Somerton & Wells (deceased) - [2015] FamCAFC 12

FAMILY COURT OF AUSTRALIA

SOMERTON & WELLS (DECEASED) AND ANOR

[2015] FamCAFC 12

FAMILY LAW – APPEAL – LEAVE TO APPEAL – ENFORCEMENT – JURISDICTION – Where on appeal the primary judge discharged orders for enforcement made by an acting Family Law Magistrate of Western Australia and made orders requiring the sale of two properties and discharging arrears of spouse maintenance – Where the appellant asserts that the primary judge lacked jurisdiction to hear the appeal from the acting Family Law Magistrate – Where the appellant asserts that pursuant to the transitional provision in item 27 of Schedule 1 of the Jurisdiction of Courts (Family Law) Act 2006 (Cth) which amended ss 94AAA and 96 of the Family Law Act 1975 (Cth), the amendments to the appeal process apply in this case – Where the appeal raises important questions and leave to appeal should be granted – Where the primary judge addressed the question of the interpretation of the transitional provision in the context of determining an application for a stay – Where the Full Court held that the primary judge’s interpretation was accurate and the transitional provision does not apply the amendments in this case – Where the word “proceedings” as appears in the transitional provision encompasses everything done in litigation relating to a specific matrimonial cause from the time jurisdiction of the Court is invoked until the time judgment is enforced or fully performed – Where there is no merit in this ground of appeal – Where the primary judge did not err in ordering the appellant to sell the two properties owned jointly by the appellant and the second respondent pursuant to s 90AF of the Family Law Act 1975 (Cth) – Where the primary judge did not err in restraining the appellant until further order from disposing of her share of the proceeds of sale of either of the said properties – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the appellant seeks an extension of time to file a “Re-Amended” Notice of appeal – Where the application is opposed – Where there is no explanation for the failure to file a Notice of Appeal within the time period provided in the Family Law Rules 2004 (Cth) – Where there is no material supporting the further proposed grounds of appeal – Where the merits of the further proposed grounds of appeal cannot be assessed or considered – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the first respondent sought an order for costs – Where the appellant opposed an order for costs – Where the question on appeal was complex – No order for costs made.

Family Law Act 1975 (Cth) – ss 4(1), 90AF, 93AAA, 93A(1) and 96
Jurisdiction of Courts (Family Law) Act 2006 (Cth) - s 2

Family Law Rules 2004 (Cth) - r 22.03

A.C. v V.C. (2013) FLC 93-540
Chin & Brinkhoff [2008] WASCA 45
Finlayson v Finlayson and Gillam (2002) FLC 93-121
Fitzgerald (as Child Representative for A) (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Gronow v Gronow (1979) 144 CLR 513
Jacobsen & Jacobsen (Dec) (1988) FLC 91-901
Kennedy & Kennedy (1976) FLC 90-057
Ridley v Whipp (1916) 22 CLR 381
Streyls & Streyls (1988) FLC 91-961
Wade-Ferrell & Wade-Ferrell (2001) FLC 93-069
Water Board v Moustakas (1988) 180 CLR 491
Y & M [2007] FCWA 89
Yule v Junek (1978) 139 CLR 1

APPELLANT:

Ms Somerton

FIRST RESPONDENT:	Ms M as Legal Personal Representative of Ms Wells (deceased)
SECOND RESPONDENT:	Mr Wells

FILE NUMBER:

PTW

2339

2006

APPEAL NUMBER:

2013

DATE DELIVERED:

12 February 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Strickland & Ainslie-Wallace JJ

HEARING DATE:

4 April 2014

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:	14 December 2012
DATE OF LOWER COURT ORDERS:	14 February 2013

LOWER COURT MNC:

[2012] FCWA 121

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE FIRST RESPONDENT:

Dr Dickey QC

SOLICITOR FOR THE FIRST RESPONDENT:

Holden Barlow

SECOND RESPONDENT:

In Person

Orders

The application in an appeal filed on 16 October 2013 be dismissed.
Leave to appeal the orders made on 14 February 2013 be granted.
The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Somerton & Wells and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 7 of 2013
File Number: PTW 2339 of 2006

Ms Somerton

Appellant

And

Ms M as Legal Personal Representative of
Ms Wells (deceased)

First Respondent

And

Mr Wells
Second Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 6 June 2013 Ms Somerton (“the appellant”) sought leave to appeal, and if leave is granted, to appeal against all orders made by Chief Judge Thackray on 14 February 2013. The appeal is opposed by Ms M as Legal Personal Representative of Ms Wells (deceased) (“the first respondent”), but it is supported by the appellant’s current husband, Mr Wells (“the second respondent”). We observe that although the second respondent appeared at the hearing of the appeal and made brief oral submissions, he did not file a written summary of argument.
By Application in an Appeal filed on 16 October 2013 the appellant seeks an extension of time to file a “Re-Amended” Notice of Appeal sent to the court on 1 October 2013. By order of Chief Judge Thackray on 21 October 2013 that application was adjourned for hearing by this Full Court. In the “Re-Amended” Notice of Appeal the appellant seeks to challenge all orders made by Chief Judge Thackray on 14 June 2013 and 22 August 2013 as well as maintaining the challenge to the orders made on 14 February 2013 referred to above. The first respondent opposes the application but the second respondent made no submissions in relation to it.
In summary, the orders made on 14 February 2013 discharged the orders of Acting Magistrate Kaeser made on 12 January 2011 and 8 February 2011 and provided for the sale of two properties at Suburb B and Suburb C registered in the joint names of the appellant and the second respondent. Further orders were made dealing with the sale proceeds of those properties, including that the second respondent make a cash payment to Ms Wells of $38,022.66 (being reimbursement of the mortgage payments made on behalf of the second respondent) and any remaining balance to be paid to the second respondent and the appellant. Finally, any arrears of spousal maintenance were discharged and the operation of the order for spousal maintenance made on 4 May 2006 was suspended until further order.
In relation to the orders made on 14 June 2013 and 22 August 2013, the former dismissed an application by the appellant for a stay of the orders made on

