Watson & Watson
[2013] FamCAFC 25
•7 March 2013
FAMILY COURT OF AUSTRALIA
| WATSON & WATSON | [2013] FamCAFC 25 |
| FAMILY LAW – APPEAL – Application and scope of discretionary rule not to hear an application by a party in breach of orders – Where the Federal Magistrate dismissed the husband’s s 79A application on the basis that the husband was in contempt – Where the husband’s contempt was in relation to costs orders in earlier proceedings concerning child support – Whether the husband’s contempt was in the “same proceeding” or the “same cause” as s 79A application –Whether the Court had a discretion not to hear the s 79A application when contempt occurred in relation to separate proceedings – Error of law – Appeal allowed and proceedings to be remitted for re-hearing – Costs certificate awarded. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Fahmi and Fahmi (1995) FLC 92-637 Hadkinson v Hadkinson [1952] P. 285 Kiefer & Kiefer [2008] FamCAFC 197 Short v Short (1973) 7 SASR 1 Sparkes & Eberle [2000] FamCA 2146 Young v Jackman (1986) 7 NSWLR 97; 11 Fam LR 331 |
| APPELLANT: | Mr Watson |
| FIRST RESPONDENT: | Ms Watson |
| SECOND RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | BRC | 8994 | of | 2007 |
| APPEAL NUMBER: | NA | 105 | of | 2011 |
| DATE DELIVERED: | 7 March 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Murphy and Kent JJ |
| HEARING DATE: | 21 February 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1526 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Watson in person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Fleetwood |
| SOLICITOR FOR THE FIRST RESPONDENT: | Melvin & Co. |
| FOR THE SECOND RESPONDENT: | No appearance |
Orders
The appeal be allowed.
The orders of Federal Magistrate Coates made on 30 November 2011 be set aside.
The husband’s initiating application filed 12 October 2010 be remitted for hearing by a Federal Magistrate in the Brisbane Registry of the Federal Magistrates Court, other than Federal Magistrate Coates.
The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant husband for the disbursements, being out of pocket expenses which would have been recoverable had he been legally represented, incurred by him in relation to the appeal against the orders of Federal Magistrate Coates made on 30 November 2011.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson & Watson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 105 of 2011
File Number: BRC 8994 of 2007
| Mr Watson |
Appellant
And
| Ms Watson |
Respondent
REASONS FOR JUDGMENT
Strickland and Kent JJ
Introduction
By Amended Notice of Appeal filed on 30 April 2012 Mr Watson (“the husband”) seeks leave to appeal against orders made by Federal Magistrate Coates on 30 November 2011. Ms Watson (“the wife”) opposes the application for leave and if leave is granted, the appeal.
We observe that leave to appeal is in fact not required here. The orders sought to be appealed against are final orders, and thus the husband is able to appeal as of right and we have heard the matter on that basis.
On 20 November 2011, at the commencement of the trial of the husband’s application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside consent orders made in property settlement proceedings on
6 September 2001 the wife, by her counsel, contended that the discretionary rule that a party in contempt may not be heard was operative, and that the Federal Magistrate ought exercise the discretion to exclude the husband from participation in the proceedings.
The foundation for the wife’s contentions that the husband was in contempt and that the discretionary rule was operative, was identified as the husband’s failures to comply with previously made orders of Federal Magistrates in earlier proceedings concerning child support for the husband to pay costs to the wife. On 3 September 2007 Jarrett FM, in granting leave to the husband to discontinue his then application for departure from child support assessment ordered that the husband pay the wife’s costs of that application fixed in the sum of $2,000, within 60 days. On 23 September 2010, Simpson FM in dismissing the husband’s then appeal against a decision by the Social Security Appeals Tribunal concerning child support ordered that the husband pay the wife’s costs of that proceeding fixed in the sum of $1,000 within six months.
It was not in issue before the Federal Magistrate that the costs orders referred to had been made; or that the husband had not appealed them; or that he had not complied with them.
The Federal Magistrate refused the husband’s oral application to adjourn the proceedings to enable him to research the basis of the contentions of the wife and be in a position to provide an informed response, and acceded to the wife’s application that the husband not be permitted to participate in the proceedings.
The Federal Magistrate then proceeded to determine the proceedings by treating the wife’s response as undefended and made orders including an order dismissing the husband’s application under s 79A of the Act, and an order for costs against the husband.
Relevant Background
The parties married in 1991; separated on a final basis in 2000; and were divorced in 2002. Their only child together, a son, was born in 1991 shortly prior to the parties’ marriage. The son, who attained his majority in 2009, continued to reside with the wife post-separation.
On 6 September 2001, final orders for property settlement under s 79 of the Act were made by consent. As already noted it is those consent orders which were the subject of the husband’s s 79A application.
