Stokey & Dye
[2023] FedCFamC1A 38
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Stokey & Dye [2023] FedCFamC1A 38
Appeal from: Dye & Dye [2022] FCWAM 102 Appeal number(s): NAA 166 of 2022 File number(s): PTW 6165 of 2021 Judgment of: ALDRIDGE J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – APPEAL – Application for leave to appeal on interlocutory orders – Where the wife’s son appeals against property orders – Whether the primary judge erred in refusing to make a s 102NA order – Application of relevant rules – Apprehension of bias – No error established – Leave to appeal from the interlocutory orders refused – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 39, 41, 69J, 102NA
Judiciary Act 1903 (Cth) ss 79, 80
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 11
Family Law Act 1977 (WA) ss 36, 39
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 11
Restraining Orders Act 1997 (WA) ss 10H, 63(2)
Rules of the Supreme Court 1971 (WA)
Cases cited: Gadde & Gadde [2019] FamCAFC 116
Jess & Jess (2014) FLC 93-620; [2014] FamCAFC 227
Jess & Jess (No 3) [2023] FedCFamC1A 2
Kabat & Garacia [2019] FamCAFC 191
Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Rilak (No 2) [2022] FedCFamC1A 100
Robeck & Robeck [2018] FamCAFC 201
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
The Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Valley & Valley [2005] FCWA 98
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 54 Date of hearing: 7 February 2023 Place: Sydney (via video link) The Appellant: Self-represented litigant Counsel for the First Respondent: Mr Sweetman Solicitor for the First Respondent: KDK Family Law The Second Respondent: Self-represented litigant ORDERS
NAA 166 of 2022
PTW 6165 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR STOKEY
Appellant
AND: MR DYE
First Respondent
MS DYE
Second Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
31 march 2023
THE COURT ORDERS THAT:
1.Leave to appeal against Orders 3, 4 and 6 made on 6 July 2022 is refused.
2.The appeal is dismissed.
3.Any party seeking an order as to costs is to file and serve written submissions on the issue of costs within 14 days.
4.Written submissions in response are to be filed and served within a further 7 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stokey & Dye has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an application for leave to appeal, and if leave be granted, to appeal against orders made by a magistrate of the Magistrates Court of Western Australia (“the Magistrates Court”) on 6 July 2022 brought by Mr Stokey (“the applicant”), who is the son of the second respondent, Ms Dye (“the wife”). The first respondent is Mr Dye (“the husband”). The respondents are engaged in property settlement proceedings in the Magistrates Court of Western Australia. The applicant is a party in those proceedings and contends that he has a one third beneficial interest in a property at Suburb B which is registered in the sole name of the wife. On 6 October 2021, he filed a Response and a Statement of Claim which set out the basis on which he claims the one third interest.
The orders appealed against are:
3.If either party opposes the claim made by the [applicant], they file their Defence by no later than 31 August 2022, unless there is an application filed seeking for the [applicant] to re-plead his Claim.
4. The Form 2 Application filed 25 February 2022 be dismissed.
5.The [applicant] pay the [husband’s] costs of the Form 2 Application filed 25 February 2022 and the Form 2A Response filed 3 June 2022, fixed in the sum of $600, with such payment to be made to the [husband’s] solicitors by no later than 6 October 2022.
6. The interim applications otherwise be dismissed.
Orders 3, 4 and 6 are clearly interlocutory and leave is required. Order 5 is not an interlocutory order and leave to appeal is not required.
The reference to the “Form 2 Application” is a reference to an interim application filed by the applicant, in which he sought orders that:
(1)Within 14 days the husband sign a completed freedom of information form for the release of his medical records held by Hospital C, Hospital D, a mental health unit and a health care centre for the production of medical records relating to the husband;
(2)A single expert be appointed;
(3)There be a ban on cross-examination in accordance with s 102NA of the Family Law Act 1975 (Cth) (“the Act”);
(4)In the alternative to Order 1 and 2, the Court make findings that certain facts have been established by reason of a failure to disclose the documents sought by the applicant;
(5)The husband not be allowed to present the documents the subject of the freedom of information request at the trial without the consent of the remaining parties;
(6)Costs;
(7)Payment of security for costs in sum of $20,000; and
(8)The Court dismiss all parts of the husband’s case relating to non-disclosed documents.
