Uttley and Uttley
[2017] FamCAFC 58
•1 March 2017
FAMILY COURT OF AUSTRALIA
| UTTLEY & UTTLEY | [2017] FamCAFC 58 |
| FAMILY LAW – APPEAL – DIVORCE – Where the respondent husband no longer has legal representation and resides in the United Kingdom – Where the respondent husband has had notice of the hearing and advice that if he did not attend the hearing or was not represented orders may be made in his absence – Where one of the orders appealed is directly inconsistent with what counsel for the respondent husband advised the trial judge was the case – Where the trial judge should not have made that order being aware of the parties’ position in relation to it, namely that the wife had no control over those proceedings and was not in a position to withdraw or discontinue them – Where the appeal against that order should be allowed and the order set aside – Where there is no appealable error made by the trial judge in making the second order under appeal but as a result of the first order being set aside a slight amendment should be made to it such that it reads more logically and sensibly and it should be renumbered – Appeal allowed – Order amended. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Uttley |
| RESPONDENT: | Mr Uttley |
| APPEAL NUMBER: | SOA | 94 | of | 2016 |
| FILE NUMBER: | MLC | 2691 | of | 2016 |
| DATE DELIVERED: | 1 March 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 1 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 23 September 2016 |
| LOWER COURT MNC: | NA – transcript only |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | No appearance |
Orders
The order pronounced earlier today dismissing the appeal be rescinded.
The appeal be allowed insofar as it appeals against paragraph 1 b of the orders made by Judge Riley on 23 September 2016.
Paragraph 1 b of the orders made by Judge Riley on 23 September 2016 be set aside.
Paragraph 1 c of the orders made by Judge Riley on 23 September 2016 be amended to 1 b and read as follows:
b.save and except for s.498a of the Dowry Prohibition Act case number 4106 of 2010 IPC 498, 504, 114, s.3, 7 between the parties, any other suit or action arising out of the marriage between the parties (“the Indian matrimonial proceedings”).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Uttley & Uttley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 94 of 2016
File Number: MLC 2691 of 2016
| Ms Uttley |
Appellant
And
| Mr Uttley |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an appeal filed by Ms Uttley (“the wife”) on 20 October 2016 against orders made by Judge Riley on 23 September 2016. I dealt with the matter earlier today in the absence of both the wife and Mr Uttley (“the husband”). As I said in my brief reasons expressed earlier today, it was not surprising that the husband was not present, but it was surprising that the wife was not present. The matter was listed to commence at 9.30am, the wife was not present, and I held the matter until sometime after 10.00am. At that time the wife was still not present, and in those circumstances the matter was called on, and I dismissed the appeal.
Later in the morning the wife appeared, and the matter has now been recalled. The wife tells me that she was stuck in traffic, and that was why she was not able to be here when the matter was called on earlier. She also tells me that she tried to telephone the court, but no one answered the telephone. In the circumstances, I am prepared to revisit the matter and rescind my earlier order, and proceed with the hearing of the appeal.
Pausing there, I have heard submissions from the wife in support of the appeal, and I am prepared to proceed today in the absence of the husband. I outlined in my earlier reasons expressed today the situation in relation to the husband and, in summary, neither he nor anyone on his behalf appeared in this matter when it was initially called on, on 12 December 2016. There was some confusion about whether he was represented at that time or not. Subsequently, it was ascertained that his solicitors were no longer acting for him, and he had moved to the United Kingdom.
In mid-January the Appeal Registrar wrote to the husband at the address that was provided by his former solicitors, advising him of the adjournment of the appeal, that it would be listed today, and he was invited to file a Notice of Address for Service. I indicate that he has not done that, and in that letter he was also advised that if he did not attend the hearing on 1 March 2017, or he was not represented, the court may make orders without further notice to him. He has not appeared today, and there is no-one who has appeared on his behalf. In the circumstances, I am prepared to hear and determine the appeal today.
To repeat, the appeal is against orders made by Judge Riley on 23 September 2016 which are as follows (including relevant notations):
1. The wife do all things and sign all necessary documents to withdraw and discontinue the following proceedings:
a. divorce proceedings HMP number … of ….;
b.Harassment and Dowry Prohibition Act case number …. of …. IPC …, …, …, s..,.; and
c.any other suit or action arising out of the marriage between the parties (“the Indian matrimonial proceedings”).