The husband’s case outline filed 28 November 2011 for the purposes of the trial before the Federal Magistrate summarises his essential contentions in relation to his s 79A application. They included, in summary, that his $500,000 inheritance prior to marriage overwhelmingly financially contributed to the assets of $380,000 ultimately available for distribution; that the consent orders had the effect of apportioning 85 per cent of the available assets to the wife; and that the parties agreed upon that apportionment on the common understanding that the wife was receiving property to extinguish any future liability of the husband for child support. The husband further contended that the wife failed to disclose earnings, and thus failed to disclose her true financial position accurately, as at the time the consent orders were made.
Because over the years since the consent orders were made the husband has been assessed to pay child support and there have been active steps taken both by the wife and the Child Support Registrar to recover child support payments from the husband, and he has paid some child support, the husband contended by his s 79A application that there was a miscarriage of justice in the making of the consent orders and that they ought be set aside with property orders being re-determined.
The husband has continued to maintain in all dealings with the Child Support Agency, including via administrative and court proceedings, that the consent orders made on 3 September 2001 extinguished any liability of his for child support.
It is unnecessary for present purposes to detail the complete history of administrative processes and court processes dealing with issues of child support since the consent orders were made, although it is relevant to record that some of those processes involved the husband and the Child Support Registrar as parties, and not the wife.
On 20 October 2010 Federal Magistrate Coates ordered a stay of an enforcement order made on 28 May 2009 pending determination of the husband’s s 79A application. Also, as already referred to, the costs order of Jarrett FM of 3 September 2007 was part of the final determination of the husband’s then application for departure from child support assessment. The costs order of Simpson FM of 23 September 2010 was part of the final determination of the husband’s then appeal from a decision of the Social Security Appeals Tribunal concerning child support.
The Appeal
The husband represented himself in the proceedings below as he did in this appeal.
The husband has no relevant legal qualifications, training or experience. Without being critical of him for that, it is not possible to be comfortably satisfied from the contents of his Amended Notice of Appeal and his Summary of Argument filed on 17 August 2012 that the errors contended for by the husband with respect to the orders and reasons of the Federal Magistrate are identified with precision. Moreover, the contents of the Summary of Argument are not readily reconciled with, in terms of direct correlation, the grounds of appeal appearing in the Amended Notice of Appeal.
In those circumstances, at the commencement of the hearing of the appeal we confirmed with the husband that he sought to agitate two central contentions, with the balance of his grounds of appeal as expressed, and the balance of the content of his Summary of Argument being understood as, matters the husband says are supportive of, or relevant to, one or other of those two central contentions.
The first of those contentions is that the discretionary rule that a party in contempt may not be heard did not arise for consideration by the Federal Magistrate because the husband’s disobedience or contempt was not in the same proceedings or in the same cause as the s 79A application which was before the Federal Magistrate. That is, the earlier costs orders referred to were made in separate proceedings and not the same proceedings as the s 79A application before the Federal Magistrate.
The second contention is that the Federal Magistrate erred in the exercise of his discretion in failing to grant the husband an adjournment to meet the wife’s preliminary application at trial as to the operation of the discretionary rule.
We note that the wife’s Summary of Argument filed on 14 September 2012 addresses those two central contentions. Further, at the commencement of the hearing before us the wife’s counsel tendered an “Addendum” which provided additional submissions as to the first contention.
The Child Support Registrar as named second respondent did not seek to participate or be heard in this appeal as is reflected in a notation to the procedural orders made in the appeal proceedings on 23 April 2012.
It appears that, historically, the second respondent’s involvement in the s 79A application proceedings was brought about by the second respondent being named as a party, or added as a party, by order at an early or interim stage of the proceedings. However on 17 November 2010 an order was made by Spelleken FM excusing the second respondent from participating as a party.
It further appears that the active involvement of the second respondent in the s 79A proceedings was not as a party to them as such, but in an appearance at an interim stage to object to production of documents sought by subpoena. Likewise, the attendance of a legal representative on behalf of the second respondent at the trial on 20 November 2011 was only for the purpose of dealing with a Notice to Produce Documents served by the husband upon the second respondent, rather than the second respondent seeking to participate as a party in the trial. When the Notice to Produce issue was dealt with below the second respondent did not further participate in the trial.
The second respondent’s “interest”, if it may be described as such, in the husband’s s 79A proceedings was confined to its outcome. That is, the operation of an enforcement order made on 28 May 2009 in proceedings concerning child support was, by an order made on 20 October 2010, stayed pending determination of the husband’s s 79A application.