14 February 2013, and the latter provided for the enforcement of those orders.
The appellant seeks that all orders made by Chief Judge Thackray on

14 February 2013 be set aside and the appeal filed on 9 May 2011 be listed for directions (that being the appeal against the orders made by the acting magistrate heard and determined by Chief Judge Thackray), but curiously in the “Re-Amended” Notice of Appeal the appellant seeks no orders in relation to the orders made on 14 June 2013 and 22 August 2013.
There is also before us what is described as a “secondary appeal”. That arose from a suggestion made by Chief Judge Thackray at [105] of his reasons for judgment delivered on 14 June 2013 dismissing the application by the appellant for a stay of the orders made on 14 February 2013. In effect his Honour suggested that if this court were to allow this appeal then the original appeal of Ms Wells could then be heard by us, and to enable that appropriate directions could be made to ensure that all necessary materials were before us in relation to that original appeal. That suggestion of his Honour was taken up, and included in the orders made by the Appeal Registrar on 9 August 2013 to prepare this appeal for hearing, directions were made to ensure that the appeal against the orders of the acting magistrate was able to be heard by this Full Court depending on the result of what was described in those orders as “the primary appeal”. In accordance with those directions, on 27 September 2013 Ms Wells filed grounds of appeal against the orders made by the acting magistrate, filed a list of authorities and a written summary of argument on

1 October 2013, and the appellant filed a responding written summary of argument on 16 October 2013. In addition, all of the relevant documents that were before the acting magistrate as well as the transcript of the hearing before his Honour were included in the appeal books.
The appeal against the orders made on 14 February 2013 raises issues regarding the interpretation of the application provisions in the Jurisdiction of Courts (Family Law) Act 2006 (Cth) (“The Amending Act”) which Act altered the appeal process governing appeals from family law magistrates in Western Australia. The appellant asserts that the Family Court of Western Australia did not have jurisdiction to hear the appeal against the orders made by the acting magistrate. Plainly the appeal raises important issues and we consider it appropriate to grant leave to appeal.
On 8 August 2013 Ms Wells filed a Notice of Contention in relation to the appeal against the orders made on 14 February 2013.

Background

The second respondent was born in 1951. He has a university degree but spent most of his working life as a public servant in the United Kingdom. After leaving the public service he worked as a private consultant, and he now operates his own business.
Ms Wells was born in 1948 and died in October 2013. She had not been in paid employment for approximately 10 years before the hearing before Chief Judge Thackray but she was in receipt of Centrelink benefits. She was seriously ill having been diagnosed with cancer.
The second respondent and Ms Wells married in the United Kingdom in 1994, and in 1998 they relocated to Perth.
That marriage broke down in 2005. They were living in a jointly owned house at Suburb D but decided to sell that home and purchase a smaller property at Suburb A where Ms Wells could continue to live once the parties finally separated. This new home was purchased in joint names in early 2006.
In about late 2005, the second respondent commenced a relationship with the appellant.
In April 2006 the second respondent and the appellant commenced living in an apartment in Suburb E which they purchased as joint tenants for around $435,000, $205,000 of which was jointly borrowed. The balance of the purchase price was provided by the second respondent.
On 1 May 2006, Ms Wells and the second respondent filed an application seeking orders by consent for property settlement and spousal maintenance. Those orders were made on 4 May 2006.
The orders of 4 May 2006 relevantly provided for Ms Wells and the second respondent to hold their interests in the Suburb A property as tenants in common as to 78.5 per cent to Ms Wells and 21.5 per cent to the second respondent. The second respondent was to assume liability for and indemnify Ms Wells in relation to the balance of the mortgage over that property for so long as Ms Wells resided in it. The second respondent was also required to pay spousal maintenance to Ms Wells.
The second respondent subsequently ceased meeting his obligations to pay the mortgage and that resulted in an application on 12 November 2009 by

