOOD AND ANOR & SELWOOD & SELWOOD | [2017] FamCAFC 197 |
| FAMILY LAW – APPEAL – procedural fairness where the trial judge expressed a preliminary view as to the outcome of the proceedings –where the orders ultimately pronounced were not in accordance with this preliminary view – where the appellants contend that they were denied procedural fairness because her Honour failed to seek further addresses from the parties after changing her view – where the preliminary view was expressed at the conclusion of oral argument when the parties had finished making their oral submissions – where no error demonstrated. FAMILY LAW – APPEAL – JUDGMENTS – adequacy of reasons – where the appellant contends that her Honour’s reasons do not adequately explain the conclusion reached by her Honour when regard is had to the preliminary view her Honour expressed – where no error demonstrated – appeal dismissed. |
| Family Law Act 1975 (Cth) |
| R v Tupou; Ex Parte A-G (Qld) [2005] QCA 179 |
| FIRST APPELLANTS: | Ms K Selwood & Mr H Selwood |
| SECOND APPELLANT: | MM Pty Ltd trading as F Contracting |
| FIRST RESPONDENT: | Ms Selwood |
| SECOND RESPONDENT: | Mr Selwood |
| FILE NUMBER: | DNC | 359 | of | 2010 |
| APPEAL NUMBER: | NA | 37 | of | 2016 |
| DATE DELIVERED: | 19 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Murphy and Kent JJ |
| HEARING DATE: | 26 April 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 May 2016, 26 May 2016 |
| LOWER COURT MNC: | [2016] FamCA 404 [2016] FamCA 403 |
REPRESENTATION
| COUNSEL FOR THE FIRST AND SECOND APPELLANTS: | Mr S Williams with Mr Feely |
| SOLICITOR FOR THE FIRST AND SECOND APPELLANTS: | Ward Keller Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Looney QC with Ms Harding |
| SOLICITOR FOR THE FIRST RESPONDENT: | Withnalls Lawyers |
| THE SECOND RESPONDENT: | No appearance |
Orders
The appellants have leave to rely upon the Further Amended Notice of Appeal filed 21 April 2017 including Ground 4A.
The appeal from the orders made by Justice Dawe on 26 May 2016 be dismissed.
The appellants pay the first respondent’s costs of and incidental to the appeal in the sum agreed or failing agreement, as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood and Anor & Selwood & Selwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 37 of 2016
File Number: DNC 359 of 2010
| Ms K Selwood and Mr H Selwood & MM Pty Ltd trading as F Contracting |
Appellants
And
| Ms Selwood |
First Respondent
And
Mr Selwood
Second Respondent
REASONS FOR JUDGMENT
Mr and Mrs Selwood Snr, the parents of Mr Selwood (“the husband”), and a corporate entity associated with them (“the appellants”), seek leave to appeal, and if leave is granted, to appeal from orders made by Dawe J on 26 May 2016. The same grounds are relied upon by the appellants for leave and for the appeal if leave is granted.
Ms Selwood (“the wife”) resists this appeal. The husband did not participate in the appeal proceedings.
The subject orders were directed to distributing a capital fund of $788,979.59 resulting from the sale of property of the husband and the wife pursuant to final property settlement orders made on 18 July 2014. The subject orders resolved competing claims by the wife, on the one hand, and the husband and his parents on the other, as to the manner in which the subject funds ought be disbursed.
The context in which the competing claims arose
An issue in the property settlement proceedings between the husband and wife was a claim by the appellants of a debt asserted to be owed to them. The appellants intervened in the property settlement proceedings to pursue that claim.
On 13 July 2012 that claim was resolved as reflected in the following terms of a consent order entered into by the parties and made by the Court:
1.That the husband and the wife pay to the [appellants] from the property pool of the husband and wife the sum of $375,000 in the reverse proportion found b y the Court or by resolution to be their entitlement under section 79 and section 75(2) of the Family Law Act.