Relevant Law
In Fahmi and Fahmi (1995) FLC 92-637 the Full Court (Ellis, Finn and Brown JJ) considered the question of whether there is any rule which prevents a Court exercising jurisdiction under the Act from hearing, or which confers on the Court a discretion not to hear, an application by a party who is in breach or contempt of earlier orders. Specifically, in that case the question was as to the hearing of an application for dissolution of marriage brought by a husband who had not complied with previous orders for payment of sums by way of child maintenance and property settlement, but the principles identified by the Full Court obviously have general application when a Court is exercising jurisdiction under the Act.
We do not read or interpret the subsequent first instance ex tempore decision of Warnick J in Sparkes & Eberle [2000] FamCA 2146, to which primary reference was made in the proceedings below, and has also been referred to in this appeal, as representing any departure from, or expansion of, the principles identified by the Full Court in Fahmi. However, for reasons which follow we consider that, with respect to his Honour, his specific reference to the Full Court’s discussion in Fahmi at p 82,425 of the judgment of Romer LJ in Hadkinson v Hadkinson [1952] P. 285 may, if applied generally in circumstances materially different to those before Warnick J, be somewhat apt to mislead (we note that there is a typographical error in Warnick J’s judgment referring to Romer LJ as “Reimer LJ” and this error is repeated in the judgment of Coates FM).
In Fahmi, the Full Court carefully traced, by reference to the authorities examined, the history of the rule at common law expressed as “that a party in contempt will not be heard”. The Full Court referenced authorities demonstrating that the scope of the rule’s application from its origin came to be restricted over time. From the position that a person in contempt would not be heard in that or any other proceeding, except if the Court “of special grace suspend the contempt”, importantly the rule came to be restricted by the Court confining its operation to contempt in the same cause or in the same proceedings as that in which the application was made. Further, the Full Court identified the progression from the rule being regarded as a strict rule subject only to specific exceptions to, at least in some jurisdictions, a discretionary rule. That is, as a rule giving rise to a discretion not to hear the party in contempt in the same cause or in the same proceedings as that in which the application was made.
At p 82,425, the Full Court made reference to Hadkinson v Hadkinson [1952] P. 285 as, “the leading modern case in relation to the question of whether a person in contempt will be heard”. As the reasons of the Full Court record, in Hadkinson, the wife had been granted custody of the child of the marriage, but she had been ordered not to take the child out of England. She did so, and the husband obtained an order requiring the wife to return with the child. The wife appealed against that order and, at the commencement of the appeal, a preliminary objection was taken on behalf of the husband that the wife was not entitled to be heard on the ground that she was in contempt.
As the Full Court noted, all three members of the Court of Appeal upheld the objection, but the plurality of Romer LJ with whom Somervell LJ agreed held that there was a strict rule against hearing a person in contempt (subject only to certain limited exceptions), whilst Denning LJ regarded the matter as discretionary. The Full Court recorded (at p 82,425 – 82,426) the following in relation to the judgment of Denning LJ:
The judgment of Denning L.J. largely comprises a discussion of the history of the rule “that a party in contempt will not be heard”, which was a rule not of the common law but of the ecclesiastical and chancery courts. Following that discussion Denning L.J. concluded:
“…It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance…
…
Applying this principle, I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed. (p. 298.)”
After discussion of further authorities, the Full Court noted at p 82,427:
In light of the above authorities and texts we are satisfied that the rule that a party in contempt may not be heard is a discretionary rule and is limited, at least in its modern operation, to circumstances in which the person in contempt makes an application in the same proceedings or in the same cause in which the contempt has been committed. …
At p 82,428, the Full Court observed:
In the Morgan-Grampian case [referring to X Ltd v Morgan-Grampian (Publishers) Limited & Ors (1991) 1 AC 1], which was a case where a journalist, who refused to comply with an order which would result in revelation of his sources, sought to be heard on appeal against that order, Lord Bridge in considering the question of whether a contemner (sic) can be heard, and having referred to the judgments of Romer L.J. and Denning L.J. in Hadkinson went on to say:
“I cannot help thinking that the more flexible treatment of the jurisdiction is one of discretion to be exercised in accordance with the principles stated by Denning L.J. better accords with contemporary judicial attitudes to the importance of ensuring procedural justice than confining its exercise within the limits of a strict rule subject to defined exceptions. But in practice in most cases the two different approaches are likely to lead to the same conclusion, as they did in Hadkinson itself …” (P. 46.)