Ms Wells to enforce the consent orders, and on 24 February 2010 the second respondent sought to have the property settlement orders set aside pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). There was a further enforcement application filed by Ms Wells on 22 October 2010 and all of these applications came before the acting magistrate on 4 February 2011.
Before the proceedings were heard by the acting magistrate, and as a result of the mortgagee instituting proceedings in the Supreme Court of Western Australia in January 2011, Ms Wells and the second respondent, without prejudice to the Family Court proceedings, agreed that the second respondent would transfer all his interest in the Suburb A property to Ms Wells and she would discharge all arrears and interest in relation to the mortgage.
Chief Judge Thackray noted about this arrangement at [40] of his reasons for judgment that although the transfer of the second respondent’s interest in the Suburb A property was not expressed to be an interim order it was “clearly intended to be an interim order and without prejudice to [Ms Wells’] primary position that the [second respondent] should continue to hold his minority interest in the [Suburb A] property, on the basis that he remained responsible for the entire mortgage.”
When the applications came before the acting magistrate on 4 February 2011

his Honour determined that he lacked power to hear the application under

s 79A of the Act but that he could hear the enforcement application, and he duly made orders for enforcement and the discharge of the order for spousal maintenance on 8 February 2011. He ordered the transfer of the interests of the second respondent in the Suburb A property to Ms Wells in satisfaction of the outstanding arrears of the mortgage and required Ms Wells to indemnify the second respondent in relation to the mortgage.
The proceedings came before Chief Judge Thackray on 15 August 2012 by way of an appeal brought by Ms Wells against the orders made by the acting magistrate. The outstanding application for orders under s 79A was abandoned at the commencement of the hearing before Chief Judge Thackray.
On 14 February 2013 Chief Judge Thackray set aside the orders made by the acting magistrate and made alternative orders for enforcement as well as discharging the arrears of spousal maintenance and suspending the order for spousal maintenance until further order, as set out in [3] of these reasons.
As also referred to above, on 14 June 2013 Chief Judge Thackray dismissed an application by the appellant to stay the orders of 14 February 2013 (see Somerton & Wells and Anor [2013] FCWA 59).
On 22 August 2013 Chief Judge Thackray made orders providing for the enforcement of the 14 February 2013 orders.
As mentioned, in October 2013 Ms Wells died. By Notice of Contention filed on 28 October 2013 it was submitted on behalf of Ms Wells that as a result the appeal had abated and should be dismissed. An oral application to that effect was dismissed by this Full Court on 3 March 2014 (see Somerton & Wells and Anor (2014) FLC 93-574).
On 17 March 2014, the Appeal Registrar made orders substituting Ms M, the legal personal representative of Ms Wells as the first respondent in this appeal.

Reasons for judgment delivered on 14 December 2012

Chief Judge Thackray commenced the reasons for judgment by recording the relevant background of the parties. His Honour also recorded the procedural background, the competing submissions of the parties, and the documents relied upon in support.
Importantly, his Honour noted as follows (at [45]):
I should pause to note that 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 proceedings 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.
And his Honour continued as follows (at [51]):
I have recorded that it has been accepted that the appeal should proceed by way of hearing de novo. In those circumstances it is unnecessary to identify error in the orders of the learned Magistrate before discharging his orders and making different orders. However, with respect to the learned Magistrate, I am satisfied he fell into error in his attempt to deal expeditiously with the difficult factual scenario with which he was presented.
First, his Honour found that the acting magistrate did in fact vary the property settlement orders, despite finding that it was not within his power to do so. Secondly, his Honour considered that the application by the second respondent to discharge the order for spousal maintenance was not before the acting magistrate, and should have been left to be dealt with at the same time as the then pending s 79A application under the Act.
In relation to Ms Wells, his Honour rejected a submission by the appellant and the second respondent that she had an income earning capacity, despite her significant illness.
His Honour also rejected the submission that Ms Wells had been “warehousing” sums of money, finding that it was impossible for her to save anything other than a modest sum due to her sources of income emanating from the second respondent and some cash from part time cleaning.
His Honour recorded that the financial position of the second respondent and the appellant was difficult to ascertain, but rejected a submission that it was due to a deliberate effort to defeat disclosure obligations. His Honour found that they had a combined income from their business of $2,340 per week.
His Honour then turned to consider the assets of the parties. It was agreed that the value of the Suburb B property was $700,000 but subject to a mortgage of $396,000. With the Suburb C property, his Honour proceeded on the basis that it was worth $300,000 but subject to a mortgage of $360,000. The Suburb A property had an agreed value of $450,000, and his Honour found that the mortgage secured over the title to that property was $138,000. The second respondent had a 21.5 per cent interest in this property but he was totally responsible for the mortgage; thus he had a negative equity of $41,250.
As for other assets, it was agreed that the second respondent’s business had an equity of $81,000, and that he had $37,000 in superannuation with a motor vehicle of “modest value”. He also had credit card debts of $60,000 and a disputed $50,000 tax liability. The assets of Ms Wells comprised a motor vehicle of “modest value” and superannuation worth $3,000.
Turning next to whether the property settlement orders should be enforced,

his Honour recorded that, in relation to the mortgage over the Suburb A property, Ms Wells had paid $37,772 toward this. His Honour found that the indemnity given by the second respondent should “extend to all of these payments” (at [77]).
The first issue here for his Honour, was whether the court should require the second respondent to comply with his obligations by reimbursing Ms Wells these expenses.
His Honour considered that it was beyond doubt that the court has a discretion in relation to the enforcement of its own orders. The second respondent submitted that the court should exercise the discretion not to enforce because he had suffered financial setbacks (due to the Global Financial Crisis), the value of the Suburb C property had “deteriorated significantly”, he and the appellant had a close “emotional” attachment to the Suburb B property, and the appellant was afflicted with a “sad personal history” and suffered from depression and anxiety, which would be exacerbated if the property was ordered to be sold (at [79]).
Ms Wells submitted that the discretion should be exercised in her favour as she “[was] in poor health, unable to support herself and would lose her home if the orders [were] not enforced because her family [could not] continue to meet the mortgage repayments” (at [80]). She also did not delay in seeking to enforce the orders (at [81]).