2. The amended application of the husband filed on 21 September 2016 be otherwise dismissed.
AND THE COURT NOTES THAT:
A. The divorce order made on 5 July 2016 will become absolute on 24 September 2016.
B. The wife asserts that the Indian matrimonial proceedings have been withdrawn.
C. The wife consents to the husband producing this order to any court or tribunal as evidence of the wife’s consent to the discontinuance or withdrawal of the Indian matrimonial proceedings.
It is specifically paragraphs 1 b and 1 c of the orders made by her Honour which the appellant wife appeals against. She also seeks to appeal against, certainly, note C to her Honour’s order but also, it seems, against note B to that order. I have explained though, that an appeal can only be against orders, and notes, or notations to orders, are not orders, thus it is not possible for the wife to appeal either note C or note B.
In any event, I have clarified with the wife that there is in fact no problem with note B, and subject to her appeal being successful in relation to certainly paragraph 1 b of the orders, there would be no difficulty with note C remaining. Turning then to the appeal against paragraph 1 b.
What was before her Honour on that day was primarily the wife’s divorce application. The husband had opposed that application, and the matter was listed for hearing on that basis before her Honour. According to the transcript, Mr Stanley, who appeared for the husband, sought that the matter be stood down to enable the parties to negotiate and hopefully resolve the issue in dispute. I note that the wife was not legally represented on that day, but her Honour allowed the parties to talk, and when the matter was called back on, Mr Stanley announced that the matter had resolved. There were written minutes of order that Mr Stanley tendered to her Honour and sought be made the subject of consent orders.
In the course of providing that minute of order to her Honour, Mr Stanley said this:
MR STANLEY: There’s one matter that I indicated in negotiations that I would raise with your Honour.
HER HONOUR: Yes.
MR STANLEY: That is that the wife has indicated that in the context of the 2010 proceedings, she did make a statement to the police. That matter, it is understood, is in the hands of the police, and the wife has indicated she doesn’t have control over it. So that is understood, your Honour, and I say that in open court.
HER HONOUR: Yes, all right.
MR STANLEY: I said that I would.
(Transcript 23.9.2016, page 4, lines 28 – 40)
I will not quote the balance of the transcript, but effectively what happened thereafter is that her Honour asked the wife whether she agreed to the orders that were to be made, and whether she understood them, and the wife indicated “yes”, she both understood and agreed with the orders, and her Honour then made them. The problem, though, is that in the minute of order, paragraph 1 b is directly inconsistent with what Mr Stanley advised her Honour of in what I have just quoted. Subparagraph 1 b, as can be seen from the order, provides for:
1.The wife do all things and sign all necessary documents to withdraw and discontinue the following proceedings:
…
b. Harassment and Dowry Prohibition Act case number …. of …. IPC …, …, …, s..,.; and
…
The difficulty is that they are the precise proceedings that Mr Stanley, at the request of the wife, advised her Honour that the wife could not do anything about. That is the inconsistency, and for the wife’s part, although she indicated to her Honour that she understood and agreed with the orders, she of course, being without legal representation, did not pick up that inconsistency. Accordingly, she appeals on the basis that that is an error, and in my view, it is. Her Honour should never have made order 1 b, having been informed by Mr Stanley of the wife’s position in relation to that, and it being understood that that was also the husband’s position, namely the wife has no control over those proceedings. They are police proceedings, so called, and as I say, the wife cannot withdraw them or discontinue them.
Thus to that extent the appeal should be allowed.
The appeal is also against order 1 c. Now, in my view that is in a different category. In other words, it is not caught by the comment that Mr Stanley made to her Honour. There is no obvious inconsistency between paragraph 1 c and what Mr Stanley advised her Honour of. Having discussed that further with the wife, it seems that if there is a slight amendment made to her Honour’s orders, there would then be no problem with paragraph 1 c, and in any event, that slight amendment would be necessary if I was to set aside paragraph 1 b. Otherwise 1 c would, frankly, not make any sense.
Thus, although I am not persuaded that there is any appealable error by her Honour in making paragraph 1 c, to repeat, as a result of being persuaded that there is an error in relation to paragraph 1 b, there needs to be an amendment made to the orders which would then make paragraph 1 c read more logically and sensibly.
In conclusion, I propose to allow the appeal insofar as it appeals against paragraph 1 b of the orders made by her Honour. I propose to set aside order 1 b, and in light of what I have just said in relation to paragraph 1 c, what I would also do is, at the commencement of paragraph 1 c, add the words “save and except for”, and amend the numbering of that paragraph to become 1 b.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 1 March 2017.
Associate:
Date: 4 April 2017
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