Valdo & Samburg (No 2)
[2022] FedCFamC2F 340
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Valdo & Samburg (No 2) [2022] FedCFamC2F 340
File number(s): ADC 2100 of 2019 Judgment of: JUDGE McGINN Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – interlocutory application to set aside final property settlement order – final order made undefended whilst application for appointment of litigation guardian then pending but not determined – loss of opportunity to negotiate – enforcement application – in enforcement application litigation guardian appointment made – test to set aside not satisfied – application dismissed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Law Court of Australia (Family Law) Rules 2021, Rule 10.03
Federal Circuit Court Rules 2001
Cases cited: Allesch v Maunz [2000] HCA 40; 203 CLR 172; 74 ALJR 1206; 173 ALR 648; (2000) FLC 90-033; 26 Fam LR 237
Barbey & Tuttle (2013) FLC 93-534
Lane & Lane [2016] FamCAFC 53
Taylor v Taylor (1979) 143 CLR 1, (1979) FLC 90-674
Stead v State Government Insurance Commission (1986) 161 CLR 141
Division: Division 2 Family Law Number of paragraphs: 90 Date of last submission/s: 22 March 2022 Date of hearing: 22 March 2022 Place: Adelaide Counsel for the Applicant: Mr Lewis Solicitor for the Applicant: Duncan Basheer Hannon Counsel for the Respondent: Mr Lawton Solicitor for the Respondent: Public Trustee (South Australia), Litigation Guardian for the Respondent ORDERS
ADC 2100 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VALDO
Applicant
AND: MR SAMBURG
Respondent
ORDER MADE BY:
JUDGE McGINN
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.That a copy of the reasons of the Court on 28 August 2020 as provided to each of the parties on 22 March 2022 be entered into evidence and marked as Exhibit 1.
2.That paragraph 1 of the Response to an Application in a Case sealed 15 March 2022 be dismissed.
3.That the Application in a Case sealed 3 March 2022 be adjourned to 9.30am on 1 July 2022 for directions as to listing that application for argument and any other directions.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Valdo & Samburg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN
In what is to be viewed as the first tranche of these proceedings, final orders for property settlement were made pursuant to s 90SM of the Family Law Act 1975 (Cth) on 28 August 2020, upon the application of the applicant de facto wife.
Those orders were made in the absence of the respondent de facto husband on an undefended basis. In making those orders, the Court determined the orders were just and equitable within the meaning of s 90SM.
The orders for property settlement, amongst other things, provided for:
(a)payment by the respondent de facto husband to the applicant de facto wife; and
(b)in default of that payment, the sale of the parties’ former home and a division of proceeds.
The second and present tranche of proceedings has come about as the respondent de facto husband resided in the home as at the date of the making of the final property settlement orders and continues to do so at the present time without having made the required payment.
The respondent de facto husband defaulted in the payment required by the orders and in March 2021 the applicant de facto wife brought an application to enforce the payment due to her under the property settlement orders which included the taking of steps to sell the house.
In the course of the second tranche of proceedings the Court has come to appoint a litigation guardian for the respondent de facto husband.
After some trouble, including the making an application by the applicant de facto wife to the South Australian Civil and Administrative Tribunal (“SACAT”) for an administration order in relation to the husband’s affairs and the appointment of the Public Trustee for the State of South Australia (“Public Trustee”) to undertake that administration role, the Public Trustee now fulfils the role of litigation guardian on behalf of the respondent de facto husband, pursuant to orders made in this Court on 20 August 2021 and 1 March 2022.
In answer to the application for enforcement, the Public Trustee as litigation guardian seeks by an interlocutory Application in a Case, that the property settlement order which is sought to be enforced be set aside pursuant to s 90SN(1)(a) of the Family Law Act 1975 (Cth).
In short, the Public Trustee has submitted that the property settlement order of 28 August 2020 was the product of a miscarriage of justice in how those orders came to be made and that the Court need not be concerned with the effect of that order.