In the end result his Honour found that the 2006 consent orders should be enforced. His Honour accepted the submissions of the counsel for Ms Wells “that there [were] strong public policy considerations supporting the principle that courts should be seen to enforce their orders”, that to do otherwise “something more [is required] than the fact that one party’s financial position has deteriorated significantly” (at [82]), and further “that the test is not one of fairness” (at [83]).
Accepting the submissions of counsel for Ms Wells, pursuant to

s 90AF(3)(e) of the Act, his Honour found that it was “just” and “convenient” for an order for the sale of the Suburb B and Suburb C properties (owned by the appellant and the second respondent) to be made. His Honour also accepted the submissions put by counsel for Ms Wells with regard to

ss 90AF(3) and 90AF(4) of the Act (at [89]).
His Honour noted that the purpose of the sale of those properties was “to provide a fund from which the [second respondent] can meet his obligations pursuant to the orders for property settlement” (at [90]).
Turning to the applications regarding the orders for spousal maintenance,

his Honour recorded that the second respondent sought a discharge of the orders, and Ms Wells sought payment of the arrears in full and that the order not be discharged.
His Honour calculated that in the event that the second respondent was required to pay all arrears in full he would have to pay to the first respondent a total sum in excess of $120,000 including reimbursement of the mortgage payments.
His Honour then referred to ss 83(1), 83(2), 83(6), 83(8), 106 and 114(3) of the Act.
His Honour found that the second respondent had complied with the orders for three years “which is a strong indication of his bona fides …”, and that the “deterioration in the [second respondent’s] financial position since the end of 2008 to the present time is such that it would not be appropriate to require him to discharge the arrears of maintenance that have accrued during that period” (at [104]-[105]). His Honour then concluded as follows at [105]:
… In my view, the proper outcome is to reduce the [second respondent’s] maintenance obligations to nil for the period commencing from when he ceased payments through to the date on which orders are made pursuant to this judgment.
His Honour proposed to suspend the operation of the maintenance order from the date on which orders were made pursuant to his judgment (14 February 2013) until further order of the court. His Honour noted that the second respondent’s financial position was about to undergo significant change (as a result of the sale of the properties) and it was his Honour’s view that any decision in relation to a change to the maintenance orders should be made “in light of an assessment of the [second respondent’s] position following the sale of the properties” (at [107]).
Turning to whether the appellant’s share of the property should be used to meet the arrears, his Honour made no finding in this respect because he considered that it may not arise, and in any event there were complex legal issues to be considered, “not only concerning my capacity on the current state of the evidence to determine the equitable interest of the [appellant] in the properties, but also whether I can vary that equitable interest by reliance on s 90AF(2)(b)” (at [110]).
In relation to whether the entire mortgage should be discharged, his Honour said this at [112]-[114]:
112The [second respondent’s] obligation under the terms of the consent orders was to meet the [Suburb A] mortgage payments and to indemnify [Ms Wells] in relation to them. Notwithstanding what was said in submissions by counsel for [Ms Wells], I do not consider those orders obliged the [second respondent] to discharge the mortgage other than by making the payments until such time as the mortgage was discharged.
113I therefore do not propose to make the order sought that the proceeds of sale of the [Suburb B] and [Suburb C] properties be utilised to discharge the full balance outstanding on the [Suburb A] mortgage. The [second respondent’s] obligation to meet that commitment was unsecured and to make an order providing for the immediate discharge of the entire debt would be to vary the terms of the property order, which I have stressed is not an option.
114However, given the [second respondent] is self represented, it is important I stress that the orders I propose to make will not discharge the [second respondent’s] obligation to meet the mortgage payments and other outgoings on the [Suburb A] property and to maintain a policy of life insurance. In other words, paragraphs 3, 4 and 6 of the consent orders remain in full force and effect. These were part of the property settlement orders and are now not capable of variation, other than by consent.
As to costs, his Honour indicated that he would not deal with them until the second respondent’s financial position crystallised after the sale of the properties. On that basis his Honour proposed an interim injunction restraining the second respondent and the appellant from disposing of the surplus proceeds of sale.

