Somerton and Wells and Anor

[2013] FCWA 59

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SOMERTON and WELLS & ANOR [2013] FCWA 59

CORAM: THACKRAY CJ

HEARD: 29 APRIL 2013

DELIVERED : 14 JUNE 2013

FILE NO/S: PTW 2339 of 2006

BETWEEN: DR SOMERTON

Applicant

AND

MRS WELLS
First Respondent

AND

MR WELLS
Second Respondent

Catchwords:

Stay – Appeal against orders on the basis that a judge of the Family Court of Western Australia lacked jurisdiction to hear an appeal against orders made in the Magistrates Court of Western Australia – The argument turns on the proper interpretation of transitional provisions in amending legislation – Appellant’s case arguable but respectable argument to the contrary – Even if appeal succeeds the underlying obligation of the husband to comply with the terms of consent orders will remain – Hardship to the wife if stay is granted – Application for stay dismissed.

Legislation:

Family Law Act 1975 (Cth), s 4, s 79A, s 94A, s 94AAA(3),
Jurisdiction of Courts (Family Law) Act 2006 (Cth)
Acts Interpretation Act 1901 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Mr Berry

First Respondent : Dr Dickey QC

Second Respondent : Self Represented Litigant

Solicitors:

Applicant: Clairs Keeley

First Respondent : Holden Barlow

Second Respondent : Self Represented Litigant

Case(s) referred to in judgment(s):

Chin and Brinkhoff [2008] WASCA 45

Eckett & Eckett (2010) FLC 93-431

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123

Goode and Goode (1982) FLC 91-249

Jacobsen and Jacobsen (dec) (1988) FLC 91-901

Kelly and Kelly (1981) FLC 91-007

Kennedy and Kennedy (1976) FLC 90-057

Re Shoesmith (1938) 2 KB 637

Streyls and Streyls (1988) FLC 91-961

Trahn & Long (No. 2) [2008] FamCAFC 194

Watson & Watson (2013) FLC 93-530

Y and M [2007] FCWA 89

Yule v Junek (1978) FLC 90-439

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1The applicant, [Dr Somerton], is the current wife of the second respondent, John [Mr Wells]. The first respondent, [Mrs Wells], is the former wife of Mr Wells.

2Dr Somerton has applied for a stay of orders pending her appeal against orders I made on 14 February 2013. Her application and appeal are opposed by Mrs Wells, but supported by Mr Wells.

3Mrs Well’s primary position is that the application for a stay should be dismissed; however, if the stay is granted, she seeks that it be on terms that Mr Wells meets the mortgage payments on her home which he was ordered to pay by orders made in 2006.

4The orders which Dr Somerton wants stayed were made by me as a judge of the Family Court of Western Australia sitting on appeal from orders made by an Acting Magistrate in the Magistrates Court of Western Australia. The Notice of Appeal against my orders contains only one ground, namely that I lacked jurisdiction to hear the appeal.

5Although it was not their position at the time of the hearing before me, Dr Somerton and Mr Wells contend that the appeal against the Acting Magistrate’s orders can only be heard by the Full Court of the Family Court of Australia (or by a single judge of the Family Court of Australia in the event the Chief Justice of that Court so determines pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).

6The merit of the appeal is dependent on the interpretation of transitional provisions relating to amendments made to the appeal process in 2006.

Background

7On 1 May 2006, Mr and Mrs Wells (who for ease of reference I will hereafter call “the husband” and “the wife”) jointly filed an application for consent orders in the Family Court of Western Australia. Those orders dealt with division of their property and payment of spousal maintenance by the husband to the wife.

8The property settlement orders dealt with a jointly owned property in [Suburb A] in which the wife was living. The orders involved the wife retaining a 78.5% interest in the property and the husband retaining the balance. The wife was given exclusive use of the property. The husband was required to indemnify her fully in relation to the mortgage. He was also ordered to pay significant spousal maintenance. On 4 May 2006, a registrar of the Family Court of Western Australia made orders as sought (“the 2006 consent orders”).

9On 12 November 2009, the wife filed a Form 2 Application in a Case in the Family Court of Western Australia seeking the enforcement of the husband’s obligations under the 2006 consent orders. Enforcement was required as the husband had defaulted on his obligation to meet the mortgage payments, as well as his obligation to pay maintenance.

10Prompted by the filing of this application, the husband filed a Form 1 Application on 24 February 2010 in which he sought leave to apply under s 79A of the Act to discharge the property settlement component of the 2006 consent orders. (Leave was not needed, but nothing turns on this). The husband also sought to discharge the spousal maintenance order.

11On 9 September 2010, the wife filed a Form 1A Response in which she sought that the husband’s Form 1 Application be dismissed.

12On 22 October 2010, the wife filed a further Form 2 Application in a Case in the Family Court of Western Australia for enforcement of the husband’s obligations under the 2006 consent orders. Part of the relief she sought was for the sale of two properties owned jointly by the husband and Dr Somerton.

13These proceedings, all instituted in the Family Court of Western Australia, ultimately came to be heard in the Magistrates Court of Western Australia. The way in which proceedings move between the Family Court of Western Australia and the Magistrates Court of Western Australia has been described in Eckett & Eckett (2010) FLC 93-431. As pointed out in that decision, no proceedings under the Act are instituted in the Magistrates Court of Western Australia in the Perth metropolitan area. Proceedings only come to the Magistrates Court by way of transfer from the Family Court of Western Australia.