Lord Oliver, in agreeing with Lord Bridge, said as follows:
“Whilst, therefore, there must clearly be a strong indication in favour of preserving a litigant’s right to appeal, even though he may be in contempt of court, I am in entire agreement with my noble and learned friend Lord Bridge of Harwich in thinking that there must also be a discretion to refuse to hear the contemnor and in favouring the flexible approach suggested by the judgment of Denning L.J. in Hadkinsonv Hadkinson [1952] P. 285. One can, of course, envisage, as he did in that case, circumstances in which the court would be unlikely to exercise its discretion in favour of hearing a contemnor – he instanced the case of an abuse of the process or of disobedience to the order impeding the course of justice – but I would not be in favour of laying down any rules for the exercise of discretion, though it can do no harm to give examples which may serve as guidelines. For instance, where the appeal is grounded on an alleged lack of jurisdiction to make the order at all, it would seem, in general, right that the contemnor should be heard. At the other end of the scale, if the contempt consisted of a contumacious refusal to reveal the whereabouts of a ward of court, it would be likely to require a strong case before the court would consider entertaining a contemnor’s appeal.”
We have quoted the relevant passages from the judgments of Lord Bridge and Lord Oliver because they make clear that the discretionary approach is now the preferred approach in circumstances where the question arises as to whether or not a person in contempt should be heard when that person seeks to appeal the order in respect of which that person is in contempt. We would respectfully agree that this is the correct approach in the circumstances of an appeal or in other circumstances which can be categorized as being in the same cause or the same proceedings as that in which the order, which is the subject of the contempt, was made.
It can be seen that the Full Court ultimately concluded in favour of the discretionary approach of Denning LJ in Hadkinson, as distinct from the approach of Romer LJ in holding that there was a strict rule against hearing a person in contempt, subject only to certain limited exceptions.
Moreover, as the Full Court noted (at p 84,425) Romer LJ made no reference to the fact that the rule that a person in contempt will not be heard applies only to applications in the same proceedings or cause.
It is for that reason we earlier observed that Warnick J’s specific reference in Sparkes & Eberle to Romer LJ’s judgment may be apt to mislead. It will shortly be discussed, by reference to the reasons for judgment of the Federal Magistrate here, that indeed that may have occurred in this case.
In Fahmi, having examined the scope of the discretionary rule the Full Court discussed the meaning of “same proceedings” in the context of the Act (commencing at p82,428). The Full Court identified that whether an application is in the same proceeding or the same cause is to be determined by reference to the structure and content of the definition of “matrimonial cause” in the Act, the relevant parts of the Act and the Family Law Rules 2004 (Cth) that apply and, ultimately, whether the proceedings may be identified as distinct because of the nature of the relief claimed in them respectively determines that question.
From the detailed discussion by the Full Court in Fahmi of the various authorities referred to, and the express or implicit acceptance of particular statements of principle or approach, the following propositions emerge as to the discretionary rule that a party in a contempt may not be heard when a court is exercising jurisdiction under the Act:
(a)Procedural justice dictates that the fact that a party has disobeyed an order of the Court is not of itself a bar to the party being heard on a subsequent application brought by that party;
(b)In courts exercising jurisdiction under the Act, the rule, when it operates, gives rise to a discretion not to permit a party being heard. That is, unlike other jurisdictions such as New South Wales and South Australia where the rule is to be applied as a strict rule subject to limited exceptions, in this jurisdiction the discretionary approach applies (as to New South Wales see Young J in Young v Jackman (1986) 7 NSWLR 97; 11 Fam LR 331 at 335 referring to the Court of Appeal decision in Permewan Wright Consolidated Pty Ltd v Attorney General (unreported, Court of Appeal, Hutley JA, 11 December 1978); and as to South Australia see per Bray CJ (with whom Mitchell and Jacobs JJ agreed) in Short v Short (1973) 7 SASR 1 at 11);
(c)The rule applies where facts establish disobedience of an order, even though there has been no application for the party to be dealt with for contravention or contempt, and no determination has been made that the party is guilty of a contravention or contempt;
(d)The Court may, in its discretion, refuse to hear a party in breach of an order only if that party makes an application in the same proceedings or in the same cause in which the disobedience of an order has occurred. If the application by that party is not in the same proceedings or in the same cause of action in which the contempt has been committed, no question as to the party in alleged contempt being heard arises;
(e)The question of whether the application is in the same proceeding or in the same cause is crucial and is determined by reference to the structure and content of the definition of “matrimonial cause” in the Act, the relevant parts of the Act and the Family Law Rules 2004 (Cth) that apply and, ultimately whether the proceedings may be identified as distinct because the nature of the relief claimed in them respectively is determinative;
(f)No question as to a party being heard arises:
(i)if that party is defending, rather than bringing, an application;
(ii)on an appeal by the party to set aside the order on which the alleged contempt is founded;
(iii)where a party applies for the purpose of purging the party’s contempt;
(iv)where a party against whom contempt is alleged seeks to be heard on a submission that, having regard to the true meaning and intent of the order which the party is said to have disobeyed, the party’s actions did not constitute a breach of it, or having regard to all the circumstances, the party ought not to be treated as being in contempt.