The application to extend time for filing a “Re-Amended” Notice of Appeal

The “Re-Amended” Notice of Appeal seeks to add the following grounds of appeal:
4. Prior to making its orders on 14 June 2013 the Family Court of Western Australia failed to: (1) take into account the terms of the amended notice of appeal filed 6 June 2013; (2) adequately take into account the likely hearing of the appeal in October 2013; (3) failed to have regard to the cumulative impact of the complaint about jurisdiction (which was taken into account) and points (1) and (2) above, such that the orders were made under an error of principle and additionally or alternatively gave rise to a substantial injustice in all the circumstances.
5. Prior to making its orders on 22 August 2013 the Family Court of Western Australia failed to:
(1)take into account the terms of the amended notice of appeal filed
6 June 2013;
(2)adequately take into account the confirmed hearing date for the appeal in October 2013;
(3)failed to have regard to the cumulative impact of the complaint about jurisdiction (which was taken into account) and points (1) and (2) above, such that the orders were made under an error of principle and additionally or alternatively gave rise to a substantial injustice in all the circumstances.
As is plain, under the relevant rule of court providing for a 28 day time period (r 22.03 Family Law Rules 2004 (Cth) (“the Rules”)), an appeal against the order made on 14 June 2013 should have been filed by 12 July 2013, and an appeal against the orders made on 22 August 2013 should have been filed by

19 September 2013.
The application is supported by an affidavit filed also on 16 October 2013, and the first thing to note is that there is no explanation whatsoever in that affidavit for the failure to file Notices of Appeal within time. The second thing to note is that in relation to the proposed appeal against the orders made on

22 August 2013, although the appellant filed a supplementary appeal book on 29 October 2013, she has not provided us with the reasons for judgment or the transcript of the hearing before his Honour. Thus, even though we do have a very brief summary of argument, we are not able to consider and assess the merits of this proposed appeal. Further, the proposed grounds of appeal appear to proceed on the basis that the grounds of appeal that are before us in relation to the orders made on 14 February 2013, would be successful, and as will become apparent, that is not the case.
In those circumstances there is no basis on which we would extend the time to file an appeal against the orders made on 22 August 2013.
As to the proposed appeal against the order made on 14 June 2013 dismissing the appellant’s application for a stay, although we do have the reasons for judgment, the transcript of the hearing, and a brief summary of argument, the same difficulties emerge from the proposed grounds of appeal as with the other proposed appeal, and in any event, we have now heard the appeal against the orders made on 14 February 2013. Thus, there is also no basis on which we would extend the time to file an appeal against the orders made on 14 June 2013.
On these bases the application in an appeal filed on 16 October 2013 must be dismissed.

Grounds of Appeal

The grounds of appeal comprised in the Amended Notice of Appeal filed on

6 June 2013 are as follows:
1.The Family Court of Western Australia did not have the jurisdiction to make the orders on 14 February 2013. Particularly:
i.An appeal against the orders made by Acting Magistrate Kaeser on 8 February 2011 could only be determined by the Family Court of Australia pursuant to section 94AAA of the Family Law Act 1975;
ii.Despite the reasons for decision at [45], jurisdiction cannot be conferred on a Court by the consent of the parties or the absence of objection of the parties: Ridley v Whipp (1916) 22 CLR 381 at 386 per Griffith CJ, Finlacen v Finlacen (sic) and Gillam (2002) FLC 93-121 at 89,238-89,239 [82].
2.The learned trial judge erred in ordering the second respondent to do all acts and things necessary to sell at market value the [Suburb B] property and the [Suburb C] property, because:
a)Such an order fell outside the scope of S.90AF of the Family Law Act 1975 (the Act);
b)Such an order failed to give sufficient weight to the principle that the Court must take the property of a party to a marriage as it finds it and the [appellant] holds both of the said properties as joint tenant with the second respondent; and
c)Such an order failed to give sufficient weight to the impact of the order on the second respondent (sic).
3.In the alternative to ground 2, the learned trial judge erred in restraining the [appellant], until further order, from disposing of her share of the remaining proceeds of sale of either of the said properties.