The applicant de facto wife says that the respondent de facto husband’s application to set aside the property settlement order should not be an impediment to the order now being enforced as that property settlement order was regularly obtained and regardless of how it was obtained, the final property settlement order represents a result which is otherwise just and equitable and it has not been demonstrated as an order likely to be changed upon a reconsideration of the property settlement question.
The de facto wife says the order has not been shown by the respondent de facto husband as needing to be disturbed even if a miscarriage of justice in how the order was arrived at is established.
In other words, the applicant de facto wife states that “whether undefended then or undefended now,” any reconsideration of the property settlement order on the evidence now presented would arrive at a substantially similar result to that provided by the final property settlement order made 28 August 2020.
The applicant de facto wife also says that the respondent de facto husband bears the burden of establishing that the property settlement order be set aside and that there has been a failure to discharge that burden.
The applicant de facto wife further says that the Application to set aside the order should not prevent the present enforcement of the property settlement order or alternatively the set aside application should be summarily dismissed.
The Public Trustee has said that should the Application for the setting aside of the order not be granted, then an opportunity is required by the Public Trustee before the making of any enforcement orders to make enquiries as to the respondent de facto husband’s financial position and his ability to borrow monies to make payment in favour of the applicant de facto wife.
A Case Outline was provided on behalf of the applicant de facto wife. In that outline, certain matters of law were advanced. Those matters of law were adopted by the Public Trustee.
Oral submissions on behalf of each of the parties were received by the Court on 22 March 2022.
At the end of that hearing, the Court made certain orders so as to provide the parties with an opportunity to consider the authorities of Taylor v Taylor (1979) 143 CLR 1, (1979) FLC 90-674 and Allesch v Maunz [2000] HCA 40; 203 CLR 172; 74 ALJR 1206; 173 ALR 648; (2000) FLC 90-033; 26 Fam LR 237 and the terms of the reasons given on 28 August 2020 when the property settlement order was made.
It was further ordered that if the parties did not wish to avail themselves of an opportunity to relist the matter to make submissions about those cases and/or the reasons of the 28 August 2020 when the property settlement order was made, that judgment in this matter would stand reserved and reasons be published in due course.
A copy of the reasons of the Court of 28 August 2020 were provided to each of the parties.
As those reasons were not otherwise published, a copy of the reasons as provided to the parties will be taken into evidence and marked as Exhibit 1.
Both parties took up the opportunity to consider the authorities referred to at the end of the hearing and each provided the Court with additional written submissions. The last of those submissions were received 11 May 2022.
The application on behalf of the respondent de facto husband to set aside the property settlement orders is specifically agitated on the basis that pursuant to s 90SN(1)(a) of the Family Law Act 1975 (Cth) that there has been “a miscarriage of justice.”
The Application was not agitated on the basis of Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, or on the basis of inherent power (if any) of this Court to set aside or vary it’s orders in circumstances where the order had been made in the absence of a party.
The Application was brought and argued solely on the basis of the statutory power.
There has not been and there is no application for the operation of the property settlement order to be stayed.
The applicant de facto wife has sought to press her enforcement application which has been outstanding since 3 March 2021.
The applicant de facto wife presses her application for enforcement on the basis that the application to set aside the orders brought by the respondent de facto husband by his litigation guardian should impose no impediment to the enforcement of the property settlement order.
The applicant de facto wife’s position is agitated on the basis that the history of applications for the appointment of a litigation guardian prior to the making of property settlement orders on 28 August 2020 discloses that the Court, despite the Application for the appointment of a litigation guardian having then been brought in the respondent de facto husband’s case in that first tranche of the proceedings, was not persuaded (properly) that such an appointment should have been made on the evidence then available to the Court and that, having been not so satisfied, the Court proceeded to regularly determine the applicant de facto wife’s application for property settlement. In doing so, the Court determined that the orders were just and equitable as between the applicant and the respondent as is required by s 90SM of the Family Law Act 1975 (Cth).