(g)Where the discretion arises its exercise depends upon the balance between that party’s right to procedural justice, including the right to be heard, and public policy considerations. Those public policy considerations include that if the party’s disobedience is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth, or to enforce the orders which it may make, or the party’s further application constitutes an abuse of process in the circumstances, then the Court is unlikely to exercise its discretion in favour of hearing the party or entertaining the application of the party.
Understood in the light of the Full Court’s analysis in Fahmi the “exceptions” identified by Romer LJ in Hadkinson, on the “strict rule” approach, actually delineate some, but not all, of the instances where the discretionary rule does not even arise for consideration or potential application. On the discretionary approach endorsed by the Full Court in Fahmi, the exercise of the discretionary rule, where it applies, depends upon considerations of the kind expressed by Denning LJ.
Approach of the Federal Magistrate
The Federal Magistrate’s identification and discussion of the applicable law in relation to the discretionary rule appears in paragraphs 5 to 14 of the reasons. Nowhere within that discussion, or elsewhere in his Honour’s reasons, does his Honour identify or address what the Full Court in Fahmi described (at p 82,425) as the “crucial” question, namely, whether the breach of orders or contempt is “in the same cause” or “in the same proceeding” as the subject application.
At paragraph 6 of the reasons his Honour commenced his discussion of authority by reference to the judgment of Warnick J in Sparkes & Eberle which itself is largely confined to the discussion in Fahmi (at p 82,425) of Romer LJ’s judgment, and the exceptions identified by Romer LJ to the rule’s application. At paragraph 13 of the reasons the Federal Magistrate concluded his analysis as follows:
It seems to be that a person could apply for the purpose of purging any contempt, that a person could appear with a view to setting aside the order and as I have quoted from the decision of Warnick J in Sparkes & Eberle, a person against whom contempt is alleged will also of course be heard in support of a submission that, having regard to the true meaning and intent of the order which he is said to have disobeyed, his actions did not constitute a breach of it or that having regard to all the circumstances, he ought not be treated as being in contempt.
We observe that in the articulation by counsel for the wife of the application that the Federal Magistrate apply the discretionary rule, there was no consideration given to the crucial question of whether the husband’s disobedience of orders was in the same cause or in the same proceeding as the application before his Honour.
Counsel for the wife, having identified the earlier orders for costs the husband had not complied with, submitted:
MR FLEETWOOD: … Now, those orders have never been complied with by Mr [Watson]. Your Honour, Sparks & Everly (sic) is authority for the proposition that if a party does not comply with an order of the court, the court has a discretion to exclude that party from participation in the proceedings until there is compliance with that order. And in my respectful submission, that because Mr [Watson] has not appealed these two orders – has not sought to set them aside, has not in any way challenged them, and yet still seeks to be a litigant in this court, he should not be permitted to continue to litigate.
(Transcript 30 November 2011, p 17, line 41 to p 18, line 2)
The subject costs orders were each made in proceedings brought by the husband under either the Child Support (Assessment) Act 1989 (Cth) or the Child Support (Registration and Collection) Act 1988 (Cth). Each of the subject orders were made as part of final orders bringing to an end each of the proceedings in which those orders were respectively made.
The s 79A application before the Federal Magistrate was brought under Part VIII of the Act. It was instituted on 20 October 2010, after the finalisation of both of the respective proceedings in which the subject costs orders were made.
In our view there can be no question that the husband’s s 79A application was a different proceeding or cause of action from the earlier respective proceedings in which the subject costs orders were made. That is, the husband’s disobedience of those costs orders was not in the same cause or in the same proceeding as the s 79A application before his Honour.
The wife’s Summary of Argument for this appeal (at paragraph 21) contains the submission:
The Appellant seems to attempt to argue that the costs Orders arose from different proceedings. However, as conceded by the Appellant, the parties were the same and it seems that the costs Orders arise from the same substratum of facts which at the least were a significant part of the litigation before the Federal Magistrate on 30 November 2011.
With respect, that submission fails to direct itself to the relevant test. True it is that the husband has always maintained, including in the earlier child support proceedings as in his s 79A application, that the consent orders made on 6 September 2001 were intended to extinguish his liability for child support, or at least were agreed upon and consented to on that understanding by both parties. However, the relevant test is not whether “the same substratum of facts” are common to both proceedings, or whether the same or similar contentions are advanced in them. The question requires focus upon the cause of action relied upon and the relief claimed by reference to the relevant parts of the Act or legislation governing those causes of action and claims for relief.