Discussion

Ground 1

As can be seen the complaint here is that his Honour did not have the “jurisdiction” to hear and determine the appeal against the orders made by the acting magistrate on the basis that he did, namely as a judge of the Family Court of Western Australia hearing the appeal de novo pursuant to s 96 of the Act.
It is said that the appeal should have been heard by the Family Court of Australia in its appellate jurisdiction under s 93AAA of the Act.
Senior counsel for the first respondent suggested that there was no issue of jurisdiction here because appellate jurisdiction is not conferred by either s 96 or s 93AAA, but by s 93A(1) of the Act. However, senior counsel ultimately conceded that if s 96 did not apply there was an issue of jurisdiction because the Family Court of Australia did not have the jurisdiction to hear appeals from a Family Law Magistrate in Western Australia prior to 1 July 2006.
In any event, as is apparent, the central issue here is the interpretation of the application provisions of the amendments made to the process governing appeals from Family Law Magistrates in Western Australia.
Prior to 1 July 2006 appeals from such magistrates were heard and determined by a judge of the Family Court of Western Australia, but since 1 July 2006, as a result of the Amending Act such appeals are heard by the Family Court of Australia in its appellate jurisdiction.
The application provisions are comprised in item 27 of Schedule 1 of the Amending Act, and relevantly provide as follows:
27 Application
…
(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.
The relevant items are items 20 (amendment to s 94AAA of the Act) and 26 (amendment to s 96 of the Act).
As set out above, the property settlement and spousal maintenance proceedings were commenced on 1 May 2006 and consent orders were made on 4 May 2006. Then on 12 November 2009 and 22 October 2010 Ms Wells filed applications seeking to enforce the consent orders. Those applications eventually came before the acting magistrate on 4 February 2011 for trial, and on 8 February 2011 his Honour made orders for enforcement, and it is those orders which were the subject of the appeal before Chief Judge Thackray.
The question now to be determined is whether the applications for enforcement were part of the proceedings commenced on 1 May 2006 or are separate proceedings. If it is the former, then the amendments introduced by the Amending Act do not apply to those applications, but they do if it is the latter.
Before addressing this seminal issue we pause to address two arguments put to us by senior counsel for the first respondent.
First, it is plain that this issue of “jurisdiction” was raised by his Honour during the hearing. The position of counsel for Ms Wells (the appellant before his Honour) was that having researched the point, the amendments did not apply; in other words, the appeal should proceed as a hearing de novo before a judge of the Family Court of Western Australia, and the merits were not required to be argued. This was accepted by the judge who extended the time for the filing of the appeal, and the following exchange took place between bench and bar at the hearing before Chief Judge Thackray on 22 November 2011:
HIS HONOUR:       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.
HIS HONOUR:       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.
(Transcript 22/11/11, page 9, lines 1-35)
Then, as referred to already his Honour said this at [45] in his reasons for judgment:
I should pause to note that 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 proceedings 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.
Thus, the submission of senior counsel for the first respondent is that, given the appellant was a party to the agreed position before his Honour, it was not open to the appellant to challenge the “jurisdiction” of the primary judge in this appeal. Further, and to address the valid argument made on behalf of the appellant that the general principle that a litigant is bound on appeal by the conduct of his or her case at trial “does not apply to questions of law where no further evidence called below could answer the point now taken” (appellant’s summary of argument filed 1 October 2013 paragraph 2.9; Water Board v Moustakas (1988) 180 CLR 491 at 497), senior counsel for the first respondent equally validly submitted that this is not a point of law that was not raised below, and at that time the appellant, having the opportunity to object to the exercise of the jurisdiction, chose to join in the agreement that the pre

1 July 2006 appeal process applied. Thus it is said, the exception to the general principle when a point of law is raised does not apply here.
However, the appellant, who appeared without legal representation before

his Honour, and also before this court, argues that her failure to object to the course proposed cannot be taken as a fully informed consent given that she did not understand the legal technicalities of the issue under discussion. Indeed, it was not she who was raising the question of the appropriate appeal process, it was the counsel for Ms Wells.
We accept the force of the appellant’s submission, however, neither submission can overcome the fact that “jurisdiction cannot be conferred on a court by the consent of the parties or the absence of objection of the parties” (Ridley v Whipp (1916) 22 CLR 381 at 386; Finlayson v Finlayson and Gillam (2002) FLC 93-121 at 89,238-89,239). In plain language, either the court has jurisdiction or not, and it if does not then because the Family Court of Western Australia is not a superior court of record, any order made outside jurisdiction is void ab initio and is not binding until set aside as would be orders made by a superior court (Wade-Ferrell & Wade-Ferrell (2001) FLC 93-069 at [31]). Senior counsel for the first respondent attempted to argue that there was no issue of jurisdiction in order to avoid this consequence, but, as referred to above, we challenged him about that and he subsequently conceded the point.
The second point made by senior counsel for the first respondent that we need to discuss is his submission that whatever the correct appeal path might have been, with the appeal process that was applied, the appellant has not been prejudiced; she sought that the matter be remitted for a rehearing and that is what has occurred. Not only did his Honour hear the proceedings de novo, but he considered and found that the acting magistrate had erred in two significant respects. In other words, his Honour has in fact done all that he would have done if the post 1 July 2006 process had been applied; he identified errors by the acting magistrate on which the appeal would be allowed, and he heard evidence and re-exercised the discretion. The only “deficiency” in that process was that the appeal was not heard by a bench of three appeal judges, but, as senior counsel submitted, it would have been likely that the Chief Justice of the Family Court of Australia would have directed that the appellate jurisdiction be exercised by a single judge, namely his Honour in any event.
Nevertheless, as we pointed out to senior counsel during the hearing, there is a clear prejudice to the appellant; she was the second respondent, and not the appellant before his Honour, and Ms Wells, as the appellant, had an easier task because the hearing proceeded de novo than had it proceeded on the basis of a need to establish error. In other words, she has been able to challenge the orders without needing to identify error. His Honour’s finding that the acting magistrate erred, was in fact unnecessary and was not the subject of full argument.
Thus, this point cannot overcome the lack of jurisdiction either, and we still need to consider whether his Honour erred in applying the pre 1 July 2006 appeal process.