Further, the applicant de facto wife says that no evidence has been produced in this present application which shows that even if the Court had heard from the respondent de facto husband then in August 2020, that a different result would be arrived at with respect to the question of property settlement upon a reconsideration of that issue.
Finally, the applicant de facto wife says that any reservation that may have been subsequently expressed by the Court in August 2021 with respect to the Court proceeding to determine the question of property settlement in August 2020 in the absence of the husband is not relevant to the present application to set aside those orders.
For the purposes of making those submissions, the applicant de facto wife’s counsel in the course of argument on the present applications took the Court through the history of the litigation to 28 August 2020 when the property settlement orders were made. The relevant history is referred to later in these reasons.
The submissions on behalf of the litigation guardian for the respondent de facto husband focused upon the fact that this Court should now consider, looking back, that there was back in August 2020 sufficient material before the Court by at least 20 November 2019 (and following) that should have lead the Court to the view that the competing applications should not have been listed for hearing without a litigation guardian. These submissions continued that it should have come about back then that the Public Trustee should have then been appointed whether by invitation to attend or intervene as a result of an application being made to SACAT by or on behalf of the applicant de facto wife (as has occurred in the present tranche of proceedings).
Whilst that submission was received, its impact is somewhat diminished by the fact that, as noted in the order of 20 August 2021, in the current tranche of these proceedings the Public Trustee declined a request of the Court to act as a litigation guardian for the respondent de facto husband.
Counsel for the litigation guardian emphasised that the need for a litigation guardian was then apparent, and it should have been apparent, to both the Court and the applicant de facto wife by reason of the annexure to the affidavit of the respondent de facto husband’s sister (Ms E) sworn 18 November 2019 (being the report of the respondent de facto husband’s treating psychologist Ms C recommending the appointment of a litigation guardian), whilst at the same time conceding that the appointment of a litigation guardian is a matter for the Court and that the annexure to the sister’s affidavit was not necessarily sufficient for the appointment of a litigation guardian.
The counsel for the litigation guardian also submitted that it was not relevant that the outcome that had been achieved by the orders made by the Court on 28 August 2020 “were in the range” of what might be considered a just and equitable property settlement under s 90SM of the Family Law Act 1975 (Cth).
A summary of the relevant history to the litigation of 28 August 2020 is as follows:
(a)on 24 May 2019, the applicant de facto wife filed proceedings seeking orders for property settlement;
(b)on 8 July 2019, the applicant de facto wife came before the Court. The respondent de facto husband appeared in person. The Court ordered the filing of responding documents by the respondent de facto husband, attendance at a financial conciliation conference, mutual informal discovery and consequent inspection, preparation of a draft statement of assets and liabilities, valuations and adjournment for mention to 1 November 2019;
(c)on 2 August 2019, a Notice of Address for Service was filed on behalf of the respondent de facto husband by his then solicitors;
(d)on 20 August 2019, the respondent de facto husband’s responding documents were filed. This material included an affidavit and a Financial Statement affirmed by the respondent de facto husband. Each of the affidavit and the Financial Statement stated to have been prepared by his lawyer. The affidavit and, presumably, the Financial Statement, were read over to the respondent de facto husband as he is illiterate;
(e)on 21 August 2019, a joint letter of instruction to an expert valuer was signed by the parties’ solicitors;
(f)on 18 October 2019, an affidavit was filed by the respondent de facto husband’s solicitor as to his health status. This affidavit is understood to be directed to those matters which might be considered for the purposes of s 90SM(4)(e) of the Family Law Act 1975 (Cth);