14On 12 January 2011, consent orders were made by Acting Magistrate Kaeser. These involved the husband transferring to the wife his interest in the Suburb A property. They also required the wife to meet the mortgage payments until further order. In my judgment, I found that the orders of 12 January 2011 were interim orders designed to stave off a mortgagee sale of the property following the husband’s failure to comply with the 2006 consent orders.

15The matter came on for trial before Acting Magistrate Kaeser on 4 February 2011. On 8 February 2011, his Honour delivered his reasons for making the orders which became the subject of the appeal before me. Importantly for present purposes, his Honour expressly stated in his reasons that he was not dealing with the husband’s s 79A application. Instead, he said “my task is merely how to enforce the original orders”.

16His Honour then went on to make orders:

•requiring the husband to transfer to the wife his entire interest in the Suburb A property (an order which had already been made);

•requiring the wife to indemnify the husband in relation to the mortgage over the Suburb A property; and

•discharging the spousal maintenance order, together with all arrears.

The appeal against the orders of the Acting Magistrate

17On 16 March 2011, the wife filed an application seeking leave to appeal out of time against the orders made by Acting Magistrate Kaeser. Her application expressly sought that the appeal be listed before a judge of the Family Court of Western Australia.

18In his affidavit in support of the application, the wife’s solicitor deposed as follows:

8.Given the date of the Order to be enforced – May 2006 – and the statutory changes made in July 2006 the path of an appeal from a Magistrate of the Family Court of Western Australia [sic] required research to ensure the correct procedure was followed.

9. The majority of this research and work was undertaken by my Articled Clerk … who also liaised with the Appeals Registrar in relation to the same. Having determined the procedure for appeal we obtained the Applicant Wife’s instructions and advised her of the likely cost of the same…

…

16.As the Orders being enforced pre-date July 2006, as advised by the Appeals Registrar the appeal is by way of a hearing de novo, and no merits are required to be argued.

19The husband opposed the application for leave to appeal out of time, but did not dispute that the proper avenue of appeal was to a judge of the Family Court of Western Australia. The husband did not have legal representation at any stage during the process, although, on occasion, he did refer to having taken legal advice.

20The wife’s application for leave to appeal out of time came before Crisford J on 9 May 2011. Her Honour granted the application. Although there was no discussion of the point, Crisford J must have accepted that the correct avenue of appeal was to a judge of the Family Court of Western Australia, since she made an order that “the Applicant’s appeal and the Respondent’s 79A application be dealt with by a Judge at the same time”. (The s 79A application could only be heard by a judge of the Family Court of Western Australia).

21The appeal and the s 79A application were both listed before me in the Family Court of Western Australia for a two day hearing commencing on 21 November 2011.

22On 18 October 2011, the wife made application for Dr Somerton to be joined as a respondent. I made an order to that effect on 7 November 2011. Dr Somerton thereafter participated fully in the proceedings, although without the benefit of legal representation.

23At the hearing on 7 November 2011, I drew the husband’s attention to relevant authority concerning the interpretation of s 79A. On 11 November 2011, after taking legal advice, the husband wrote to the Court advising he was withdrawing his s 79A application.

24The substantive hearing commenced before me on 22 November 2011. Early in the proceedings, counsel for the wife referred to errors he said had been made by Acting Magistrate Kaeser, which prompted this exchange (Transcript 22 November 2011, page 9):

THACKRAY CJ: Well, again, it’s important that we be very clear about what is the nature of the hearing. Again, perhaps just for the transcript, because if this matter were to go any further, those reading the transcript would not know what was discussed on the previous occasion about this appeal.

Just to recap: the view was taken at the time that this appeal was commenced that the appellate path was that which prevailed at a time when appeals from magistrates in the Magistrates Court sitting in this building went to a single judge of the Family Court by way of hearing de novo, and that although the appeal was lodged well after the new appeal provisions had come into effect, which would have sent an appeal from the magistrate to the Family Court of Australia, it was agreed or decided by you, on the advice of the appeals registrar, that the old appeal provisions applied.

The matter came before another judge of the court, who was of the same view. The matter was therefore sent on for hearing, along with the husband’s section 79A application. Whilst the matter might not be beyond all doubt, there’s nobody here agitating for a different view than that.

DORNEY, MR: That is correct, your Honour.

THACKRAY CJ: That being the case, it’s unnecessary to consider whether the magistrate erred. It is unnecessary to have grounds of appeal. It’s as if the magistrate’s hearing never happened. The whole thing is starting all over again.

DORNEY, MR: Yes, your Honour.

THACKRAY CJ: What has changed recently is [Mr Well’s] advice that he’s not pursuing the section 79A application. So, the only matters [sic] before the court are [sic] your application to enforce.

DORNEY, MR: Yes, your Honour.

25Later in the hearing, the husband noted that while he was not pursuing the s 79A application, he still wanted to pursue his application for discharge of the maintenance order.

26For reasons that are not material, the hearing before me on 22 November 2011 was aborted before any evidence was taken.

27On 14 March 2012, the wife filed an Amended Form 1A seeking orders which all purported to be by way of enforcement of the 2006 consent orders.

28The matter eventually came back on for hearing before me on 15 August 2012. The only issues were the enforcement of the 2006 consent orders and the application for discharge of the maintenance order. The matter proceeded by way of hearing de novo.