As identified above, this depends on the interpretation of the application provision in item 27(2) of Schedule 1 of the Amending Act. Pausing there though, we observe that because of the “agreement” as to the appeal process to be applied, his Honour did not consider this issue. However, in the context of the application by the appellant seeking a stay of the operation of the orders made by his Honour on 14 February 2013, his Honour took the opportunity to address the merits of the appeal and in particular this question of interpretation. We have been referred by senior counsel for the first respondent to

his Honour’s reasons in this regard delivered on 14 June 2013, and we find

his Honour’s consideration of the issue not only helpful, but entirely accurate.
Given that senior counsel for the first respondent relied on his Honour’s reasons, and given that we are prepared to adopt them, it is appropriate for us to summarise those reasons (paragraphs [55]-[98]):
First, his Honour addressed the legislation and the authorities as follows:
·The meaning of the word “proceedings” in item 27(2) of Schedule 1 of the Amending Act is the same as the meaning given by s 4(1) 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.
·Y & M [2007] FCWA 89 is the only case where the interpretation of item 27(2) has been considered. There the originating application was filed in 2005 and an interim application was filed in 2007. The order under appeal was made on the interim application, and Penny J heard the appeal under the pre 1 July 2006 process. Her Honour opined that “proceedings” referred to “substantive proceedings”, and in that case they were instituted in 2005.
·Y & M is plainly distinguishable from this case given that there the substantive application had not yet been finalised.
·In Chin & Brinkhoff [2008] WASCA 45, Y & M was the subject of comment by Pullin JA. There the orders the subject of the appeal were, inter alia, by way of enforcement of property settlement orders made before July 2006, and his Honour said this 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’s case 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.
·These remarks were obiter because for other reasons the court of appeal did not have jurisdiction to hear the appeal, but it is significant that Pullin JA considered it arguable that enforcement proceedings are part of the substantive proceedings and not a separate set of proceedings.
·In the case of Kennedy & Kennedy (1976) FLC 90-057, Evatt CJ, with whose reasons the other members of the Full Court agreed, said this in reference to the definition of “proceedings” in s 4(1) of the Act (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.
·In the High Court decision of Yule v Junek (1978) 139 CLR 1 Mason J (as his Honour then was) discussed the meaning of “proceedings” in the context of the definition of “matrimonial cause” in s 4(1) of the Act. His Honour impliedly indicated that it would not be appropriate to confine the meaning of the word “proceedings” to an application that “is directed to the obtaining of relief of a designated kind” (at 10).
·In Jacobsen & Jacobsen(Dec) (1988) FLC 91-901, Mullane J said this (at 76,554):
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 party of the properties” not just a particular application … It is not the pleadings which define the ambit of the proceedings, but the legislation.
·
In the Full Court decision of Streyls & Streyls (1988) FLC 91-961

Nygh J, after considering the definition of “proceedings” in s 4(1), and referring to Yule v Junek, agreed with the view expressed by Mullane J in Jacobsen (76,963-76,964).
·In Fitzgerald (as Child Representative for A) (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123, substantive proceedings were settled prior to costs amendments coming into force. The Full Court found that the primary judge had erred in determining a subsequent costs application on the basis that the amendments applied (those amendments only applying to applications filed after commencement). The Full Court took the view that “the application for costs did not constitute separate ‘proceedings’ for the purposes of the transitional provisions, but rather was part and parcel of the substantive proceedings” (at [79]).
·On the basis of these authorities the word “proceedings” can best be 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”.
Secondly, his Honour addressed the merits as follows:
·Given the definition of “proceedings” in s 4(1) of the Act, the relevant questions are whether the proceedings to enforce the property settlement and the spousal maintenance orders, and the proceedings to discharge the spousal maintenance order are “incidental proceeding[s] in the course of or in connexion with” the proceedings in which the orders were made (at [86]).
·In the absence of statutory definitions of the words “incidental” and “connexion” reference to dictionaries “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” (at [93]).
·
The definition of “matrimonial cause” which defines a variety of “proceedings” between parties as constituting a “matrimonial cause” assists the meaning of “proceedings”. The two applications here fall within the definitions of two matrimonial causes (s 4(1)(c) and

s 4(1)(ca) of the Act). They do not fall within s 4(1)(f) because the use of the word “other” there “catches only proceedings that are not covered by the earlier parts of the definition (such as (c) and (ca))” (at [97]).
·“… 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 of 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” (at [98]).
However, having so concluded, given that his Honour did not need to reach an authoritative decision because of the nature of the application before him,

his Honour appropriately indicated that the interpretation advanced on behalf of the appellant was also arguable, and suggested that this Full Court would determine the matter “with the benefit of more fully developed argument than was necessary at the hearing before [him]” (at [100]).
We have received written submissions from the appellant and the first respondent, and we have heard further argument from the senior counsel for the first respondent, but nothing that emerges therefrom takes his Honour’s consideration of the issue any further.
For the reason that his Honour gave in concluding as he did at [98] we are satisfied that the appeal process that his Honour applied was the correct one in this case, and Ground 1 must fail.