(g)on 19 November 2019, an Application in a Case was filed by the respondent de facto husband’s sister, Ms E, seeking to be appointed a litigation guardian for the respondent de facto husband. That Application was supported by Ms E’s affidavit of 18 November 2019, which had annexed to it a report from the respondent de facto husband’s psychologist, Ms C;
(h)on 20 November 2019, the Court had counsel for the applicant de facto wife and the respondent de facto husband’s solicitor appear before it. The Court noted that the respondent de facto husband had been referred to a psychiatrist and it was hoped a report might be had (presumably from the respondent de facto husband’s psychiatrist) during the period of the adjournment. The matter was adjourned to 11 February 2020 for consideration of Ms E’s Application in a Case seeking the appointment of a litigation guardian;
(i)on 13 January 2020, the respondent de facto husband’s solicitor signed a Notice of Intention to Withdraw as Lawyer. That Notice was filed on 4 February 2020 by the respondent de facto husband’s then solicitors;
(j)on 11 February 2020, the matter came before the Court. Whilst there was an appearance on behalf of the applicant de facto wife, there was no appearance on behalf of the respondent de facto husband. The Court noted the Application in a Case of 19 November 2019 for the appointment of a litigation guardian was unresolved, that there was no appearance of the respondent de facto husband or his sister, Ms E, (the person seeking the appointment of herself as a litigation guardian), there was no psychiatric report, no opposition by the applicant de facto wife to Ms E being appointed as litigation guardian and that the applicant de facto wife foreshadowed she would be seeking for the proceedings to proceed on an undefended basis if the respondent de facto husband did not engage personally or by his litigation guardian. The Court then ordered the applicant de facto wife’s solicitors to liaise with the proposed litigation guardian as to whether she would pursue her Application for the appointment and directed Ms E to attend personally or by legal representative at the adjourned hearing on 14 May 2020 unless her Application was withdrawn;
(k)on 14 May 2020, the Court listed the proceedings for an undefended hearing on 28 August 2020 and directed the filing of a Case Outline document. The Court also ordered that the applicant de facto wife personally serve the order of 14 May on both the respondent and the proposed litigation guardian, Ms E, and for an Affidavit of Service to be filed by 14 August 2020;
(l)on 20 May 2020 the respondent de facto husband was served with the orders of 14 May 2020;
(m)on 21 May 2020, the proposed litigation guardian, Ms E, was served with the order of 14 May 2020; and
(n)on 28 August 2020, an undefended hearing proceeded and resulted in the final property settlement orders. Before making those orders, the Court delivered reasons.
In the reasons of 28 August 2020, the Court variously held, amongst other things, that the Court:
(o)was satisfied that the respondent de facto husband was “on notice” about the proceedings;
(p)the Application by Ms E for a litigation guardian was made in circumstances where there were significant concerns that had been raised with respect to the mental and physical health of the respondent de facto husband;
(q)that the Application for an appointment of the litigation guardian had “never been disposed of”[1];
(r)that “out of an abundance of caution”[2] and at the urging of the applicant de facto wife’s counsel, a check was made as to whether the respondent de facto husband or Ms E may have been attending the hearing electronically. Such a check revealed that neither were so attending;
(s)the Court proceeded to determine the applicant de facto wife’s Application for property settlement and costs; and
(t)in relation to the Application for costs, it was held whilst concerned “about the conduct of the respondent [de facto husband] in these proceedings, understanding that his mental and physical health is significantly compromised”[3] that no order for costs be made.
[1] Exhibit 1 at [8].
[2] Ibid [12].
[3] Ibid [39].
Having identified those passages in the Court’s reasons of 28 August 2020, this Court now turns to the submissions made by the Public Trustee that the orders of 28 August 2020 were a miscarriage of justice in how the property settlement order of 28 August 2020 came to be made.