Further, we observe that the addendum submissions presented by the wife’s counsel at the hearing before us also failed to direct themselves to the relevant test. The submission was that “when the grounds supporting (the) Application are scrutinized, the Appellant in reality is seeking a variation or discharge of his child support obligations.”
In both of the child support proceedings in which the subject costs orders were made the husband relied upon the existence of the consent orders made on 6 September 2001 for the contention that he was not liable for child support. That is, essential to his contentions was his upholding or maintaining the consent orders, in support of the agreement he alleges, as evidencing in part that agreement. The relief claimed was departure from the administrative assessment of child support.
In contrast, in the s 79A proceedings the relief the husband seeks is to have the consent orders set aside and for the Court to re-exercise the discretion to make property orders under s 79 of the Act.
Indeed, during oral submissions before us counsel for the wife eventually conceded that the relief claimed was not the same in the two sets of proceedings. However, he found himself unable to then concede the appeal on behalf of the wife.
We find that the Federal Magistrate’s conclusion that the discretionary rule applied in the circumstances here was an error. Consequently the Federal Magistrate erred in making the orders he did and the appeal must be allowed and the orders made by the Federal Magistrate must be set aside.
The adjournment application of the husband
Having found that appealable error attended the Federal Magistrate’s consideration and application of the discretionary rule, and given that the husband’s s 79A application must be remitted for re-hearing, it is strictly unnecessary for us to deal with the other central contention of the husband, that the Federal Magistrate erred in the exercise of his discretion in failing to grant the husband an adjournment. Moreover, given our conclusions, proper application of the discretionary rule would have meant that no occasion for an application for adjournment sought by the husband would have arisen and this too was conceded by the wife’s counsel. However, in the circumstances we wish to make some observations about the Federal Magistrate’s approach once his Honour proceeded, wrongly, on the basis that the discretionary rule applied.
Whilst in his discussion of the legal principles referred to, the Federal Magistrate correctly referred to the rule as discretionary, it is apparent from that discussion and the way in which his Honour applied the rule, that his Honour confused or merged the discretion with the exceptions to the rule’s application. Put another way, his Honour appears to have identified the matters he referred to in paragraph 13 of his reasons as going to discretion, rather than categories where the rule or the discretion has no application or does not even arise for consideration.
It therefore appears that the Federal Magistrate has taken an approach indistinguishable from what may be conveniently described as the “strict rule – exceptions” approach adopted by Romer LJ in Hadkinson which was rejected in this jurisdiction by the Full Court in Fahmi in favour of the discretionary approach of Denning LJ.
That conclusion is fortified by the observation that his Honour’s reasons contain no discussion of any of the discretionary considerations involving a balance of public policy considerations that is necessary even when the discretionary rule applies. That has added impact when it is seen that the Federal Magistrate not only refused to allow the husband to be heard on the application until, for example, he had remedied his breaches, but his Honour immediately proceeded to hear and determine the application, or the wife’s orders sought in her response, on an undefended basis.
That conclusion is also supported by the following exchange which occurred after his Honour had taken an adjournment to consider the authorities, in the course of exchanges with the husband:
HIS HONOUR: It seems to me that the cases say that is (sic) what is occurring is merely a contempt of court orders.
MR [WATSON]: Yes, your Honour.
HIS HONOUR: So what is exceptional or what do you say is not exceptional in this matter, whereby you ought to be allowed to proceed?
(Transcript 30 November 2011, p 25, line 42 to p 26, line 2)
We therefore conclude that in addition to the error in concluding that the discretionary rule had application his Honour erred in his apparent misapprehension as to the nature of the discretion or the manner in which the discretionary rule operates, even when it arises for consideration.
We have already referred to the principle that no question as to a party being heard arises if that party is defending, rather than bringing, an application. The Wife, by her counsel, ultimately advanced an application for an order for the husband to pay the wife’s costs of the s 79A proceedings and the Federal Magistrate acceded to that application, notwithstanding that the discretionary rule had no application in that context. That is, the husband was entitled to be heard on the application for costs advanced by the wife, but he was not given the opportunity.
The transcript of the proceedings below reflects that the hearing of the trial commenced at 10:54am. Some time earlier that morning counsel for the wife provided the husband with a copy of Warnick J’s judgment in Sparkes & Eberle (Transcript 30 November 2011, p 16, lines 30-34).
After counsel for the wife made the oral application that the husband “no longer be entitled to participate in these proceedings”; and outlined what counsel for the wife contended was the applicable law by reference to Warnick J’s judgment, explaining it was an application of Fahmi, and identifying the husband’s disobedience of the previous costs orders, his Honour expressed the intention to stand down so that he might read Warnick J’s judgment (Transcript 30 November 2011, p 19, line 44). The husband then asked whether he would have the opportunity to consult a duty lawyer which his Honour confirmed could occur.