BACKGROUND
In order to place the Form 2 Application (the interim application) into the appropriate context and so as to understand the appeal, it is necessary to set out some of the salient facts.
According to the husband, a relationship with the wife commenced in 2015. They were married in 2016 and separated on 16 January 2021. On 22 July 2021, the husband filed an Initiating Application in the Magistrates Court seeking a property division between himself and the wife. The main property, subject of the proceedings, was a property located in Suburb B, which was registered in the sole name of the wife. Principally, the husband sought the sale of the property and that he receive 70 per cent of the net proceeds.
The wife filed a Response on 31 August 2021, joining the applicant as the second respondent to the property proceedings. The wife sought a declaration that the applicant had a 33 per cent interest in the Suburb B property. The wife proposed that the husband receive 14 per cent of what she said was their 66 per cent interest in the Suburb B property.
The applicant filed a Response on 6 October 2021 in which he also sought a declaration that he had a 33 per cent interest in Suburb B property. Annexed to his Response was a Statement of Claim which set out the basis on which he asserted he held a one third interest in the property.
This led to the Form 2 Application (the interim application).
THE APPEAL
Leave to appeal
Leave to appeal is granted, generally speaking, when the decision at first instance is attended by sufficient doubt to warrant to it being reconsidered by the Full Court and if substantial injustice would result if leave were refused, supposing the decision to be wrong (Jess & Jess (2014) FLC 93-620; Medlow & Medlow (2016) FLC 93-692).
The Court said in Jess & Jess (No 3) [2023] FedCFamC1A 2:
36.In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Gibbs CJ, Aickin, Wilson and Brennan JJ said at 177:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd.; on the other hand, De Mestre v. A. D. Hunter Pty. Ltd. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.):
“... I am of opinion that, there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
See also, Brambles Holdings Ltd. v. Trade Practices Commission; Dougherty v. Chandler. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.
(Emphasis added) (Footnotes omitted)
Orders 3, 4 and 6 are clearly procedural orders which relate to the preparation of the matter for hearing. Each of the applications for such orders can be revisited at any time, although, of course, for obvious reasons, courts rightly frown upon repeated interlocutory applications of the same kind. Nonetheless, it is apparent from the applicant’s own written submissions that the matter has been transferred from the magistrate to a judge of the Family Court of Western Australia who has apparently also declined to make an order under s 102NA of the Act.
If that is so, the present appeal, at least against those orders, is entirely pointless and futile having been overtaken by the later application.
This factor alone strongly points against the grant of leave.
Further, an appeal does not lie against every order or direction made by a trial judge, therefore orders which “did not determine the proceedings, nor any issue in the proceedings, nor did they conclude any substantive legal rights of the parties” cannot be the subject of an appeal (Kabat & Garacia [2019] FamCAFC 191 at [2]). This is consistent with a long line of reasoning see: The Commonwealth v Mullane (1961) 106 CLR 166; Yule v Junek (1978) 139 CLR 1; Tallant & Kelsey (2016) FLC 93-742; Robeck & Robeck [2018] FamCAFC 201; Meadows & Meadows (2019) FLC 93-883; Gadde & Gadde [2019] FamCAFC 116.
As I explained in Rilak (No 2) [2022] FedCFamC1A 100 these principles continue to apply:
43.Prior to the introduction of the FCFCOA Act, appeals were from “decrees” (s 94(1)(a) of the Act) which was defined as meaning “decree, judgment or order”.