The Public Trustee emphasises in the course of his learned submissions that the Application for a litigation guardian of 19 November 2019 had not been disposed of and that the material filed in support of that Application - particularly in the form of the report from the respondent de facto husband’s psychologist – made apparent a lack of capacity to conduct the proceedings and that notice of the proceedings and the respondent de facto husband’s previous participation in the proceedings (albeit through his solicitor) should not have been sufficient to redress that apparent lack of capacity. Hence, so the submission runs, the Court proceeding in the way it did on 28 August 2020 constitutes a miscarriage of justice.
As of August 2020, there had been no determination that the respondent de facto husband needed a litigation guardian.
The Public Trustee, however, says that the subsequent determination of the Court in the second tranche of proceedings (made by the same Judge who conducted the first tranche of the proceedings for property settlement) of 20 August 2021 that the respondent de facto husband required a litigation guardian is relevant.
On 20 August 2021 (nearly 12 months after the final property settlement proceedings took place), the Court remarked that the evidence of the respondent de facto husband’s treating psychologist and general practitioner lead the Court to express “grave reservations” as to having dealt with the property settlement matter on an undefended basis.
However, and importantly, the Court by 20 August 2021 had had the respondent de facto husband appear before it on 9 March 2021, 5 May 2021 and 17 August 2021 which appearances the Court was entitled to bring to account in making its determination of the need for a litigation guardian.
The reading of the Court’s reasons of 20 August 2021 make it plain that it was the circumstances of those appearances that led the Court of its own motion to deem it appropriate for a litigation guardian to be appointed for the respondent de facto husband and after the Public Trustee declined the then request of the Court to act as litigation guardian for the respondent de facto husband.
The argument on behalf of the Public Trustee is that if a determination had been made either at or prior to the undefended hearing of August 2020, the Court would have determined that the respondent de facto husband could only have participated by his litigation guardian in the proceedings.
A person who needed a litigation guardian was, at the relevant time of August 2020, identified by the Federal Circuit Court Rules 2001 Rule 11.08(1). That sub-rule provided:
11.08 Person who needs a litigation guardian
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
Rule 11.11 of the Federal Circuit Court Rules 2001 vests in the Court a discretion as to the appointment of a litigation guardian. However, and, in this context, more importantly the consent of a litigation guardian is required for such an appointment to be made.[4]
[4] Federal Circuit Court Rules 2001, R 11.11(2).
The cessation of the husband’s sister’s participation in the first tranche of the proceedings at least carried the implication that consent was absent.
Thus, it was open to the Court to proceed on 28 August 2020 on an undefended basis without granting the interlocutory application for the appointment of a litigation guardian.
In proceeding on an undefended basis, the Court did not determine the competing property applications by default but by undertaking the making of necessary findings and determinations by the Court in making orders under s 90SM of the Family Law Act 1975 (Cth).
In the Court having proceeded on an undefended basis left open to the respondent or those who might come to act on his behalf, to apply to the Court to seek to set aside or vary the order for property settlement.
In Taylor v Taylor (1979) 143 CLR 1, (1979) FLC 90-674, the High Court held that both superior and inferior Courts have an inherent power to set aside an order made against a person who did not have a reasonable opportunity to present his or her case.[5]
[5] Taylor v Taylor (1979) 143 CLR 1, (1979) FLC 90-674 per Gibbs J at 78,591; Stephen J concurring with Gibbs J; Mason J at 78,596; Murphy J at 78,598-9; Aickin J at 78,599.
Such a circumstance is to be understood as falling within the type of ground set fourth for the setting aside of property settlement orders pursuant to ss 79(1)(a) and 90SN(1)(a).[6]
[6] Allesch v Maunz [2000] HCA 40; 203 CLR 172; 74 ALJR 1206; 173 ALR 648; (2000) FLC 90-033; 26 Fam LR 237 at [25-28] per Gaudron, McHugh, Gummow and Hayne JJ; Kirby J at [45].