29Following the completion of the hearing and after receiving written submissions, I published my reasons on 14 December 2012. In paragraph 45 of the reasons I said:

45.I have been informed that it has at all times been accepted by the parties that the appropriate avenue of appeal against the orders of Kaeser AM was that prevailing at the time the consent orders were made in 2006, namely by way of appeal to a single judge of the Family Court of Western Australia, with such appeal proceeding by way of hearing de novo. The validity of that proposition is not a matter on which I have been asked to make any determination, it being sufficient to note there has been no challenge to orders predicated on the assumption that the appeal should proceed in this fashion.

30In paragraph 51 of my reasons I observed that, as the matter had proceeded by way of hearing de novo, it was unnecessary to identify error on the part of the Magistrate before I could interfere with his orders. I nevertheless found that his Honour had fallen into error for the reasons set out in paragraphs 52 and 53 of my reasons.

31In summary, I found that:

•it was not open to the Magistrate to require the wife to indemnify the husband in relation to the mortgage as the order for the husband to indemnify her under the mortgage was an integral part of the property settlement and his Honour could not vary it;

•the husband’s application for discharge of the maintenance order appeared not to be have been properly before the Magistrate. The only issue before him was the application for enforcement of the husband’s obligations under the 2006 consent orders.

32I was on leave at the time the reasons were published. The matter came back before me on 14 February 2013, at which time I made my orders. These, inter alia, involved:

(a)the husband and Dr Somerton selling two jointly owned properties in order to provide a fund to satisfy arrears pursuant to the order for the husband to pay the mortgage payments on the Suburb A property;

(b)only the husband’s share of the proceeds of the sale of the properties being used to meet the mortgage arrears (the issue concerning Dr Somerton’s share being used to meet any shortfall was put off until such time as it is ascertained if there is a shortfall);

(c)the husband continuing to comply with his obligations pursuant to the property settlement part of the 2006 consent orders, including meeting the mortgage payments on the Suburb A property;

(d)discharging the substantial arrears of maintenance; and

(e)suspending the operation of the maintenance order pending the sale of the properties and further argument.

The appeal against my orders

33On 14 March 2013, Dr Somerton filed an appeal against my orders of 14 February 2013. As previously observed, the Notice of Appeal contained only one ground, namely that the Family Court of Western Australia did not have jurisdiction to hear the appeal against the orders of Acting Magistrate Kaeser.

34Dr Somerton’s Notice of Appeal seeks that all of my orders (including those not involving her) be set aside and that the wife’s appeal against the orders of Acting Magistrate Kaeser be listed before the Family Court of Australia.

35The husband is named as a second respondent to the appeal, but supports the appeal. The wife’s position is that even if the Full Court considers there is merit in the one ground of appeal, the Full Court should decline to allow the appeal, which would leave the orders in place, even though made outside jurisdiction.

Principles applicable to applications for a stay

36The power to grant a stay pending an appeal is found in rule 22.11(2) of the Family Law Rules 2004. The following principles relating to the exercise of the power are well established: see Trahn & Long (No. 2) [2008] FamCAFC 194 at [38]:

•stays are not ordered as a matter of right;

•a successful party should not be deprived of the fruits of the litigation unless the unsuccessful party demonstrates there are appropriate circumstances to justify it;

•it is not necessary for the applicant to demonstrate special or exceptional circumstances.

37In dealing with an application for a stay, a court will usually consider:

•whether refusing the stay will render a successful appeal nugatory or will make it impossible or impracticable to restore the position;

•whether there has been delay in applying for the stay;

•the time it will take for the appeal to be heard;

•the bona fides of the applicant;

•any hardship that would result from granting or refusing the stay;

•the merits of the appeal.

38Ultimately, however, the discretion is a broad one. As Fogarty J said in Kelly and Kelly (1981) FLC 91-007 at 76,105:

It is, I think, unhelpful to attempt to circumscribe the exercise of that discretion by particular phrases or by reference to particular categories. Each case must be looked at in the light of its own circumstances against the background of that general approach, and a decision made in each case as to whether a stay is proper in the light of the words of the regulations considered against the background of the decided cases. That the discretion should be wide and untrammelled by reference to particular categories is particularly important under the Family Law Act.

Uncontroversial factors

39The following matters can be considered to be uncontroversial:

•Dr Somerton’s appeal was filed in time;

•The application for a stay was made promptly;

•The appeal could be heard in the October 2013 sittings in Perth and there has been some discussion about the possibility of the appeal being expedited, given the poor health of the wife;

•The refusal to grant a stay could render at least portion of a successful appeal nugatory as the properties owned by the husband and Dr Somerton (one of which is their home) could be sold before the appeal is determined.

The bona fides of the applicant

40There is some basis for doubting the bona fides of the applicant, given that she left her challenge to the Court’s jurisdiction until after she has received an adverse ruling. Further reason to doubt her bona fides arises from the fact that she seeks to set aside all of the orders, without pointing to any error of law or fact in my substantive decision.

41However, I recognise the applicant was not represented at the time she failed to object to the Court’s jurisdiction, whereas she is now represented. A self-represented litigant would be justified in assuming that the Appeals Registrar and others more qualified than her would know the correct pathway for an appeal.

42I also accept that it may be thought unnecessary for the applicant to point to error in my judgment if I lacked jurisdiction to deliver judgment at all – although the wisdom of that approach may be doubted if the wife is correct in asserting that the Full Court has the option of dismissing the appeal, even if I lacked jurisdiction. When this issue was aired during argument, counsel for the applicant advised that the Notice of Appeal could be amended, which is true.

