SKIVINGTON & SKIVINGTON
[2019] FamCAFC 36
•11 March 2019
FAMILY COURT OF AUSTRALIA
| SKIVINGTON & SKIVINGTON | [2019] FamCAFC 36 |
| FAMILY LAW – APPEAL – PROCEDURAL – Where the Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter – Where the judge failed to comply with the requirements of Rule 13.12 of the Federal Circuit Court Rules 2001 (Cth) – Where the appeal allowed – Where costs certificates awarded. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) s 3(1) Federal Circuit Court Rules 2001(Cth) r 13.2 |
| B & B(Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | Ms Skivington |
| RESPONDENT: | Mr Skivington |
| FILE NUMBER: | PAC | 2601 | of | 2017 |
| APPEAL NUMBER: | EA | 2 | of | 2019 |
| DATE DELIVERED: | 11 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 26 February 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3952 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Ms Catton |
| SOLICITOR FOR THE RESPONDENT: | Ms Makdo |
Orders of 26 February 2019
The appeal against the orders of Judge Obradovic made on 21 November 2018 is allowed and the orders of 21 November 2018 are set aside.
The initiating application filed on 26 May 2017 and the response filed on
17 August 2017 are remitted to the Federal Circuit Court for re-hearing by a judge other than Judge Obradovic.
The Court grants to the applicant a costs certificate pursuant to the provisions of 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 applicant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 respondent in respect of the costs incurred by him in relation to the appeal.
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 Skivington & Skivington 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 2 of 2019
File Number: PAC 2601 of 2017
| Ms Skivington |
Appellant
and
| Mr Skivington |
Respondent
REASONS FOR JUDGMENT
By an initiating application filed on 26 May 2017 in the Federal Circuit Court Mr Skivington (“the husband”) sought parenting and property orders
Ms Skivington (“the wife”) filed a response to that application on
17 August 2017. On 21 November 2018 Judge Obradovic summarily dismissed both the initiating application and response on the basis that the parties had failed to prosecute the matter.
The wife appealed those orders.
When the matter came before the Full Court of the Family Court for directions to prepare the appeal for hearing, the husband conceded the appeal accepting her Honour’s orders were erroneous. Therefore orders were made allowing the appeal and setting aside the orders of the primary judge. The matter was remitted to the Federal Circuit Court to be heard by another judge.
Orders were made granting each party a costs certificate in respect of the appeal and I indicated that I would deliver short reasons for those orders. These are the reasons.
Following the filing of the husband’s initiating application on 3 July 2017, the matter came before the primary judge who made an order directing the parties to attend mediation and the matter was adjourned to 17 October 2017 for further directions. That date was “administratively vacated” and the matter was, instead, listed for 31 October 2017. Shortly before that listing, on the 27 October 2017, the parties applied for an adjournment which was considered and granted in chambers, the matter was then relisted for 2 March 2018.
According to the primary judge’s reasons, the adjournment was sought because the parties requested further time to attend the ordered mediation.
On 2 March 2018, with the consent of the parties, the matter was again adjourned (apparently on the Court’s motion) and relisted to 21 June 2018. Her Honour’s reasons indicate that by this time, the parties had informed the court that they had resolved issues concerning valuation of property, and it was proposed that relevant valuations and further mediation would take place in the adjourned period.
The listing date of 21 June 2018 was vacated on the Court’s motion and the matter then listed for 4 June 2018 for directions. However, on 1 June 2018 that date was vacated so as to give the parties time to have further mediation to resolve all outstanding issues. The adjournment was considered and granted in chambers and the matter relisted for directions on 31 August 2018.
Her Honour’s reasons record:
8. On 31 August 2018, the Court made orders by consent, inter alia, for valuation. The orders by consent included an order that the parties shall attend mediation prior to the next mention date. There was an order by the Court that there will be no further adjournments in this matter and that if the parties failed to prosecute their claim, the matter would be dismissed on the next occasion. The matter was adjourned to 9.30am on 21 November 2018.
On the 31 October 2018 the matter was adjourned in chambers at the parties’ request because the anticipated further mediation had not taken place. The matter returned before her Honour on 21 November 2018 when the parties again sought further time to complete the mediation process. Her Honour said:
10. The matter was listed on 21 November 2018 at 9.30am. No evidence was tendered or relied upon on the adjournment application previously made to chambers. As at 21 November 2018 the parties had yet to attend the mediation referred to in the notation made on
2 March 2018 and ordered by consent on 31 August 2018. No evidence was tendered or relied upon to explain why orders have not been complied with.(Footnotes omitted)
Her Honour then dismissed the proceedings purportedly pursuant to Rule 13.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the parties had failed to prosecute the matter.
While it might be the case as her Honour said at [10] that “no evidence was tendered or relied upon on the adjournment application” however, her Honour’s reasons contain a transcript extract from the submissions made to her on the adjournment application at [1].