Upon resumption of the hearing of the trial his Honour confirmed with the husband that the husband had consulted a duty lawyer and had read Warnick J’s decision. There was then the following exchange:
MR [WATSON]: …Your Honour, this submission raised by Mr Fleetwood has not been flagged or communicated to anyone before today, despite the application being more than a year old. It is a complex argument and I have advice from Caxton Legal to ask your Honour for an adjournment on the following grounds. That to proceed with Mr Fleetwood’s submission today would constitute a lack of procedural fairness as there was no notice of this submission and as I am a self-represented litigant, in no position to argue this today.
HIS HONOUR: Hold it. Yes.
MR [WATSON]: And I will need time to discover argument.
HIS HONOUR: Yes.
MR [WATSON]: There has been no action on the part of Mr Melvin (a reference to the wife’s solicitor) to enforce those orders, despite one of them being four years old.
(Transcript 30 November 2011, p 21, lines 23-39)
After referring to other orders that he had complied with in relation to child support there was then this exchange:
MR [WATSON]: Yes. Your Honour, if Mr Fleetwood’s submission is successful today, the detriment that would be caused to myself and my wife and my two small children, if he is successful, would be – the detriment would be catastrophic as there is an enforcement order against me and that would then proceed. The amount of that debt of that enforcement order
HIS HONOUR: Well, is that – I’m sorry, I will let you proceed, then I need to ask you a question about that submission, all right.
MR [WATSON]: Thank you, your Honour. I – in this application, I intend to represent and present evidence that that debt is accrued from deceit and misrepresentation by the respondent.
HIS HONOUR: Well
MR [WATSON]: It is also a breach of natural justice and procedural fairness if I am removed from this proceeding from a decision made today. Our financial position is dire, with meagre income and effectively no assets, while the other party earns in the vicinity of $60,000 a year with assets of over half a million dollars. So the submission, your Honour, as advised by Caxton Legal, would be to ask to adjourn so I can find out the best way of dealing with Mr Fleetwood’s submission.
HIS HONOUR: Well, what do you envisage that requires?
MR [WATSON]: Your Honour, that requires me sitting on the internet and finding case law as I have done with the rest of this case that applies and argues (sic) against Mr Fleetwood’s submission.
HIS HONOUR: Well, yes, all right.
MR [WATSON]: …I have no way or (sic) arguing it. If I’m afforded the opportunity to find out and present a rebuttal argument, that would save a lot of time for the court.
HIS HONOUR: I take it, from that submission, that you’re not seeking an adjournment so that you can comply with those orders. You’re seeking an adjournment so that you can meet the arguments.
MR [WATSON]: Yes, your Honour.
(Transcript 30 November 2011, p 23, line 39 to p 24, line 35)
Later there was this exchange:
HIS HONOUR: ...So you seek an adjournment on that basis partly. Why is it that you’ve had – that you seek an adjournment simply because you’ve had no notice of legal argument? Why should I grant that?
MR [WATSON]: Sorry, your Honour would you repeat that?
HIS HONOUR: You’ve had no notice of legal argument. What Mr Fleetwood has put to me
MR [WATSON]: Yes.
HIS HONOUR: is a submission which is really a submission on – in legal terms, legal argument as to what I should do and why.
MR [WATSON]: Yes, your Honour.
HIS HONOUR: Simply because you have not had notice of what the respondent’s case is
MR [WATSON]: Yes.
HIS HONOUR: why do you say I should adjourn?
MR [WATSON]: Your Honour, as I am not a legal practitioner
HIS HONOUR: Yes.
MR [WATSON]: I am representing myself I do not have access to rebut and so that the case is very one-sided. I need the opportunity to be able to argue on a level playing field with Mr Fleetwood
HIS HONOUR: Yes.
MR [WATSON]: and the only way to do that is for me to have the time to procure that information to argue on a level playing field.
…
HIS HONOUR: I mean how many – and I suppose if you’re not legally trained each time you face a hurdle am I expected to then adjourn the matter. See, what if I adjourned and you had notice of all the arguments
MR [WATSON]: Yes, your Honour.
HIS HONOUR: that you were to meet but then a new one arose between now, the time of adjournment and when you came back. Is it the case that another adjournment then would be sought?
MR [WATSON]: Your Honour, I would submit that it depends on what that legal position is from the other side. What Mr Fleetwood is proposing today is not just a – whether we should go to lunch at A or go lunch at B. We are – he is submitting that we are to be excluded from the proceedings and the effect of that is that the proceedings will stop. It will prevent me from – from preventing – sorry. It will prevent me from presenting evidence in this case that needs to be presented.