43Ultimately, I accept that the appeal is bona fide.

The merits of the appeal

44In discussing the merit of the solitary ground of appeal, all that is strictly required is “some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case”: Trahn & Long (No 2) (supra at [38]). Since I am on record in the substantive proceedings as saying the matter “might not be beyond all doubt”, it would be difficult now to say that the point being agitated is not arguable. This is especially so in circumstances where senior counsel for the wife accepts that the proposition is arguable.

45It is, however, most unfortunate that the parties will be put to further delay, expense and inconvenience as a result of an arcane dispute about the meaning of a transitional provision, given that Dr Somerton and the husband have not, thus far at least, identified any substantive error in the decision I made.

46In this context, I should record that I hold three judicial commissions. One as a judge of the Family Court of Western Australia; another as a justice of the Family Court of Australia; and the third as the sole Western Australian member of the Appeal Division of the Family Court of Australia. Had the appeal progressed down the pathway now said to be the correct one, the appeal would still, almost certainly, have ended up being heard by me pursuant to a delegation from the Chief Justice.

47Knowing all this, I share the frustration evident in the following remarks made by Mackinnon LJ in Re Shoesmith (1938) 2 KB 637 at 650 when faced with a similar argument:

Conceiving, as I do, that the purpose of this, or any other Court, is to do justice between the parties who appear before it, it does seem to me to be monstrous that our time has been taken up in trying to decide whether, on the obscure words of an Act of Parliament, parties have rightly come to this Court or ought to have gone to another room down the corridor in which three other judges are, or may be, sitting as a Divisional Court. This obscure problem puts the parties and their advisers in the extremely difficult and potentially expensive position of having to know to which Court they ought to go. In this case the present appellants came here and it is objected that they ought to have gone there. If they had gone there, so nice is the question involved that I think it highly likely that there they would have been met with the objection that they ought to have come here.

48With a view to saving the parties further trouble and expense, I have taken time since hearing argument to consider the relevant legislation and authorities in the hope that research and reflection may reveal a clear answer to the issue.

The relevant legislation

49In Eckett & Eckett (supra), the Full Court of the Family Court of Australia described the way in which federal family law jurisdiction is exercised in the metropolitan area of Perth. This is achieved by distributing the work between the Judges of the Family Court of Western Australia and the Family Law Magistrates of the Magistrates Court of Western Australia.

50The Full Court also traced the history of changes to the appellate process relating to decisions of Family Law Magistrates in Western Australia. In summary, until amendments were made to the legislation in 2006, an appeal from orders made by a magistrate in the exercise of federal jurisdiction proceeded by way of a hearing de novo before a judge of the Family Court of Western Australia, and after the amendments were made such appeals are heard by the Full Court of the Family Court of Australia, or by a single Judge of that court if the Chief Justice so directs. This change in the appeal process was brought about by the Jurisdiction of Courts (Family Law) Act 2006 (Cth) (“the Amending Act”).

51It will be recalled that the property settlement and maintenance proceedings between the husband and the wife were commenced by the filing of their application for consent orders on 1 May 2006 – i.e. two months before the commencement of the Amending Act on 1 July 2006. The question that will need to be determined on the hearing of the appeal is whether the pre 1 July 2006 appeal procedures applied to the orders of the Acting Magistrate because the original property settlement and maintenance proceedings were commenced before the amendments came into operation.

52The answer to this question lies in the interpretation of the “application” provisions in the Amending Act. As the Full Court explained in Eckett & Eckett, when amendments are made to legislation, “application” provisions are used to clarify how the “new” law will apply and how the “old” law will cease to apply. This may involve providing for the “old” law to continue to apply for limited purposes despite its repeal.

53The critical “application” provision is item 27 of Schedule 1 to the Amending Act, which provides (emphasis added):

(1)The amendments made by items 3, 5, 8, 10 to 18 and 25 apply to proceedings instituted before or after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

(2)The amendments made by items 1, 2, 4, 6, 7, 9, 19, 20 to 24 and 26 apply to proceedings instituted after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

54It was items 20 and 26 that brought about the amendments relating to appeals from Family Law Magistrates. The effect of item 27(2) is that those amendments apply to orders made in “proceedings instituted after the commencement of this Part”. Accordingly, I did not have jurisdiction to hear the appeal if the orders made by the Acting Magistrate were made in “proceedings” properly characterised as having been “instituted” after 1 July 2006.

55By operation of s 11B of the Acts Interpretation Act1901 (Cth), the meaning of the word “proceedings” in item 27 is the same as the meaning given by s 4 of the Act, namely:

a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.

56There is no definition of the other key word in item 27, namely “instituted”. Nor is there any definition of the expressions “cross-proceedings”, “an incidental proceeding” or “in connexion with a proceeding” which appear in s 4(1).

Authority directly relevant to the interpretation of item 27(2)

57My research suggests there has only been one case where the interpretation of item 27(2) has been the subject of a decision in the Family Court of Western Australia.

58In Y and M [2007] FCWA 89, Penny J had before her an appeal from orders made by a Family Law Magistrate. When the issue arose as to whether the appeal could be heard by a judge of the Family Court of Western Australia, her Honour correctly observed that the answer depended upon the interpretation of item 27(2) of the Amending Act.