Ground 2

The challenge here is to the basis on which his Honour made the order requiring the appellant “to do all acts and things necessary to sell at market value” the two properties jointly owned by the appellant and the second respondent.
There are three specific complaints made, namely:
a)The order fell outside the scope of s 90AF of the Act.
b)“Sufficient weight” was not given to the “principle” that the court must take the property of a party to the marriage as it finds it, and here the second respondent held the properties jointly with the appellant.
c)“Sufficient weight” was not given to the impact of the orders on the appellant.
Addressing first the application of s 90AF of the Act, his Honour said this at [88]-[90]:
88The [second respondent] and [the appellant] have no proposal as to how the mortgage arrears could be discharged other than by the sale of their real estate. Whilst I acknowledge the great stress the sale of the properties will cause them, none of the arguments they have put have persuaded me that their property should be immune from sale.
89I accept the submissions of counsel for [Ms Wells] concerning the power of the Court to order a sale of a property owned jointly with a person who is not a party to the marriage. I am satisfied that the making of an order for sale of the [Suburb B] and [Suburb C] properties is both “just” and “convenient” within the meaning of s 90AF(3)(e ) of the Act. I otherwise accept the propositions in paragraphs 57 to 60 inclusive of [Ms Wells’] written submissions dealing with the matters in ss 90AF(3) and 90AF(4), and dealing also with the public policy considerations.
90I therefore propose to order the sale of the two properties to provide a fund from which the [second respondent] can meet his obligations pursuant to the orders for property settlement.
As can be seen, and this was the submission of counsel, s 90AF could be used to require the sale of jointly owned property to “free up the equity of [the second respondent] to then be the subject of the orders for enforcement”. It was not an exercise at that stage to attach the interests of the appellant, and

his Honour made that abundantly clear at [109]-[111]. There, his Honour left that question for further consideration depending upon what monies were ultimately available to the second respondent.
The submission of the appellant is that the most s 90AF would permit was to sever the joint tenancy and then an order that the second respondent’s interest be sold. Otherwise, to order the sale of the properties is an impermissible interference “with the appellant’s rights in respect of the properties, in particular occupation and enjoyment” (at paragraph 3.2 of the appellant’s summary of argument).
However, to interfere with the appellant’s rights to the extent necessary is precisely what is permitted by s 90AF. Section 90AF(2)(b) clearly enables the court to make any order that “alters the rights, liabilities or property interests of a third party in relation to the marriage” (A.C. & V.C (2013) FLC 93-540 at [18]).
Of course, the power, or the exercise of the power, is not unlimited, and it could not be, and apart from the latter words of the paragraph (which we must say are satisfied here), there are also subsections (3) and (4). His Honour though clearly considered those matters therein prescribed that were relevant to this case (at [89]), and in particular the requirement from s 90AF(3)(e) that the sale of the properties is both “just” and “convenient” within the meaning of that paragraph.
Thus, we are not persuaded that the orders made by his Honour “fall outside the scope of s 90AF”.
With the other two complaints, they raise weight challenges, and the difficulties confronting such challenges are well known. For example, Stephen J said this in the High Court decision of Gronow v Gronow (1979) 144 CLR 513 at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight …
Thus, has it been demonstrated here that his Honour has made “an error of law or mistake of fact” such that is Honour was “plainly wrong”? His Honour was well aware that the properties were held jointly by the appellant and the second respondent, but having correctly found that s 90AF of the Act applied, “the principle that the court must take the property of a party to the marriage as it finds it” plainly fell by the wayside. Thus there was no error of law or mistake of fact here, and this aspect of this ground must fail.
Similarly, the third aspect of this ground must fail. His Honour was well aware of “the impact of the orders on the [appellant]”; his Honour set out the evidence and submissions of the second respondent in this regard at [79] of his reasons for judgment. Plainly, no error of law or mistake of fact was committed here by his Honour, and indeed we observe that no written or oral submission was made to this effect on behalf of the appellant.

Ground 3

It is said that there was no basis for the injunction to be granted, but that overlooks that the injunction was only granted until further order, and

his Honour’s reasons for that. The appellant was only restrained until

his Honour had determined the issue of costs, and, if necessary, whether the appellant’s “equitable interests in the properties followed the legal title”. We observe that the appellant was clearly incorrect in submitting that the evidence did not disclose any basis for concluding that the equitable interests did not follow the legal title (see his Honour’s reasons at [10]-[13], and the oral evidence at transcript 15.8.12, pages 84, 88-89). Thus, we find ample basis for his Honour to restrain the appellant’s use of the proceeds of sale of the properties on an interim basis.

Conclusion

Having found no merit in any of the grounds of appeal, the appeal must be dismissed. On that basis the so-called secondary appeal also falls by the wayside given that that only needed to be addressed if the primary appeal was allowed.

Costs

At the conclusion of the hearing of the appeal we sought submissions as to the question of costs depending on the result of the appeal.
In the event that the appeal was dismissed, the first respondent sought an order for costs, but that was opposed by the appellant.
Whilst we are sympathetic to the fact that the estate of Ms Wells will have to bear the costs of opposing the appeal, given that the central issue in this appeal was one of jurisdiction, and that question was a difficult and complex one, we would not be disposed to make an order for costs against the appellant.
We also note that when his Honour adjourned the application in an appeal filed on 16 October 2013 seeking an extension of time for hearing by this court,

his Honour also reserved the costs of that day to this court. However, neither party made any written or oral submission in support of or in opposition to any costs of that order being awarded to any party. Accordingly we proceed on the basis that no application for costs is pursued and no order need be made.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland & Ainslie-Wallace JJ) delivered on 12 February 2015.

Associate:

Date: 12 February 2015