44.The applicable provision is now s 26 of the FCFCOA Act, which empowers the Federal Circuit and Family Court of Australia (Division 1) to hear and determine appeals from judgments as opposed to decrees, and this does not, in my view change the principles to be applied. This is because s 7(1) of the FCFCOA Act defines a judgment as meaning:
… a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of the Family Law Act 1975.
Thus the words “decision and sentence” have been added to the definition.
45.It is difficult to see that the inclusion of the word “decision”, which did not previously appear in the definition, was intended to overrule the existing well-established principles and to enable appeals against decisions of any kind even though they may be entirely procedural and effected no change in the determination of the rights of the parties.
46.The Explanatory Memorandum to the Federal Circuit and Family Court of Australia Bill 2019 (Cth) (“the Explanatory Memorandum”) said the following about s 26 of the FCFCOA Act, strongly suggesting that there was no legislative intention to change the existing range of appellate jurisdiction:
89.This clause reflects the retention of the existing Family Court’s appellate jurisdiction in the FCFC (Division 1).
47.Section 73 of the Constitution gives the High Court of Australia jurisdiction to hear appeals from “all judgments, decrees, orders, and sentences”. Section 4 of the Federal Court of Australia Act defines “judgment” for the purposes of s 25 of that Act as “a judgment, decree or order, whether final or interlocutory; or a sentence; and includes a conviction”. Section 26 of the FCFCOA Act is closer to these provisions than its predecessor.
48.The question is, what is to be made by the inclusion of “decisions”, which, if taken literally, would include all decisions of any kind. Such an approach would render the other words in the definition entirely otiose.
49.There is no room to impute an intention by the Parliament to overrule decades of jurisprudence about the meaning of “judgment” without the FCFCOA Act expressly saying so. No such express intention is evident, particularly given the provisions of the Explanatory Memorandum.
50.Thus, in my view, the principles set out in cases such as Commonwealth v Mullane (1961) 106 CLR 166; Yule & Junek (1979) 139 CLR 1; Tallant & Kelsey (2016) FLC 93-742; Robeck & Robeck [2018] FamCAFC 201; Meadows & Meadows (2019) FLC 93-883; Gadde & Gadde [2019] FamCAFC 116 and Kabat and Garacia [2019] FamCAFC 191 continue to apply.
It follows then that Order 3 made by the magistrate as to filing a defence and the orders dismissing Orders 1 and 2 of the interim application are not decrees from which an appeal lies.
In addition, as the magistrate pointed out, an order seeking the appointment of a single expert without identifying the expert or the matter on which the expert is to report is entirely meaningless. There is no need to say anything further about that aspect of the appeal.
Nonetheless, I propose to deal briefly with the proposed grounds of appeal so as to determine the merit or otherwise of them.
Did her Honour err in refusing to make an order under s 102NA(1)(c)(ii) of the Act? (Ground 1)
Section 102NA prohibits a party from cross-examining another party in certain circumstances where family violence has arisen or is alleged.
The provision relied upon by the applicant is s 102NA(1)(c)(ii) which relevantly provides that if a family violence order (other than an interim order) applies to both parties then neither may cross-examine the other personally and that any cross-examination must be conducted by a legal practitioner.
The magistrate found that there was indeed a Family Violence Restraining Order and a Final Conduct Agreement in place which would expire on 22 September 2022 and said:
23.So basically, everybody wants to be able to cross-examine the other party and challenge the evidence. So where there is a final order in place, a mandatory ban applies. However, you will not get to a trial by September 2022. So, at the time you get to a trial, there won’t be a Final Conduct Agreement Order or Family Violence Restraining Order in place, so I will not be making the cross-examination ban.
…
28.I am not going to make the order in relation to [the wife] because clearly it’s going to expire beforehand.
29.If from either parties’ point of view circumstances change, you can always bring that to the attention of the court and, in fact, the orders require you to do that.
30.The difficulty I have is the test is cross-examination at trial. And on the current evidence before the court, there won’t be a Final VRO or Conduct Agreement Order in place at trial.