…
3. That the husband and wife pay any respective sums payable to the [appellants] within 7 days of the wife receiving her entitlement proceeds pursuant to judgment or resolution.
Those orders resolved the issues in respect of the appellants, who were subsequently disjoined and played no further part in the substantive hearing (other than as witnesses in the husband’s case).
As is reflected in the terms of the consent order, obviously it was not known at the time of its making what “proportion” of property interests each of the husband and wife respectively would ultimately be found to be entitled to in the yet to be determined property settlement orders. That became known on 18 July 2014 when the trial judge determined that the wife was entitled to 70 per cent, and the husband 30 per cent, of the parties’ net assets including superannuation interests.
Informed by that determination, the consent order of 13 July 2012 operated with the effect that the wife was liable to pay 30 per cent of the $375,000 agreed sum to be paid to the appellants, that is, $112,500, whilst the husband was liable to pay 70 per cent of that sum, that is $262,500. As Order 3 of the consent order provided, the husband and wife were each, severally, obliged to pay those respective sums to the appellants “within 7 days of the wife receiving her entitlement proceeds pursuant to judgment or resolution”.
Importantly though, as we raised with the parties on the hearing of this appeal, it can be seen from the reasons for judgment delivered by the trial judge on 18 July 2014 for the property orders made (at [190]), that in arriving at a determination of the combined net assets of the husband and wife (including superannuation interests), to which the 70 per cent/30 per cent apportionment was applied, the trial judge deducted the full amount of $375,000. That has a plainly unintended result. The wife’s 70 per cent entitlement to net assets after deduction of that liability and her payment of $112,500 to the appellants means that, as between the husband and wife, the wife meets 70 per cent of that $375,000 liability. That is demonstrated by the following calculation, a copy of which this Court provided to each party on the hearing of this appeal:
| 70/30 OUTCOME | |
| HUSBAND TO PAY 70% = | $262,500 |
| WIFE TO PAY 30% = | $112,500 |
| NET ASSETS (EXCL. DEBT) = | $2,556,478.30 |
| WIFE | |
| 70% TO WIFE = | $1,789,534.60 |
| LESS PAYMENT TO PARENTS | ($112,500.00) |
| END RESULT | $1,677,034.60 |
| HUSBAND | |
| 30% TO HUSBAND = | $766,943.70 |
| LESS PAYMENT TO PARENTS | ($262,500.00) |
| $504,443.70 | |
| ACTUAL | |
| NET ASSETS (INCL. DEBT) | $2,181,478.33 |
| WIFE – 70% = | $1,527,035.00 |
| LESS PAYMENT TO PARENTS | ($112,500.00) |
| END RESULT | $1,414,535.00 |
Whilst, surprisingly, this fact was not raised in argument before her Honour in the subject application, it is fundamentally important to recognise that the combined effect of the consent orders made on 13 July 2012 and the property settlement orders made on 18 July 2014 is to benefit the husband with a 70 per cent contribution by the wife towards the $375,000 liability, despite the obvious intent of the consent orders for the wife to be liable for only 30 per cent of that debt.
Pursuant to the property settlement orders made on 18 July 2014, the wife was afforded an option to retain three real properties then held by the parties in satisfaction of her entitlement and pay $591,338.33 to the husband, or alternatively, to retain the former matrimonial home and sell the other properties. The wife elected to retain the former matrimonial home and the other properties were sold.
Order 23 of the final property settlement orders dealt with how the proceeds of sale were to be distributed in this eventuality to achieve an overall division of property interests of 70 per cent to the wife and 30 per cent to the husband. The sum of $770,000 was ultimately received from the sale of the properties and held on trust for the parties (“the trust fund”). The effect of Order 23 was stayed pending the hearing of an appeal filed by the husband from the property settlement proceedings.
The appeal was ultimately unsuccessful and the husband was ordered to pay the wife’s costs of and incidental to the appeal.
As at the time the wife filed her application in a case on 3 May 2016 seeking orders for distribution of the trust fund, the wife had ordered entitlements as to:
a)$477,290.92 as her s 79 entitlement pursuant to the 18 July 2014 property settlement orders;
b)$170,908.42 for costs ordered to be paid by the husband to her pursuant to an order made on 26 February 2016;
c)Her costs of the appeal as ordered on 21 March 2016, but yet to be agreed or assessed, claimed by the wife in the amount of $84,963.00;
d)$35,797.60 in respect of liabilities ordered to be paid by the husband pursuant to orders made on 11 March 2016.
On the hearing of the application the husband sought orders including that the wife receive from the trust fund a total of $464,404.15, on his interpretation of the wife’s s 79 entitlement under the property settlement orders. He also sought an order that the appellants receive $262,500 from the trust fund referable to discharging his liability to pay the appellants under the consent orders.
For their part, the appellants sought an order that they be paid $375,000 from the trust fund.
In the result, the trial judge made orders dismissing the cross-applications of the husband and the appellants and made orders in the terms sought by the wife: that she be paid her entitlement pursuant to the final property settlement orders and the costs to which she was entitled; and required a further $85,000 to remain on trust pending the outcome of the outstanding costs assessment of the wife’s costs of appeal. The appellants did not receive any funds as a consequence of these orders.
Appeal issues
Given that the trial judge did not make any dispositive orders on 12 May 2016 when the application was heard, the appellants sensibly abandoned Grounds 1 and 4 at the hearing, each of which was predicated upon the misplaced contention that the trial judge delivered “judgment” on 12 May 2016.
There remain two central challenges sought to be agitated by the appellants, namely:
a)In proceeding to complete delivery of reasons and make orders on 26 May 2016, her Honour made orders inconsistent with a statement of intention or view the trial judge had expressed when commencing to give ex tempore reasons on 12 May 2016 at the conclusion of the hearing. As a consequence the trial judge denied procedural fairness or natural justice to the appellants (Grounds 2 and 3); and
b)That the trial judge failed to provide adequate reasons for the orders made on 26 May 2016, particularly when the orders ultimately made were inconsistent with that earlier statement of intention or view (Ground 4A).
The appellants require leave to rely upon Ground 4A, in circumstances where it was first raised by the filing of an amended notice of appeal and supplementary summary of argument only on the afternoon of 21 April 2017 (that is one clear business day prior to the date of the hearing of the appeal).
Notwithstanding the lateness, and whilst the wife formally objects to the grant of leave, a supplementary summary of argument of the wife was filed in advance of the hearing and the only opposition raised to the grant of leave is that there is no merit in the proposed ground, and no explanation proffered for the lateness of the amendment. In short, there is no claim of prejudice and obviously the wife has been able to address the amended ground. In those circumstances we propose to grant leave to the appellants to rely upon Ground 4A.
Proceedings before the trial judge
The application of the wife, and the cross-applications by the appellants and husband, were heard by the trial judge on 12 May 2016. On that date her Honour made orders joining the appellants to the proceedings and subsequently heard submissions from all parties on the substance of the applications. Additional orders were made in respect of incidental matters not the subject of these proceedings.
At the conclusion of the 12 May hearing her Honour commenced delivering ex tempore reasons, and subsequently engaged in dialogue with counsel as to the correct arithmetic to achieve various outcomes. Having concluded this dialogue, her Honour did not complete delivery of reasons but made the following remarks (which do not find their way into the settled reasons for judgment delivered of that date):
It is my view, however, that the intervenors, as such, are entitled to receive from the proceeds of sale, which would otherwise be distributed to the parties for their overall property settlement, in this matter in priority to the orders for costs, which would otherwise be payable by the husband from the amounts otherwise due to him. I therefore propose to adjourn the further consideration of the final orders and these ex tempore reasons to a time when I will deliver in my reasons for judgment the exact amounts which would be payable and that those orders will provide for the payment to the wife of funds and to the intervenors of funds and if there is any available funds after the calculations of those funds and that would be not only the amount due by the husband, but also the amount due by the wife, pursuant to the orders, to ensure that those orders are paid without the need for ongoing litigation. Any of the leftover funds would be payable to the wife but it is my initial understanding that if the full amount due to the intervenors is paid, there would not be sufficient funds left for the, any payment of any funds to the husband or for and on behalf of the husband in relation to the significant costs orders, which are either outstanding or due to be outstanding pursuant to the appeal costs determination.
(Emphasis added)
On 26 May 2016 her Honour made the orders determining the applications and delivered further reasons to those of 12 May 2016.
The procedural fairness argument
The appellants argue Grounds 2 and 3 together, and it is likewise convenient that we address these together.
It is contended by the appellants (at appellants’ summary of argument at paragraph 26) that “[n]o notice was provided to any party that orders would be made contrary to the indication on 12 May 2016 and subsequently no opportunity was given to the parties to be heard further”.
However, there is no suggestion that the appellants were not afforded a full opportunity to make such submissions as they sought to advance at the hearing of the applications on 12 May 2016. It bears emphasis in this context that those submissions were necessarily framed by the competing applications, including that of the wife for orders which did not contemplate any of the trust funds being disbursed to the appellants. The statements of the trial judge quoted above were made after submissions by all parties were complete (save as to any question as to costs). That is, there is no suggestion that the trial judge interrupted the appellants’ submissions, or that those statements by the trial judge somehow forestalled the completion of the appellants’ submissions.
Neither the appellants’ summary of argument, nor the oral argument of their counsel on appeal, identifies what further or additional submissions would, or could, have been made by the appellants.
In arguing this ground, counsel for the appellants sought to focus upon what appears in [10] and [11] of the reasons delivered on 26 May 2016 as follows:
10. The consent order which provided for payment of the monies to the interveners was not drafted in a manner which provided them with security for that payment. Rather the orders were drafted to provide that upon the wife receiving her payments pursuant to final orders, the payments by the husband and wife should be made to the interveners within seven days.
11. I therefore do not consider that it is just and equitable, nor appropriate, for the interveners to obtain a variation of the orders made which would provide them with security for those funds.
Counsel submitted, with reference to those paragraphs, that the trial judge did not raise with the parties in the hearing the fact that the consent orders were not drafted in a manner to provide the appellants with security, and thus the appellants were denied the opportunity to address that conclusion.
That submission is confounded by a number of features. First, the proper interpretation and effect of the consent order was integral to the determinations to be made. The consent order was the very foundation for the appellants seeking any orders at all. The consent order speaks for itself. The trial judge was plainly correct to observe of its terms that it did not provide the appellants with security for the payments to be made. By its terms the consent order imposed a several, not joint, liability on each payee to make a prescribed payment. It did not, by its terms, secure either payee’s obligation to pay, to the other payee’s property or entitlement, and one payee’s obligation to pay was not enforceable as against the other. By its terms the consent order did not create an immediately enforceable obligation to pay. The obligation to pay crystallises only upon the expiration of seven days of the wife “receiving her entitlement proceeds pursuant to judgment or resolution”. That can only be legitimately interpreted as meaning the whole of such entitlement.
This highlights a significant misconception pursued by the appellants on the hearing of the application. The appellants argued before the trial judge that their entitlement was “first in time” and therefore that they should be paid in priority to the wife’s entitlements under the costs orders.
A consideration of the transcript of the hearing before her Honour on 12 May makes plain that the significant issue before her Honour was whether the intervenors entitlement pursuant to the July 2012 order or the wife’s entitlement under various costs orders should be paid first: that is, which should have priority over the other. The appellants argued before her Honour that their entitlement was first in time and therefore they should be paid in priority to the wife’s entitlement to a costs award.
That contention overlooks that the appellants’ “entitlement” to payment under the consent order was not immediate, and that entitlement crystallised only “within 7 days of the wife receiving her entitlement…” (emphasis added). In contrast, the wife was, by the terms of each of the respective orders earlier referred to, immediately entitled not only to her s 79 entitlement but to the costs ordered in her favour.
Her Honour’s characterisation at [11] of the reasons referred to, as to the appellants’ seeking a variation of the consent order, was entirely correct. The appellants were, before her Honour, seeking immediate payment from the trust fund in circumstances where under the consent order they were not entitled to payment until seven days after the wife had received the whole of her s 79 entitlement. That had yet to occur. The consent order, we repeat, did not impose a joint liability upon the husband and wife to pay $375,000, it imposed a several liability on each of those payees.
We find no merit in these grounds.
Did the trial judge provide adequate reasons?
Paragraphs [10] and [11] of the reasons delivered on 26 May, quoted above, are also a focus of the appellants’ contention that the trial judge failed to provide adequate reasons for her determination, particularly in light of the earlier quoted statements made by the trial judge on 12 May 2016.
Counsel for the appellants contended that use of the phrase “I therefore do not consider…” in [11] imports a conclusion which may arise from preceding matters but which, in this case, does not find a basis in any of the preceding paragraphs.
With respect to that contention, the findings recorded in [10] as to the proper interpretation and effect of the July 2012 consent orders provides ample explanation for the conclusion expressed in [11]. Further, the trial judge’s analysis of the wife’s entitlements in [3] to [7] include the analysis of the effect of the consent order in [7] followed by the conclusion at [8] as follows:
7. … These calculations obviously do not include the payments due by both the husband and wife pursuant to the consent orders concerning the interveners made on 13 July 2012 which provided for the sum of $375,000 to be paid to the interveners “… within 7 days of the wife receiving her entitlement proceeds pursuant to judgment or resolution” (paragraph 3 of the consent order of 13 July 2012).
8. The wife has not yet received the funds payable to her due to the ongoing dispute and delay due to the appeals and the inability of the parties to agree on the distribution.
(Italics in original)
The trial judge’s reasons of 26 May 2016 make express reference to the earlier reasons delivered on 12 May and are expressed to be “further” reasons to those delivered on 12 May 2016 (at [1]). Plainly, what “precedes” the conclusion in [11] of the 26 May reasons is all that appears in the earlier reasons. Those reasons relevantly include the following observations and findings:
6.The affidavit of the husband, which he has filed in support of the Response to an Application in a Case (being the affidavit dated 10 May but its tardiness deemed it to be filed on 11 May 2016) for this hearing before me today, on 12 May, refers to paragraph 21:
“I am of the view that my parents should be paid prior to Claudine’s costs orders being satisfied.”
7.His opinion, and his view, is not a matter which this Court would take into account in any event. He then says:
“My parent’s (sic) entitlement was part of the property settlement.”
8.It was not part of the property settlement order. It was part of the consent order made which removed them from the property settlement proceedings. He then says:
“Unless I receive my payout in accordance with order 23(d)(iv) of the orders of 18 July 2014, there will be insufficient money to provide for distribution to my parents.”
9.That is referring to his calculation of the cash that would be available. That does not indicate that there would not be other means of him obtaining funds. It then says:
“Any order other than this would impinge on my parent’s (sic) entitlement as ordered.”
10.That is not to be accepted as the parents and the other intervener have an order of this Court which is not being sought to be discharged. He then says:
“I therefore seek that they be joined to these proceedings.”
…
23. That order sought by the wife does not include any payment out of the funds held in the trust account to the interveners by account of the amounts which would be payable to them. However, the wife clearly states that she will pay to the interveners her share of the funds when she receives the funds in accordance with the orders of 13 July 2012.
…
25. In his affidavit the husband says he would not have enough funds, if the wife was successful with her orders, to pay his share of the monies due to the interveners. It is quite correct to say the husband would not receive enough from those trust funds to enable him to make the substantial payment of money due to the interveners. It is not possible, however, in the circumstances of this case for me to make any finding that he does not have the capacity to pay the interveners or that he would not make arrangements to pay the interveners, his parents and a company connected with him and his parents.
(Italics in original)
These findings inform the findings and conclusions in [10] and [11] of the 26 May reasons and fortify our assessment that the conclusion the trial judge expressed in [11] is amply explained.
The finding in [25] quoted above, in particular, resonates with the submission of counsel for the wife to the effect that both in the hearing below, and in these appeal proceedings, the appellants’ arguments proceed on the wrong premise that the expression “property pool of the husband and wife” in the July 2012 consent orders is synonymous with the trust fund the subject of these applications. Plainly, as counsel for the wife correctly observed, it is not.
The finding in [25] also resonates with two other features. First, that which we have earlier discussed as to the effect of the trial judge deducting the total debt of $375,000 in arriving at a net asset figure to which the wife’s 70 per cent entitlement was applied. As already observed, the effect of that approach is that when the wife pays the appellants $112,500 she will, as between the husband and wife, have met far more than the 30 per cent proportion of that liability which the consent orders intended to effect.
Second, this was a case where, in the property settlement proceedings, the trial judge made numerous substantial findings as to the husband’s significant failures to fully and frankly disclose his assets and financial circumstances – “the property pool of the husband and wife”. Those important findings were undisturbed by the Full Court on the husband’s unsuccessful appeal. As but one of a number of examples, the following appears in the judgment of the Full Court at [65]
65. In this regard, her Honour considered the authorities cited in Gould and concluded (at [206]):
…it would be appropriate to “readily conclude the asset pool is greater than demonstrated”. It is also appropriate therefore to “to err on the side of generosity” to the wife who has been disadvantaged by the husband’s lack of candour. A significant adjustment in favour of the wife is therefore appropriate.
(Italics in original)
Whilst it may be observed that by reason of the husband’s default the Court was denied the capacity to determine the full extent of “the property pool of the husband and the wife” as referred to in the consent orders, the point of emphasis is that this description is not synonymous with the trust fund, the subject of the applications below. As but one further simple example, the trust fund does not include the $150,000 the husband received (as did the wife) pursuant to an order made on 14 October 2014 to be held pending the determination of the appeal, which was determined on 21 March 2016, (well in advance of the subject applications).
As was observed by this Court in Rafferty & Spencer (2016) FLC 93-710, after discussion of well-known authorities concerning adequacy of reasons, at [37] and [38]:
37. However, as the principles emanating from the authorities referred to make clear, an appeal court does not test the adequacy of Reasons by analysing whether each and every concern, view or opinion, tentative or robust, expressed by the trial judge in the course of evidence or submissions appears in, or is mirrored by, the trial judge’s Reasons for Judgment. It will almost inevitably be the case that concerns or views held by a trial judge in the course of a trial as the evidence unfolds, or during submissions, including those articulated by the trial judge, will abate upon and from the crystallisation by the trial judge of the findings to be made upon the evidence which is ultimately, upon reflection, accepted.
38. The test is as earlier stated and by its application here, the reasoning upon which the decision of the trial judge is based is readily ascertained and justice can be seen to have been done.
So too in this case, the test of adequacy of reasons is not whether the trial judge made explicit reference to what is, properly viewed in light of the reasons as a whole, an earlier tentative view or opinion, but, rather, whether the reasons as a whole explain the decision the trial judge ultimately arrived at as reflected in the orders made and whether justice can be seen to have been done.
It is clear enough that having given herself the opportunity to reflect upon the central features of this case, by adjourning on 12 May for the purpose of considering further reasons, the trial judge properly and correctly characterised the true nature of the appellants’ application for orders as being an application seeking variation of the July 2012 consent orders. The extent of variation sought included securing both parties’ obligations to pay them, to the trust fund, and converting what was yet to be an enforceable and severable obligation to pay by each party, into an immediately enforceable one.
We accept the submission of counsel for the wife that her Honour was not required to provide any further explanation or reasons for the orders ultimately made and that any view expressed by the trial judge on 12 May 2016 was preliminary in nature, and the fact that her Honour ultimately made orders which did not align with this preliminary view was not problematic. Her Honour was required to provide adequate reasons for the orders which were ultimately made and this her Honour did.
With reference to the feature that statements made by the trial judge on 12 May 2016 do not appear in the reasons settled by her Honour, counsel for the appellants sought to rely upon R v Tupou; Ex Parte A-G (Qld) [2005] QCA 179 (“Tupou”). In that case the Queensland Court of Appeal overturned a sentence pronounced by the trial judge contemporaneously with delivering ex tempore reasons. Upon receipt of the transcript containing the sentencing remarks the sentencing judge had made substantial and material changes to the transcript prior to its publication.
However, aside from the fact that Tupou is a criminal case, the central features in Tupou are far removed from those here. The substantial and material changes made by the sentencing judge in Tupou included removal of statements as to whether the complainant offered provocation to the attack upon him in sentencing the offender for unlawfully doing grievous bodily harm. The significant amendment was the deletion of the unequivocal confirmation at the sentencing hearing that the attack was unprovoked, a finding of fact fundamentally important to assessing the degree of the offender’s criminality.
In this case, the trial judge did not pronounce orders on 12 May 2016 determining the substantive applications. Moreover, the statements made by the trial judge cannot be characterised as conclusions as to the law, nor as findings as to fact, relevant to the determination to be made.
As this Court observed in Swaney & Ward (1988) FLC 91-928 at 76,718:
It is clear from authorities such as Carroll v. Price (1960) V.R. 651 at p. 657 and Pittalls v. Shere Fettin (1986) Q.B. 868 at p. 879 that a trial Judge does not become functus officio until after the orders which flow from his reasons for judgment have issued formally from the Court.
A trial Judge may hear further evidence, amend his or her reasons for judgment or change such reasons altogether at any time prior to the final issue of the order from the Court…
It undoubtedly was desirable that the trial judge acknowledge in her reasons as finalised that she had revised her position from the tentative view or intention earlier expressed. That was all the more so when the revised reasons as settled by her Honour removed that reference. We would not wish to be seen as endorsing that approach as conventional. However, the test for assessing whether reasons for judgment are adequate is to be applied by reference to the judicial act performed and the orders as determined to be made. The test is whether the reasons for the orders made are adequate, not whether the reasons explain other things.
In summary, the trial judge was undoubtedly correct in characterising the appellants’ application before her as an application for variation of the consent orders made in July 2012 and to enforce that order as varied. Her Honour’s reasons adequately explain her determination to reject that application. The wife’s identified and crystallised ordered entitlements, as identified above, were plainly enforceable and no more reasons than those which were provided by her Honour were necessary to adequately explain the determination in favour of the wife’s application by the orders made.
We find no substance in the complaints as to the adequacy of the trial judge’s reasons.
Leave to appeal and conclusion
Whilst the appellants sought leave to appeal counsel for the wife contended that the subject orders were final in their legal effect concerning disposition of the trust funds such that leave to appeal those orders was not required.
If leave were required we would refuse it on the basis that the appellants do not demonstrate that in all the circumstances the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; nor that supposing the decision to be wrong, substantial injustice would result if leave were refused.
If, as we consider to be the case, the subject orders were final in legal effect such that leave is not required then for the reasons already discussed the appeal should be dismissed.
Costs
In the event the appeal was dismissed counsel for the appellants acknowledged that nothing could be said against the proposition that the wife should have her costs of and incidental to the appeal. That order was sought by the wife and we are satisfied that in circumstances where the appeal has been wholly unsuccessful there are justifying circumstances for the order sought by the wife to be made and we therefore make that order.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Murphy & Kent JJ) delivered on 19 September 2017.
Associate:
Date: 19 September 2017
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