However, to seek to set aside or vary an order, two criteria must be satisfied:
(a)that the absence of the party at the hearing can be reasonable explained. The type of explanation has been variously described as:
(i)there was no reasonable opportunity to present his/her case[7];
(ii)where absence of the party is due to no fault on his or her behalf[8];
(iii)where the absence is excusable[9];
(iv)there exists an explanation reasonable in the circumstances that can be provided for default or absence[10]; and
(b)that a different result would be achieved on a rehearing or the rehearing would not work an irremediable justice to the other side.[11]
[7] Taylor v Taylor per Gibbs J at 78,591.
[8] Ibid per Aickin J at 78,599; per Mason J at 75,896.
[9] Ibid per Murphy J at 78,589.
[10] Allesch v Maunz per Kirby J at [48].
[11] Ibid per Gaudron, McHugh, Gummow and Hayne JJ at [28]; Kirby J at [48].
The latter criteria identified at (b) in the previous paragraph has sometimes been recognised as constituting two separate criteria in the context of considerations arising under setting aside pursuant to Rules of Court.[12]
[12] Barbey & Tuttle (2013) FLC 93-534 at [90].
In the circumstances of this matter, this Court says it cannot be inferred that at the time of the undefended property settlement hearing that on the balance of probabilities that the respondent husband was to be understood to have been under an incapacity to understand the nature and possible consequences of the proceedings and/or was not capable of adequately conducting or capable of giving instruction for the conduct of the proceedings.
The inference on incapacity does not arise because the Court was awaiting the provision of the psychiatrist report (as noted in the order of 20 November 2019) and that the application for the appointment of the litigation guardian was appearing to have been abandoned.
Further, it appears the Court did not consider it appropriate to proceed on its own motion to seek to appoint a litigation guardian and there was no application agitated by the applicant de facto wife for a litigation guardian.
Moreover, as the applicant de facto wife has correctly submitted, there then applied a presumption of competence for litigants of age. This Court considers that in the absence of the anticipated psychiatrist’s report that the presumption can be regarding as then applying.
The affidavit of Ms F, legal officer at the Public Trustee’s office, of 11 March 2022 sets out a number of matters. That affidavit refers to the Court’s order of 20 August 2021, records that Ms F cannot elicit evidence from the respondent de facto husband in or about March 2022 and annexes a letter from the respondent de facto husband’s then solicitors to the respondent de facto husband of 13 January 2020. That letter, amongst other things, records that the respondent de facto husband had himself requested and directed that his general practitioner not prepare a report for, or communicate with, his then solicitors.
The husband’s decision, and presumed capacity to make a forensic and medical decision objected to his general practitioner in or about does not necessarily mean that the requisite capacity to conduct litigation is present. However, it is a matter that discloses a capacity to decide whether to progress or participate in proceedings at all.
This event would suggest that the de facto husband himself impeded the progress of any appointment of litigation guardian.
At the hearing on 28 August 2020, the Court made findings about notice.[13]
[13] See Exhibit 1 at [10] and [13].
It has to be acknowledged that notice of proceedings by correspondence or service only creates an opportunity to be heard if the notified party has the ability to take up the notified opportunity.
To borrow, with the greatest respect, from the judgment of Gibbs J in Taylor v Taylor,[14] the opportunity that is provided must be both to “appear and present” a case [emphasis added].
[14] (1979) 143 CLR 1, (1979) FLC 90-674, at 78,591.
However, the inferences and presumption referred to above negate any inference that the Court in August 2020 having made findings about notice needed to go further then make a positive finding of capacity.
The retrospective “grave reservations” expressed by the Court on 20 August 2021 do not displace the inference of competence that existed at the time of the property settlement hearing in August 2020 and cannot be taken to constitute a revision of any position about the capacity of the de facto husband’s adopted by the Court at the time of the property settlement trial.
The applicant de facto wife has submitted that there is no evidence before the Court to show that the respondent failing to appear and present his case on 28 August 2020 was on account of him lacking capacity to then conduct the proceedings.
