Waldon and Kipley-Waldon (No. 3) - [2014] FamCA 728

FAMILY COURT OF AUSTRALIA

WALDON & KIPLEY-WALDON (NO. 3)

[2014] FamCA 728

FAMILY LAW – PRACTICE AND PROCEDURE – POWER TO REVIEW FINAL ORDER – application for trial judge to review a final determination – dismissed

FAMILY LAW – COSTS – application for costs, indemnity costs and security for costs.

Family Law Act 1975 (Cth) ss 79A, 94 and 117
Family Law Rules 2004 (Cth) r 21.02

Bartsch & Redman (2014) FLC 93-584
Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage (2013) FLC 93-544
Rayburn & Pritchard (2014) FLC 93-573

APPLICANT:

Mr Waldon

RESPONDENT:

Ms Kipley-Waldon

FILE NUMBER:

HBC 246

of 2012

DATE DELIVERED:

14 August 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

4 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Tony FitzGerald

SOLICITOR FOR THE RESPONDENT:

FitzGerald & Browne

Orders

BY DETERMINATION and pursuant to the Family Law Rules 2004 (Cth) the time for filing the application by Ms Kipley-Waldon (‘the former wife’) for costs is extended to enable the determination of the application filed on 8 July 2014.
BY CONSENT and pursuant to the Family Law Rules 2004 (Cth) the time for filing the application and amended application made by Mr Waldon (‘the former husband’) filed on the 17 June 2014 and amended 25 July 2014 is extended to the date of their filing.
BY DETERMINATION the former husband’s applications filed 17 June 2014 and amended 25 July 2014 are dismissed.
BY DETERMINATION the former husband is ordered to pay the legal costs of the former wife:-
(a)being costs of the substantive proceedings (constituted by the application of the former husband filed 25 March 2013 and as amended by his application filed 25 July 2013 and as determined by order made 19 May 2014);
(b)being costs of the interlocutory proceedings constituted by the applications filed by the former wife on 13 June 2014 and 8 July 2014 and the former husband’s applications filed on 17 June 2014 and amended 25 July 2014; and
(c)such costs to be assessed and/or determined on a party/party basis.
BY DETERMINATION the interlocutory consent order made 7 February 2014 in respect of the money held by McCulloch & Associates and the injunction contained in order 1(b) of those orders is dismissed.
BY DETERMINATION and consequent to the preceding order, the parties shall sign all documents and authorities within 28 days of the date of this order to authorise McCulloch & Associates to account to the former husband for the balance of the proceeds of sale of property R Street, Suburb A being one hundred thousand dollars ($100,000.00) (plus accrued interest).
All other extant applications are dismissed.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldon & Kipley-Waldon (No. 3) has been approved by the Chief Justice pursuant to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FamCA 728
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the former husband to review and set aside orders made by the Family Court on 19 May 2014, which had summarily dismissed his substantive application to set aside consent property orders made on 5 January 2012. The parties, born in 1948, married in 1971, separated in 2009, and their marriage was dissolved in 2012. The former husband's initial application in March 2013 was unclear, but after obtaining legal advice, he sought to set aside the 2012 consent property orders and have property issues determined. The former wife sought summary dismissal of these proceedings, arguing they had no reasonable likelihood of success and were frivolous or vexatious, which the Court granted on 19 May 2014.

The primary legal issue before the Court was whether it possessed the jurisdiction to review or set aside its own decree of 19 May 2014. The former husband contended that such power existed. The Court also had to consider the former husband's subsequent applications, filed out of time, which sought to vacate the 19 May 2014 orders, have the original consent property orders set aside, and address various other matters including the release of funds, costs, security for costs, and the expedited hearing of property proceedings with specific valuations.

The Court reasoned that the orders of 19 May 2014 were final orders dismissing the former husband's substantive application, not property orders themselves. Section 94 of the *Family Law Act 1975* provides a right of appeal from a decree of a single judge exercising original jurisdiction. However, the Court found that the orders of 19 May 2014 were not appealable under s 94 as they were not property orders. The Court determined that it lacked the legislative or other power to consider the husband’s application to review and set aside or vary the 19 May 2014 orders, as his substantive proceedings had been brought to an end by that dismissal, save for reserved matters of costs and interlocutory orders.