59Penny J observed, at [15], that “the father’s originating application was filed in 2005, prior to the introduction of the amendments, however; the application before the Court which is subject of the father’s appeal was filed in 2007, after the introduction of the amendments”. Her Honour noted that when the appeal was lodged, the Appeals Registrar had determined that the appeal should proceed by way of a hearing de novo before a judge of the Family Court of Western Australia.

60Her Honour’s reasons indicate that the proceedings filed in 2005 were for parenting orders and that they were “still on foot” at the time the matter came before her, albeit she noted “little has occurred in the way of their finalisation”. The interim application filed in 2007, which led to the order that was the subject of the appeal, was the mother’s application for suspension of contact orders so that she could take the child overseas.

61In discussing the appropriate avenue of appeal, her Honour referred to the definition of “proceedings” in s 4(1) of the Act. Her Honour, also observed, at [17], that:

the terms “instituted” or “institution” are not defined in the Act. I think that this term is the key word in interpreting upon which law the appeal lies.

62Her Honour then continued (original emphasis):

18The father, in his written submissions, refers to the Full Court decision in Goode and Goode (1982) FLC 91-249 which deals with the institution of proceedings in relation to s 44(3) of the Act. The Full Court said:

“…once the husband had made his application under sec. 78 there were between the parties properly instituted proceedings falling within para. (ca). It was then open to either party at any time while these proceedings were pending to file further applications or cross-applications or to amend pleadings to seek orders with respect to the property of the parties under sec. 78 or 79 without seeking leave under sec. 44(3). Such further applications or amendments should not, in our view, be regarded as the institutions of proceedings under para. (ca) for the purposes of sec. 44(3)” [emphasis added]

19Further, s 25 [sic] of the Jurisdiction of Courts (Family Law) Act, which amends s 94A of the Act, differs in its use of the word “proceedings”. It provides:

“(5) If, in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, being proceedings in which a decree or decision to which subsection 94AAA(1A) applies could be made, a question of law arises which:..”

20It could be suggested from the differing use of the term proceedings, the terms “proceedings instituted” Parliament was intending to refer to the substantive proceedings [sic].

21Based on the wording of s 27(2) [sic] of the amending Act, and the date the original application was filed, I am of the opinion that the institution of these proceedings occurred when the father filed his application in February 2005. Therefore, the matter should be heard as a de novo before a single judge of the Family Court of Western Australia.

63It will be seen immediately that Y and M can be distinguished from the present matter, since the orders under appeal there were made while the substantive application was “still on foot”, whereas here the substantive application had been finalised by the making of the 2006 consent orders.

64Penny J’s judgment in Y and M was the subject of passing comment by the Court of Appeal of the Supreme Court of Western Australia when it was dealing with an appeal from a Family Law Magistrate in Chin and Brinkhoff [2008] WASCA 45.

65The full procedural history in Chin and Brinkhoff does not clearly emerge from the principal judgment given by Pullin JA. It seems, however, that the orders that were the subject of the appeal were, inter alia, by way of enforcement of property settlement orders that had been made prior to the commencement of the Amending Act. The appellant submitted that the Supreme Court had jurisdiction to entertain the appeal by reason of s 96(1) of the Act. However, Pullin JA pointed out that s 96(1AA) of the Act states that s 96 does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate. His Honour noted that s 96(1AA) had been introduced by the Amending Act. His Honour further recorded that the relevant transitional provision provided that the amendment applied to proceedings instituted “after the commencement” of the Amending Act.

66Pullin JA then observed that Penny J had held in Y and M that the expression “proceedings instituted” was a reference to “the substantive proceedings”. His Honour went on to say at [3]:

It is arguable that the substantive proceedings in this case were proceedings for property settlement which were instituted before commencement of the [Amending Act]. If Y and M is correctly decided, and if the substantive proceedings in this case were proceedings for property settlement which were instituted before commencement of the [Amending Act] then s 96(1AA) does not apply to this appeal.

67His Honour did not need to determine the point because he considered that, for other reasons, the Court of Appeal did not have jurisdiction to hear the appeal. Buss JA concurred in his Honour’s reasons, subject to a reservation which is not material.

68Although the remarks made in Chin and Brinkhoff are clearly obiter, it is of interest that Pullin JA accepted that it is arguable that enforcement proceedings are part of the substantive proceedings and not a separate set of proceedings.

Other potentially relevant authorities

69Evatt CJ in her ex tempore decision in the early Full Court case of Kennedy and Kennedy (1976) FLC 90-057, referred to the definition of “proceedings” in s 4(1), and then said at 75,240:

The term matrimonial cause is a key term in the Act as it defines the jurisdiction of various courts. The definition of proceedings in my view makes it clear that matrimonial causes include not only initiating proceedings but also cross-proceedings and incidental proceedings for any of the kinds of relief set out in the definition of matrimonial cause. Whenever the term “proceedings” is used in the Act the court must as necessary substitute cross-proceedings or incidental proceedings to understand the full extent of the meaning of the Act and the jurisdiction conferred.

70The other members of the court agreed with the reasons given by the Chief Justice.

71The High Court also considered the meaning of “proceedings” in the early years of the operation of the Act. In Yule v Junek (1978) FLC 90-439, Mason J (as he then was) discussed the meaning of “proceedings” in the context of the definition of “matrimonial cause” in s 4(1). One of the definitions was “proceedings between the parties of the marriage for a decree of … dissolution of marriage”. Mason J observed that a claim for damages for adultery could not fall within that definition of “matrimonial cause” because the proceedings for damages were not “between the parties of the marriage”.