Section 102NA(1) does not refer to a trial, but in practical terms, its main focus is on final hearings because cross-examination at interim hearings is highly restricted and rare. However, of course, the section applies to any cross-examination, whether it be at an interim hearing or at a final hearing. All I understand the magistrate to be saying is presently no cross-examination was likely and that the need to consider to a cross-examination ban under s 102NA would probably arise only when the trial was imminent. At that stage the issue would be considered.
Subsection 102NA(1)(c)(ii) uses the word “applies” which speaks in the present tense and clearly refers to the time at which the application is heard. It does not use the phrase, for example, “has applied” to speak of an order that was made in the past and has expired. Clearly, in my respectful opinion, the magistrate was correct in saying that the relevant time to consider whether there is such a relevant family violence order in place is when the application is being considered. Her Honour was doing no more than indicating the application was premature. That must be correct, there was no cross-examination imminent.
I can see no error whatsoever in the approach of the magistrate.
The applicant also complains that the magistrate did not consider whether an order should have been made under s 102NA(1)(c)(iv), which is where the court considers it desirable that the ban on cross-examination apply. That goes beyond the grounds of the appeal, but again the application is premature. In other words, even if the magistrate wrongfully failed to consider that aspect of the matter, it can be the subject of a further application. No substantial injustice would have arisen. Indeed, the preferable course in those circumstances, would be to consider the facts as they are likely to apply at or near the time of cross-examination and not a long time earlier.
Under this ground, the applicant also complained that the magistrate failed to make an order under s 63(2) of the Restraining Orders Act 1997 (WA) which empowers a court hearing proceedings under the Act to make a restraining order against a party to the proceedings or any other person who gives evidence in the proceedings. According to the applicant, the wife sought such an extension, which was refused.
That is not the subject of any ground of appeal and, in any event, the applicant has no interest in the refusal of an application for a restraining order by the wife.
The applicant also submitted that her Honour erred by giving weight to the submissions of the husband. I do not understand the submission because, plainly, s 10H(1) of the Restraining Orders Act 1997 (WA) does not prevent a person against whom an order is sought, from being heard on it.
There is no merit in Ground 1.
Did her Honour err by refusing to order that the husband provide the information requested in the Form 2 Application (the interim application)? (Ground 2)
The applicant submits that the magistrate erred by finding that subpoenas could be issued to obtain the documents the subject of the request because Order 36B, r 2(2B)(b) of the Rules of the Supreme Court 1971 (WA) state that a subpoena to produce must not be issued unless a defence has been filed or the court has given leave.
The applicant submits that these rules apply by virtue of s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) or s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) or s 79 and s 80 of the Judiciary Act 1903 (Cth) and override the rules of the Family Court of Western Australia. These submissions are misconceived.
The Family Court of Western Australia is a state court which is vested with federal jurisdiction by virtue of s 41(3) of the Family Law Act 1975 (Cth) (the relevant proclamations having been made in relation to that court). That court is also vested with non-federal jurisdiction by virtue of s 36 of the Family Court Act 1997 (WA) (as explained by Thackray J in Valley & Valley [2005] FCWA 98 at [26]–[36]). Therefore the court is vested with both state and federal jurisdiction and recourse is not needed to the provisions relied upon by the applicant.
Although the applicant referred to the jurisdiction of the Family Court of Western Australia, this appeal lies from the Magistrates Court. In any event, the Magistrates Court is also vested with federal jurisdiction by virtue of s 39(6) and s 69J(1) of the Family Law Act 1975 (Cth) and is vested with non-federal jurisdiction by virtue of s 39 of the Family Law Act 1977 (WA).
The Family Court of Western Australia and the Magistrates Court have their own rules which deal with the issue of subpoena. Those rules do not include any limitation on the issue of subpoena of the kind referred to in the rules of Western Australian Supreme Court.