HIS HONOUR: But isn’t it the case that if I accept the proposition put to me by Mr Fleetwood, it’s merely a decision in the case which you were running the risk of anyway having a decision made one way or the other?
MR [WATSON]: I would say not, your Honour, because the decision made one way or the other should be based on the evidence presented. The strategy that Mr Fleetwood is applying here is that he wants to make sure that none of the evidence that I have and that I wish to present is presented. It’s effectively chucking me off the cliff at the beginning of the road.
(Transcript 30 November 2011, p 28, line 9 to p 29, line 28)
The above exchanges reflect that the husband, we repeat a self-represented litigant, had no notice of the application in advance of the trial itself, that the application raised legal issues of some complexity so that the husband needed time to undertake legal research to deal with the application; and that there were balancing considerations between his disobedience of orders to pay a total of $3,000 in costs against the consequence of summary dismissal of his application.
The above exchanges also reflect that the husband did not submit or say anything to the effect that the Federal Magistrate attributed to him at paragraph 34 of the reasons. That is, the husband did not say or submit to the effect that, during the trial, as he was met with any new legal argument he would seek an adjournment; he actually submitted, fairly it seems to us, that his position in that event would depend on the circumstances.
At paragraphs 38 and 39 of the reasons, his Honour referred to the decision of the Full Court in Kiefer & Kiefer [2008] FamCAFC 197 in the following terms:
38. In Kiefer & Kiefer (citation omitted) the Full Court considered the case of a person who on the day of a property trial sought an adjournment. The adjournment was not granted, even though he said he was seeking the adjournment to seek legal advice, and up until that, he had not had legal advice. As I said, the adjournment was not granted. The Full Court overturned the decision.
39. Issues of non-disclosure arose in that trial. The Full Court said at paragraph 66 [and paragraph 67]:
66. With the assistance of legal representation, the appellant may have been able to properly appreciate the importance of making full and frank disclosure and would have been assisted to do so, thereby potentially eliminating his Honour’s finding of non-disclosure against him and his Honour’s subsequent application of the principles in Weir to his detriment.
67. Moreover, had the appellant had legal representation, he might have sought to challenge his Honour’s application of the principles in Weir…
Paragraph 40 of the reasons records what the Federal Magistrate thought to be a distinction between this case and Kiefer in the following terms:
40. That is a specific case where a person sought an adjournment for the specific purpose of obtaining legal advice. It differs from this case in that the father does not seek the adjournment to seek legal advice. He seeks an adjournment to research himself what arguments he can mount against, what I am told, is the current state of the law with regard to matters where a person intends litigating, but has not followed previous orders of the Court.
We consider that the Federal Magistrate misdirected himself by attempting to make a distinction without a real difference. If the purpose of an adjournment is to enable a party to be informed of the relevant legal principles that apply, whether by consulting a lawyer or by undertaking legal research himself or herself, the distinction is invalid.
We conclude that even if the discretionary rule had application which, for the reasons we have already identified it did not, there was appealable error by the Federal Magistrate in failing to grant the husband’s application for an adjournment.
Costs
At the conclusion of the hearing we sought submissions as to the question of costs depending upon the result of the appeal.
In the event the appeal was successful the husband applied for a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) to cover his expenditure in preparing the appeal books. Counsel for the wife also sought a costs certificate in relation to the legal costs of the wife.
No party sought an order as to costs pursuant to s 117(2) of the Act and we consider that as between the parties, no such order should be made to disturb the effect of s 117(1) of the Act that each party bear their own costs. However, because the appeal succeeds on a question of law, the discretion under s 9 of the Costs Act is enlivened with respect to the husband’s costs as appellant and under s 6 of that Act with respect to the wife’s costs as respondent.
Whilst the husband was self-represented we consider the discretion should be exercised in his favour to grant a certificate in respect of the disbursements being out of pocket expenses which would have been recoverable had he been legally represented on the appeal.
With respect to the wife we decline to exercise the discretion under s 9 in her favour. It seems to us that the Federal Magistrate was lead into error by the wife. His Honour accepted what were erroneous, at least by omission, submissions in support of the application as to the applicable law and his Honour did no more or less than precisely that which the wife sought in excluding the husband from participation in the proceedings and then proceeding to make orders including the dismissal of the proceedings and a cost order in favour of the wife.
As the husband’s s 79A application was effectively summarily dismissed at the outset of the trial below such that it did not proceed, it would not be appropriate to grant either party a costs certificate for the re-trial of the s 79A proceedings.
Murphy J
I have had the advantage of reading in draft form the joint reasons of Strickland and Kent JJ and the orders that their Honours propose. I agree in the making of those orders and with their Honour’s reasons and having nothing to add.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 7 March 2013.
Associate:
Date: 7 March 2013
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