72His Honour continued at 77,223:

In some context it would be correct to say that the petition [for dissolution of marriage] itself is a proceeding. However the word “proceedings” appears here to be employed in a more precise and limited sense so as to denote that part of the overall proceedings which is directed to the obtaining of relief of a designated kind. Thus the claim to relief by damages, although it is in a petition which seeks the dissolution of marriage, cannot be described with accuracy as “proceedings between the parties to a marriage for a decree of dissolution”.

73It will be seen immediately that this more “precise and limited” use of the word “proceedings” referred to by Mason J arises from the descriptive words that followed it in the definition of “matrimonial cause” in s 4(1), rather than by reference to the statutory definition of “proceedings”. His Honour might be seen as implying that, were it not for the words that followed the word “proceedings” in the definition of “matrimonial cause”, it would not be appropriate to confine its meaning to an application that “is directed to the obtaining of relief of a designated kind”.

74In Jacobsen and Jacobsen (dec) (1988) FLC 91-901, Mullane J was required to consider s 79(8), which then provided that:

Where, before proceedings with respect to the property of the parties … are completed either party to the proceedings dies:

(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party.

75His Honour dealt with the meaning of “proceedings” in these terms at 76,554:

The question which arises is what are the “proceedings” in this matter to which s 79(8) refers? The answer is “proceedings between parties with respect to the property of the parties to the marriage – in terms of para (ca) of the definition of matrimonial cause in s 4(1).

It is a misconception to consider “proceedings” as synonymous with “application” or to limit the meaning of “proceedings” to the ambit of the particular applications or cross-applications filed. Strictly, what is before the Court are “proceedings with respect to the property of the parties” not just a particular application … It is not the pleadings which define the ambit of the proceedings, but the legislation.

76Nygh J faced the same issue as a member of the Full Court in Streyls and Streyls (1988) FLC 91-961 at 76,963. His Honour posed the question in these terms:

Is the word proceedings to be interpreted as constituted by an application or a cross-application, as [the trial Judge] clearly understood it, or is it be understood as referring to the power of the Court, once an application has been instituted under sec. 79, to adjust the property rights of the parties either way…

77After considering the definition of “proceedings” in s 4(1), and after referring to Yule v Junek, Nygh J agreed with the view expressed by Mullane J in Jacobsen and Jacobsen (dec) that “proceedings” cannot be interpreted as synonymous with “application”. He went on to say that “the types of proceeding which can be included in an application are set out in the definition of “matrimonial cause” in sec. 4(1) of the Act”. Later, in summarising his views, Nygh J said at 76,964:

an application is the machinery whereby a proceeding under sec. 79 is instituted. … The word “proceedings” in sec. 79(8) must therefore be taken to refer to the process of litigation which will result in an adjustment of the interests of each of the parties in relation to the whole of their property…

78Graham J, in his dissenting judgment in Streyls and Streyls, disagreed with Nygh and Mullane JJ. His Honour took the view, at 76,968, that “proceedings before a court at a particular time are proceedings limited to the ambit of the particular application or applications that have then been filed”; however, a little later in his reasons, after considering the definition of “proceedings” in s 4(1), Graham J expressed the view that “clearly proceedings has a wider meaning than application”. Graham J’s approach to this part of the legislation has not found favour in subsequent cases.

79In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123, the Full Court dealt with a “transitional” provision which provided that certain amendments made to the Act relating to claims for costs by a child representative applied only to “proceedings initiated in the Court after the commencement of [the relevant item in the amending Act]”. The substantive proceedings in which the child representative had been appointed were filed before the commencement of the amendments, but those proceedings were then settled. The child representative then brought a separate application for costs, but this application was made after the commencement of the amendments. The trial Judge proceeded to determine the application for costs on the basis that the amendments applied. The Full Court, after referring to the definition of “proceedings” in s 4(1), held that the trial Judge had erred in so doing. Although not expressed in quite this way in the reasons, it is clear the Full Court took the view that the application for costs did not constitute separate “proceedings” for the purposes of the transitional provision, but rather was part and parcel of the substantive parenting proceedings.

80I have been unable to locate any other decisions which might assist in resolving this issue, save for the recent decision of the Full Court in Watson & Watson (2013) FLC 93-530 where the court discussed principles associated with the rule that a party in contempt may not be heard in “the same proceeding” or “the same cause”. The usefulness of this case is highly doubtful given the issue arose in a very different context and did not involve interpretation of the word “proceedings” as it appears in the legislation. However, the Full Court (Strickland and Kent JJ, with Murphy J concurring) set out a number of principles emerging from the authorities relating to the proposition that a party in contempt may not be heard in the proceedings. One of the principles was expressed as follows (at [36]):

(e)The question of whether the application is in the same proceeding or in the same cause is crucial and is determined by reference to the structure and content of definition of “matrimonial cause” in the Act, the relevant part of the Act and the Family Law Rules 2004 (Cth) that apply and, ultimately whether the proceedings may be identified as distinct because of the nature of the relief claimed in them is respectively determinative.