The Court considers that on the evidence presently before it, that it had not been demonstrated that as of 28 August 2020 when the property settlement was ordered, that the respondent de facto husband was lacking capacity so as to be unable to participate as best he then could in the proceedings.
Hence, this Court finds that on the evidence presently before it, that the respondent de facto husband cannot show that he could not have attended or participated (even to a limited extent) in the proceedings of 28 August 2020.
If this Court is wrong about the appropriateness of the determination of the property settlement proceedings on an undefended basis in August, 2020, then this Court considers that it has not been and, on the respondent’s case, has not sought to be, demonstrated that the alleged miscarriage would influence the outcome of the litigation[15] or, to put it another way, that a different result would be achieved on a reconsideration of the property settlement applications.
[15] Lane & Lane [2016] FamCAFC 53 at [38].
The respondent de facto husband’s case was that it need not be demonstrated and no submission was made demonstrating the likelihood of a differing result with respect to the question of property settlement.
The respondent de facto husband’s submission that even if the trial Judges determination was within the range of outcomes that the loss of opportunity to settle the proceeding on terms that might otherwise have been available to a litigation guardian for the respondent is in itself a “materially different result”.
This Court disagrees.
In the context of the rules of natural justice (of which procedural fairness is one component) the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 said at page 145:
“That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural trust as at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.”
Further at page 147 in Stead v State Government Insurance Commission it was said:
“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court find that a properly conducted trial could not possibly have produced a different result.”
The applicant de facto wife submitted that the orders made in August 2020 were just and equitable and within the range of outcomes that were to be reasonably expected.
With respect, it can be seen that the Court’s reasons of 28 August 2020 demonstrate, that:
(a)an order for property settlement was to be made on account of the breakdown of the parties’ relationship;
(b)that there were findings about the extent of the property of the parties;
(c)that there was an identification and an assessment of the respective contributions made by the parties;
(d)that there were findings about an assessment of s 90SM(4)(e) of the Family Law Act 1975 (Cth) factors; and
(e)a determination as to what orders were just and equitable.
Thus, it can be seen that the Court undertook all of the necessary considerations in making the property settlement orders.
In the absence of being taken to material by the respondent de facto husband that would or might be introduced at a reconsideration of the matter, the respondent has not demonstrated that materially different result would come about.
A loss of the opportunity to negotiate prior to trial as referenced in the respondent’s written submission does not in this Court’s view constitute material that leads to the view a materially different result favourable to the respondent would come about. Negotiations or the ability to conduct them are not matters which would, without more, be expected to have come before a Court determining at trial an application for property settlement or to have affected the Court’s conduct of the trial or its determination.
The Court cannot be satisfied that the second of the criteria for the setting aside of the order can, at this time, be made out.
It has not been demonstrated that a different order would likely result in a rehearing.
In all of the circumstances, this Court finds that:
(a)the failure to appoint a litigation guardian and to hear from such a litigation guardian at the hearing on 28 August 2020 did not constitute a miscarriage of justice; and
(b)that if the failure to appoint a litigation guardian and to hear from that litigation guardian in the property settlement proceedings of August 2020 had constituted a miscarriage by reason of there being a denial of a reasonable opportunity for the respondent de facto husband to present or negotiate his case, that no different result has been demonstrated as likely to occur on a reconsideration.
In all of the circumstances, the Court will dismiss the Response to an Application in a Case sealed 15 March 2022 that seeks an interlocutory order pursuant to s 90SM(1)(a) of the Family Law Act 1975 (Cth).
In dismissing that Application, the Court formally records that the Court does not do so pursuant to rule 10.09 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
As indicated above, the Public Trustee submitted that in the event the Response to an Application in a Case be dismissed, that time will be needed to complete instructions in respect of a Pending Application in a Case sealed 3 March 2021.
The Court considers that that time should be afforded to the litigation guardian.
For the foregoing reasons, there should be orders as set out at the commencement of these reasons.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 13 May 2022
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