Orders

Orders of the court

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Background

Background to the litigation

The former husband relied upon:-a)his applications in a case filed 17 June 2014 and amended application filed 25 July 2014;b)the reasons and orders of the substantive proceedings of 19 May 2014;c)interlocutory order made 7 February 2014; andd)his affidavits filed 17 June 2014 and 25 July 2014.Background The parties were both born in 1948. They married in 1971, separated in 2009 and their marriage was dissolved by an order made in April 2012, which became absolute in May 2012. There are no children of the marriage under the age of eighteen years. On 25 March 2013 the former husband filed a substantive application in the Family Court seeking orders under Part VIII of the Family LawAct 1975 (“the Act”). The initial application was prepared by the former husband who was representing himself. It was difficult, if not impossible, to discern from the words contained in that application precisely what orders and/or relief the former husband sought. Fortunately, the former husband sought legal advice and on 25 July 2013 orders were sought to set aside consent property orders made 5 January 2012 and a determination of the property issues. The former wife opposed that application and sought summary dismissal of the former husband’s proceedings. The former wife contended that there was no reasonable likelihood of success and that the husband’s application was frivolous or vexatious. The wife’s application was successful and the husband’s proceedings were summarily dismissed on 19 May 2014. Jurisdiction of the Court to ‘review’ its 19 May 2014 Order The former husband claimed that the Court had power to review its 19 May 2014 decree. Accordingly, the first question the Court had to determine was whether it had power to set aside and/or review that decree. Section 94 of the Act provides a right of appeal from a decree of a single judge of the Family Court exercising original jurisdiction under the Act. The substantive application made by the former husband (which was dismissed) was to set aside the consent property orders made between the parties on 5 January 2012. That substantive application was made pursuant to s 79A(1)(a) of the Act. The Act empowers the Court[1] to set aside orders altering property interests under the Act in certain circumstances. [1] Section 20 defines the ‘Court’ as meaning the Family Court of Australia. The orders of the 19 May 2014 were not property orders; they were final orders (albeit determined summarily) dismissing the s 79A(1)(a) application. As such, except for those limited matters that the Court had reserved in regards to cost and interlocutory orders, the husband’s substantive proceedings were at an end. In his application in a case and his amended application in a case, the former husband made various assertions as to the conclusions reached by this Court in determining the summary dismissal application. Those submissions were voluminous and at times it was difficult to discern precisely why the orders ought to be set aside. However, that was not my initial task. I needed first to identify the legislative or other power upon which I could consider the husband’s application to review and set aside or vary the 19 May 2014 orders.

Evidence

Evidence Before The Court

The former husband filed an application (out of time) on the 17 June 2014 and filed an amended application on the 25 July 2014. He relied upon the amended application seeking orders that:- a)this Court review its determination made on the 19 May 2014 and set aside or vacate those orders, and (presumably) that once that occurred the property orders made 5 January 2012 be set aside; b)funds held in trust totalling $100,000 (plus accumulated interest) be released to him (this was in essence a consent order, subject to the wife seeking to have either $20,000 or $30,000 retained as security for costs);c)that there be no costs order in favour of the former wife and that she pay his legal costs of the substantive application. The orders sought in the Applicant's amended application are difficult to discern. It states, in essence, that the parties bear their own costs, except for the costs of the Applicant's representation for a limited period of time when he was represented by John Munro. d)security for his costs;e)an expedited hearing of the then property proceedings between the parties; andf)the Court directs that a financial statement of the respondent’s retirement superannuation plan be presented to the Court and there be valuations of a home unit property at Suburb B together with another valuation of a property in Hobart. The Evidence The former wife relied upon:-a)her applications in a case filed 13 June 2014 and 8 July 2014;b)the reasons and orders of the substantive proceedings of 19 May 2014;c)interlocutory order made 7 February 2014;d)her response (filed 1 August 2014) to the former husband’s application in a case;e)her affidavits filed 13 June 2014, 8 July 2014 and 30 July 2014;f)her financial statement filed 1 August 2014; and g)the affidavit of Mr FitzGerald filed 8 July 2014. The former husband relied upon:-a)his applications in a case filed 17 June 2014 and amended application filed 25 July 2014;b)the reasons and orders of the substantive proceedings of 19 May 2014;c)interlocutory order made 7 February 2014; andd)his affidavits filed 17 June 2014 and 25 July 2014.Background The parties were both born in 1948. They married in 1971, separated in 2009 and their marriage was dissolved by an order made in April 2012, which became absolute in May 2012. There are no children of the marriage under the age of eighteen years. On 25 March 2013 the former husband filed a substantive application in the Family Court seeking orders under Part VIII of the Family LawAct 1975 (“the Act”). The initial application was prepared by the former husband who was representing himself. It was difficult, if not impossible, to discern from the words contained in that application precisely what orders and/or relief the former husband sought. Fortunately, the former husband sought legal advice and on 25 July 2013 orders were sought to set aside consent property orders made 5 January 2012 and a determination of the property issues. The former wife opposed that application and sought summary dismissal of the former husband’s proceedings. The former wife contended that there was no reasonable likelihood of success and that the husband’s application was frivolous or vexatious.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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