81As I have said, the value for present purposes of the decision in Watson & Watson has to be doubted, but it might nevertheless be thought, after reflection on the authorities mentioned, that the word “proceedings” can be best understood by an appreciation of the particular “matrimonial cause” relied upon to found the Court’s jurisdiction. Once it is accepted that “proceedings” is not synonymous with “application”, how else could a court define “proceedings” without resort to some yardstick that does not appear in the legislation? The potential for the “matrimonial cause” definition to flesh out the meaning of “proceedings” can be appreciated when it is remembered that each and every one of the descriptions of the many “matrimonial causes” commences by use of the word “proceedings”.

82One potential flaw in attempting to have the various definitions of “matrimonial causes” provide meaning to the word “proceedings” is that proceedings relating to children are not defined as a matrimonial cause. However, they originally were. And in this context it is worth noting that the definition of “proceedings” as it now appears in the Act is the same definition as when the legislation was first enacted, when all proceedings were a matrimonial cause.

83This potential flaw in the argument might, however, be seen as providing some respite from the consequences of holding that all applications relying upon a particular matrimonial cause are to be seen as one set of “proceedings”, given that it is commonplace for fresh applications to be made about children many years after an earlier application has been resolved. Although not unheard of, there are statutory and practical impediments associated with instituting new proceedings relating to financial matters many years after the substantive proceedings have been resolved.

Discussion of the merits

84The issue for determination by the Full Court will be whether an application to enforce property settlement and maintenance orders and an application to discharge a maintenance order are themselves “proceedings” within the meaning of item 27(2) in the Amending Act or whether they form part of the “proceedings” in which the property settlement and maintenance orders were made.

85Bearing in mind the definition of “proceedings” in s 4(1), it seems two questions would need to be formulated:

1.Are proceedings for enforcement of a property settlement and maintenance order “an incidental proceeding in the course of or in connexion with” the proceeding in which the orders were made?

2.Are proceedings for discharge of a maintenance order “an incidental proceeding in the course of or in connexion with” the proceeding in which the order was made?

86Hopefully, the answer to the two questions will be the same, since if they are not it would mean there could be two different appeal paths for issues that are commonly dealt with at the same hearing. Such a result would be unfortunate. However, if both are not properly characterized as being “an incidental proceeding in the course of or in connexion with” the earlier substantive proceedings, they would constitute separate “proceedings”. If the enforcement application was made before the commencement of the Amending Act and the discharge application was made after the commencement of the Amending Act, then there would be two separate appeal paths. (Although it could be suggested that the discharge application would be characterized as an “incidental proceeding in the course of or in connexion with” the enforcement application).

87Putting this to one side, the answers to the two questions will, it seems, turn on the meaning of the words “incidental” and “connexion” appearing in s 4(1). In the absence of a statutory definition of those words, one needs to turn to dictionaries.

88The Oxford Dictionary relevantly defines “incidental” as meaning, “happening as a minor accompaniment to something else” or “occurring by chance in connection with something else”.

89The Merriam-Webster Dictionary defines “incidental” as “being likely to ensue as a chance or minor consequence” or alternatively “occurring nearly by chance or without intention or calculation”.

90The Macquarie Dictionary defines “incidental” as “happening or likely to happen in fortuitous or subordinate conjunction with something else” or “incurred casually and in addition to the regular or main amount”.

91The word “connexion” is a variant of the word “connection”, which according to the Oxford Dictionary means “a relationship in which a person or thing is linked or associated with something else”.

92The Merriam-Webster Dictionary gives the meaning of “connection” as “causal or logical relation or sequence”.

93Reference to these definitions would suggest that a particular application forms part of the same “proceedings” in which another application is filed if the two applications are linked or associated or have some logical relation. One application does not have to arise “in the course of” the other application since, although the definition does refer to the possibility of such a conjunction, it goes further by catching proceedings that are merely “in connexion” with other proceedings.

94As I previously suggested, consideration of the meaning of “proceedings” is potentially assisted by reference to the definition of “matrimonial cause” which defines a variety of “proceedings” between parties as constituting a “matrimonial cause”.

95The application for enforcement of the property settlement and maintenance orders and the application for discharge of the maintenance order fall within the definitions of two matrimonial causes. One is that contained in subparagraph (c) of the definition of matrimonial cause, namely “proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage” and the other is that contained in subparagraph (ca) of the definition, namely proceedings between the parties to a marriage “with respect to the property of the parties to the marriage”. These are the same matrimonial causes that were invoked when the 2006 consent orders were made.

96It would be wrong, in my view, to characterise the wife’s enforcement and the husband’s discharge application as falling within another of the definitions of “matrimonial cause”, namely that in subparagraph (f) of the definition, which brings within the definition “any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs” (my emphasis).

97The use of the word “other”, which I have emphasised in the preceding paragraph, indicates that this part of the definition catches only proceedings that are not covered by the earlier parts of the definition. The applications for enforcement and discharge are, however, clearly caught by the earlier definitions dealing with property and maintenance. The definition in subparagraph (f) catches proceedings that are not between parties to a marriage, since all the other matrimonial causes must be between parties to a marriage (save for proceedings with respect to the enforcement of a maintenance decree made under the law of an overseas jurisdiction).

98In my view, it is arguable that the word “proceedings” for the purposes of item 27(2) encompasses everything done in litigation relating to a specific matrimonial cause from the time the jurisdiction of the Court is first invoked until the time judgment is enforced or fully performed. One benefit of such an interpretation is that parties to the litigation know that all decisions made in the course of the controversy will be subject to the same process of appellate review. This avoids what I consider to be the possibility that there could be on foot at the same time two different appeals in different venues relating to what is essentially the same subject matter.