The solicitor for the husband said:
MS HERNANDEZ: Yes, your Honour. I can indicate it is our job to convince your Honour not to dismiss the application, which – I am instructed your Honour made comments in that vein on the last occasion. I can indicate that the parties have attended mediation in between the last court date and this court date. The mediation didn’t – if I could say – finalise, in the sense that the mediator had other commitments, and another mediation has been booked. So essentially they’re partway through the mediation.
The second mediation has been booked for 10 December. What arose from the first mediation – there were some valuation issues in respect of a car and in respect of the business. Joint letters of instructions have now been sent to both of those. They expect the valuations to be returned on 6 December, prior to 10 December. And they are quite confident that the matter will settle. I understand that neither party is pressing their parenting application. Essentially, the children and the parties have worked that out themselves. And it’s really the property matter that still remains on foot, essentially. And that’s what the parties are seeking, to have the time to mediate one more time, or essentially finish the mediation that they commenced previously, with hopes of having terms.
(Emphasis added)
To those submissions the solicitor for the mother added that it had been expected that the mediation would complete on 8 November 2018 but because of the mediator’s other commitments, it was not able to be dealt with on that date.
Nevertheless, her Honour concluded that the parties had failed to prosecute the proceedings and dismissed them.
The case of B & B(Costs Certificates) (2007) FLC 93-339 (“B & B”), which in turn at 81,821 refers to the judgment of Kirby J in Cramer v Davies (1997)
72 ALJR 146 (“Cramer v Davies”), sets out the criteria which must be satisfied before a costs certificate pursuant to ss 6 or 9 of the Federal Proceedings (Costs) Act1981 (Cth) (“Costs Act”) will be issued in relation to an appeal. They are:
i)the existence of a Federal Appeal;
ii)that the appeal has succeeded on a question of law; and
iii)that the court concerned should have heard the appeal.
The appeal is clearly a “Federal Appeal” (see paragraph (j) of the definition of “Federal Appeal” in s 3(1) of the Costs Act) and although the appeal was resolved by agreement, the appeal has been heard in the relevant sense. In that regard I place reliance on Kirby J’s broad interpretation of that expression in Cramer
v Davies which is to the effect that the requisite hearing can be “no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way” (quoted in B & B at 81,822). Here, however, the hearing had not commenced before the appeal was conceded.Turning then to whether the appeal has succeeded on a question of law.
The Notice of Appeal filed 19 December 2018 contended that her Honour erred in dismissing the proceedings in that her Honour:
·Erred in her application of Rule 13.12 of the Rules 2001;
·Dismissed the proceedings in circumstances where the parties were legally represented before her;
·Failed to consider the merits of the proceedings before moving to dismiss them;
·Denied the appellant procedural fairness in not affording her the opportunity to provide evidence or make submissions on the proposed dismissal; and
·Failed to provide adequate reasons.
Rule 13.12 provides:
13.12 Dormant proceedings (1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed.
(2) The Court must not make an order under subrule (1) if:
(a) there is a future listing for the proceeding or a part of the proceeding; or
(b) an application in a case relating to the proceeding has not been determined; or
(c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or
(d) the Court has not given the parties to the proceeding notice under subrule (3).
(3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order.
(4) Notice under subrule (3) must be sent by post in an envelope marked with the Court's return address:
(a) to each party's address for service; and
(b) if a party has no address for service--to the party's last-known address.
The procedure adopted by her Honour clearly fails to comply with the mandatory steps set out by the Rule. That, of itself, would be sufficient to allow the appeal on the basis of an error of law.
However, it was further contended by the appellant that the matter was not “dormant” in the relevant sense. The notice of appeal particularises that the parties had in compliance with the order, attended mediation, but the mediation process was incomplete, not it seems through any recalcitrance of the parties but because of the mediator’s other commitments.
This, it was asserted in the notice of appeal, meant that the parties were acting to progress the proceedings and thus had “taken steps to advance the proceedings”.
Regrettably, her Honour’s reasons do not illuminate why, in her view, the partial settlement and the incomplete mediation process were not sufficient to progress the matter in the proceedings or, put another way, why in this case, those steps were insufficient to prevent the proceedings being dismissed.
Albeit the appeal was not argued, it is plain that the parties had complied with the order to attend mediation, and while the process may have taken some time, it was still in process.
It is too to be observed that the parties had, in the interim periods, resolved the parenting issues and had agreed as to a process of valuing the property. Her Honour was told that the parties anticipated that on completing the mediation, the parties expected the matter to resolve.
Thus her Honour erred in failing to consider that those actions demonstrated that the parties were indeed prosecuting the proceedings.
In these circumstances error is established sufficient to cause the appeal to be allowed has been established and to justify the order for costs certificates.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
11 March 2019.
Associate:
Date: 11 March 2019
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