Even if s 11 of either of the cross-vesting acts applied, it merely refers to the application of the rules of a “superior court” as opposed to the rules of a particular court.
In any event, as the magistrate pointed out, the primary obligation on the husband is to disclose such documents as he has which are relevant to the proceedings. The husband may well have copies of the hospital and medical records, but it would not be surprising if he did not. Such documents can then be appropriately the subject of a subpoena.
It is true that Centrelink cannot be the subject of a subpoena, but parties can be made to execute the necessary authorities to obtain documents held by them. The difficulty for the applicant is that his Form 2 Application did not seek the production of any documents from Centrelink.
There is no merit in this ground whatsoever.
Further, the subject matter of it is quintessentially one of practice and procedure in respect of which a very high bar is imposed before leave can be granted. As this issue could be re-agitated again in the future it is difficult to see how, even if there had been an error which I am not satisfied there was, a grant of leave would be justified.
Did her Honour err in requiring a defence to be filed by 31 August 2022? (Ground 3)
Again, the applicant mistakenly relies on the rules of the Supreme Court of Western Australia. They do not apply and her Honour was free to make such a direction about a filing of a defence as she saw fit.
I should add that even if the Rules of the Supreme Court 1971 (WA) did apply, her Honour would still have been free to make the direction because Order 1, r 3A of those rules provides that the inherent power of the court to control the conduct of proceedings is not affected by the rules. Further, under Order 3, r 5 the court may extend or abridge a time fixed under the rules.
There is no merit whatsoever under this ground, which again is an exemplar of an order for practice and procedure.
Did her Honour err in refusing to make Order 4 as sought? (Ground 4)
It is helpful to set out the proposed Order 4 in full:
4. In the alternate to order 1 and 2:
(a) That due to [the husband’s] to refusal to disclose the documents sought by [the applicant],
(i)the Court finds that [the husband] concedes that numbered paragraph 74 of [the applicant’s] Statement of Claim dated and filed 6 October 2021 has been made out, or alternately,
(ii)the Court finds that the adverse inference drawn by [the husband’s] refusal to disclose makes out numbered paragraph 74 of [the applicant’s] Statement of Claim dated and filed 6 October 2021.
(Applicant’s Form 2 Application filed on 25 February 2022, p.4)
In effect, the applicant sought an order that binding findings of fact be made at an early stage of the proceedings due to an asserted failure by the husband to disclose relevant documents. There is no basis in law for such a course.
In any event, as is recognised by the applicant himself, this ground is otherwise covered by Grounds 2 and 3. It too has no merit.
Ground 5 was abandoned.
There is therefore no basis for a grant of leave having been established for the above grounds.
Costs (Ground 6)
The applicant submitted that if he was successful on any of his grounds of appeal, her Honour erred in awarding costs. He has not been successful on any ground and therefore there is no basis for identifying an error on the part of the magistrate of making the costs order.
Bias (Ground 7)
It remains to deal with Ground 7, which asserts that “there may be” an apprehension of bias in favour of the husband.
Under this ground the applicant made a number of generalised assertions, but then in his Summary of Argument acknowledged that the transfer from the magistrate to a judge of the Family Court of Western Australia “removes the apprehension of bias” (Applicant’s Summary of Argument filed 10 November 2022, paragraph 56).
However, I cannot see how the matters raised by the applicant suggest that her Honour gave any appearance other than one of impartiality in deciding the case on its merits. The applicant did not ask her Honour to recuse herself and has accepted that the point is now moot.
That should have been the end of the matter. It was not. The applicant then went on to make complaints which could be seen as a challenge to the impartiality of the judge now hearing the matter. That, of course, has nothing to do with this appeal.
CONCLUSION AND COSTS
It follows that the application for leave to appeal will be dismissed and the appeal against the costs will also be dismissed.
Where the appeal was to be dismissed, counsel for the husband sought that written submissions be filed as to costs, so that he could address offers of settlement made. I will make those orders.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 31 March 2023
9
0