99The possibility of simultaneous appeals in different venues is more than a theoretical possibility. If the appellant’s argument is right, a situation could arise where the appeal process against a final property settlement order made on an application filed before the amendments came into effect would be different to the appeal process for orders by way of enforcement of (or refusal to enforce) the final property settlement order made on an application filed after the amendments came into effect, even though both appeals may be pending at the same time. Are parties in those circumstances to be put to the inconvenience and expense of prosecuting appeals in two different courts, one of which proceeds by way of hearing de novo and the other does not?

100I accept, however, that the interpretation being advanced by Dr Somerton is also arguable, and the wife does not contend otherwise. Indeed, senior counsel for the wife was inclined to consider that the view advocated by Dr Somerton is the stronger one. In my view, however, the discussion of legislation and authorities above suggests that the answer may not be clear cut. The Full Court will determine the matter authoritatively, no doubt with the benefit of more fully developed argument than was necessary at the hearing before me.

101I turn next to the proposition of senior counsel for the wife to the effect that the Full Court will decline to interfere with my orders even if made outside jurisdiction, on the basis that the law does not allow a litigant to “approbate and reprobate”.

102I would formulate the proposition advanced by senior counsel for the wife, with some glosses of my own, in these terms:

•the parties all consented to the process;

•whilst jurisdiction cannot be conferred by consent, the parties have had the benefit of an appeal hearing;

•the appeal would likely to have been heard by a single Judge, whichever pathway was the correct one;

•the single Judge in all probability would have been me;

•there is no ground of appeal identifying any error, save for the issue relating to jurisdiction; and

•the only relief Dr Somerton seeks is to have the matter remitted for a rehearing, but the parties have already had the benefit of a rehearing and no error has been identified in the outcome of that rehearing.

103There may be many flaws in this argument, but one potential flaw is that the wife was given a “second bite of the cherry” by being allowed to challenge the Acting Magistrate’s orders, without needing to identify error. However, as I pointed out in my substantive judgment, there was one clear error made by his Honour, in that he impermissibly varied a property settlement order. Thus, even if the appeal had not proceeded by way of hearing de novo, the appeal would inevitably have been allowed and the matter would then have required the full rehearing that I gave it as part of the appeal process.

104Although it would normally be automatic for an appellate tribunal to quash by one means or another orders made outside jurisdiction, this is one case where it might be thought the appellate tribunal would be tempted to follow the approach urged by senior counsel for the wife – so long as the law permits such an outcome. However, an issue would then arise concerning the status and enforceability of the orders. While an order of a superior court made outside jurisdiction remains binding until set aside (see the authorities mentioned in Wade-Ferrell and Wade-Ferrell (2001) FLC 93-069 at [31]), the Family Court of Western Australia is not a “superior court” (see s 9(2) of the Family Court Act 1997 (WA) which describes the Court as a “court of record”).

105If the Full Court was anxious to achieve the result urged by senior counsel for the wife, it might be more likely that the Full Court would allow Dr Somerton’s appeal, then call on for hearing the wife’s original appeal, allow that appeal (if the Full Court agreed that the appeal must succeed) and then re-exercise the discretion of the Acting Magistrate on the basis of the record. It might be thought appropriate, for the purposes of the re-exercise, to receive as further evidence the record of the proceedings before me. The possibility of this admittedly unorthodox course being available may require appropriate directions being sought from the Full Court prior to the hearing of the appeal to ensure that both appeals and all necessary materials are before the bench that determines the matter.

Conclusion

106At the end of the day, the following important matters are clear:

•The husband was required to meet the mortgage payments on the Suburb A property as part of the property settlement order;

•The s 79A application having been abandoned, no court can legitimately vary that order. (The order made on 12 January 2011 varying that order was an interim order made in extremis as a result of the husband’s default);

•Whatever success the husband and Dr Somerton may achieve in prosecuting this appeal, the underlying obligation to pay the mortgage payments will remain;

•No basis has been demonstrated for the Court to decline to enforce the order;

•The orders I have made are by way of enforcement of the order;

•The orders do not require Dr Somerton to meet any portion of the husband’s obligation.

107Given all of these matters, and given that there is a respectable argument to say that I did in fact have jurisdiction, I intend to exercise my discretion by refusing the stay.

108In coming to that decision I have taken into account the hardship that will be occasioned by Dr Somerton as a result of my refusal to grant the stay and the hardship that would be caused to the wife had I granted the stay.

109The hardship to Dr Somerton is that she may have her property sold, but in the long run that is what I consider is going to happen anyway, given that her husband has not shown any basis for being relieved of his obligation to meet the arrears of mortgage payments.

110The hardship to the wife is described in the two affidavits sworn 19 April 2013. She is receiving treatment for lung cancer and emphysema. Due to a deterioration in his financial circumstances, her son-in-law is no longer able to pay the mortgage payments on her home. The bank has issued a demand for payment of arrears and the wife is at risk of losing her home.

111I have given consideration to granting a stay on terms that the husband meets the mortgage payments. But he says he cannot afford to make them and this would not, in any event, deal with the question of the arrears. If, however, he was to commence making the mortgage payments now, that may be a matter that would be taken into account in the event the wife commenced proceedings to enforce my orders.

Order and costs

112For these reasons I propose to dismiss the application for a stay.

113The Family Law Rules provide for the process to be followed in the event any order for costs is sought in relation to the application for a stay.

I certify that the preceding [113] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate