Tyler & Fortini
[2021] FamCAFC 168
•25 August 2021
FAMILY COURT OF AUSTRALIA
Tyler & Fortini [2021] FamCAFC 168
Appeal from: Consent Orders Appeal number(s): SOA 39 of 2021 File number(s): MLC 2148 of 2019 Judgment of: STRICKLAND J Date of judgment: 25 August 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the final property settlement orders were made by consent – Where the appeal is misconceived – Where no appealable error by the primary judge is demonstrated – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 79A(1)(a) Division: Appeal Division Number of paragraphs: 14 Date of hearing: 25 August 2021 Place: Melbourne via telephone link to Adelaide The Appellant: In Person Solicitor-Advocate for the Respondent: Mr Spinks Solicitor for the Respondent: Morgan Legal Pty Ltd ORDERS
SOA 39 of 2021
MLC 2148 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR TYLER
Appellant
AND: MS FORTINI
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
25 AUGUST 2021
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 24 June 2021 be dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tyler & Fortini has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This is a further hearing in relation to a Notice of Appeal filed by Mr Tyler (“the appellant”) on 24 June 2021, appealing against final orders for property settlement made by consent on 27 May 2021.
There was a hearing listed in this matter on 17 August 2021, but unfortunately, for reasons which I do not need to address, the appellant did not appear and I adjourned the hearing to today. The appellant has appeared today and I understand that he wishes to pursue this appeal. However, in my view, the appeal is misconceived and must be dismissed, and, indeed, that is the oral application made today on behalf of Ms Fortini (“the respondent”).
I should note one other thing though before I proceed, and that is that although the appellant did not appear at the hearing on 17 August 2021, I made certain remarks for the purpose of the transcript as to the appeal, and I arranged for the Appeal Registrar to provide the parties, including the appellant, with the transcript of that hearing. My purpose in doing that was to alert particularly the appellant to my views in relation to the appeal, and that it was misconceived.
In any event, the hearing has proceeded today.
I have confirmed the view that I formed in relation to this appeal with the appellant and, of course, counsel for the respondent, and the appellant has made oral submissions in an attempt to keep the appeal alive. However, they were unpersuasive and I remain of the view that the appeal is misconceived. My reasons for that are as follows.
First, the orders, as I have said, are final orders for property settlement, and they were made on 27 May 2021. At that hearing, both parties, including the appellant, were represented by counsel, and according to the transcript of that hearing, at the commencement of the hearing time was sought by counsel for the appellant to meet with him to discuss the matter, and the primary judge gave that time. The matter was adjourned at 10:40am, having commenced at 10:36am.
According to the transcript, the hearing resumed at 2:35pm, when her Honour was advised by both counsel that the matter had settled, and they had minutes of consent order to present to her, which they did. They were handwritten minutes, and her Honour had some difficulty in reading some of the handwriting, but as is apparent from the transcript, her Honour clarified that, received appropriate responses as to those issues, and her Honour then said this following that toing and froing, as I describe it, between bar and bench, as to the precise terms of the minutes of consent order:
HER HONOUR: Thank you. I have read the materials. Mr Baume, is there anything further that you wanted to say in relation to these consent orders?
And I interpolate to say, that Mr Baume was the counsel who appeared for the appellant husband. So continuing:
MR BAUME: No, your Honour.
HER HONOUR: All right, then. Thank you, Mr Baume. All right, then, well, having read the consent orders and having read the documents in the files, and in particular, the documents that have been filed on behalf of the applicant wife, in particular the updated case outline dated 24 May 2021, and the Chronology and the table Assets Liabilities Contributions and Future Needs, I am satisfied that in the circumstances of this case these orders are just and equitable and the Court will make those orders accordingly. …
(Transcript 27 May 2021, p.8 lines 15–26)
And her Honour then went on to make the orders.
In the Notice of Appeal filed on 24 June 2021, there are four orders appealed, namely, orders 5, 6, 7 and 8. And under the heading Grounds of Appeal, the appellant, who it seems prepared this Notice of Appeal himself, without any legal assistance, set out the following:
1.From my understanding I agreed to accept $35,000 from the joint asset pool after the joint debt of $38,000 had been paid off.
2.There was no discussion of my Australian Super Fund. I did not consent to paras 5 and 7, 8, 9.
3.My ex-wife is actively pursuing my UK Pension in contradiction to paragraph 10.
4.My legal representatives have been disingenuous.
I note that none of those so-called grounds of appeal can, in fact, be described as such, given in particular that they do not demonstrate any appealable error by the primary judge. That, of course, is what an appeal is about, namely, to be successful, the appellant needs to demonstrate that the primary judge has made an appealable error such that the appeal should be allowed. Thus, the Notice of Appeal does not, to repeat, demonstrate any appealable error by the primary judge, and, indeed, in the circumstances of the case, given how it was finalised with consent orders, none of the complaints raised under the heading Grounds of Appeal can be, to use the vernacular, sheeted home to the primary judge. Her Honour, in making the consent orders, has carried out her duty and responsibility in satisfying herself on the documents before her that the consent orders were just and equitable.
The appellant argued that her Honour had prejudged the matter by making certain comments during the hearing. Those comments were as follows:
HER HONOUR: …But I’m very conscious of the fact that this matter has been listed for final hearing, I think, on no less than three occasions, and there is a degree of inevitability of the outcome, in my view, of this particular matter. …
(Transcript 27 May 2021, p.3 lines 30-32)
And further:
HER HONOUR: Yes. Thank you. Mr Baume, given the difficult [sic] we’ve had getting your client here today and that this matter has been adjourned on, I think, three occasions, a period of time for you to confer with your client but not to extend it. Because if agreement can’t be reached, in my view, there’s a fairly inevitable outcome to this case, I will probably call the matter on and we will proceed.
(Transcript 24 May 2021, p.3 lines 42-46)
These comments were made in the context of her Honour allowing counsel time to confer with the appellant and explore a negotiated settlement. They do not indicate prejudgment, but reveal that her Honour had formed a preliminary view of the outcome, being familiar with the matter. It was not only quite appropriate for the primary judge to make such comments, but indeed, it was incumbent on her to do so in the circumstances.
Thus, to repeat, in my view, the appeal is misconceived and must be dismissed.
However, as I have indicated to the appellant, he may have two other courses of action. One is to file an application pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth), alleging a miscarriage of justice and seeking to either set aside the orders or vary the orders on that basis. The other course of action I have identified that may be open to the appellant, is an action against his legal representatives because, as is plain from what he has set out under the heading of Grounds of Appeal, at least three of those matters relate to his legal representatives on the day.
In any event, they are matters for the appellant to consider, and all I am dealing with is this Notice of Appeal, which for the reasons that I have indicated, I propose to dismiss.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 31 August 2021
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