WEST & WHITE - [2013] FamCAFC 120

FAMILY COURT OF AUSTRALIA

WEST & WHITE

[2013] FamCAFC 120

FAMILY LAW ─ APPEAL ─ Whether the trial judge erred in dismissing the husband’s application for leave to bring an application that the wife be dealt with for contempt ─ Where the husband established error in her Honour’s determination of the application ─ Where the Court found that the trial judge failed to consider all the matters on which the husband sought leave and on that basis concluded that her Honour was in error ─ Appeal allowed.

FAMILY LAW ─ COSTS ─ Where the husband represented himself in the proceedings and incurred no costs relevant to a costs order ─ No order for costs made.

Family Law Act 1975 (Cth)

APPELLANT:

Mr West

RESPONDENT:

Ms White

FILE NUMBER:

NCC

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

14 August 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ, Ainslie-Wallace & Watts JJ

HEARING DATE:

13 May 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 November 2010

LOWER COURT MNC:

REPRESENTATION

THE APPELLANT:

Mr West in person

THE RESPONDENT:

Ms White in person

Orders

Appeal allowed.
Set aside the order of Cleary J made on 19 November 2010.
Remit the husband’s application for leave to bring proceedings pursuant to

s 118 of the Family Law Act1975 (Cth) for hearing before a judge other than Cleary J.
Make no order as to costs

IT IS NOTED that publication of this judgment by this Court under the pseudonym West & White 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 SYDNEY

Appeal Number: NCC 3 of 2007
File Number: EA 45 of 2011

Mr West

Appellant

And

Ms White

Respondent

REASONS FOR JUDGMENT

Mr West (“the husband”) appeals an order made by Cleary J on 19 November 2010 by which she dismissed his application for leave to bring an application that Ms White (“the wife”) be dealt with for contempt.
It is helpful to set out some of the procedural and litigation history of the matter to give a context to the appeal.
Although not a party to the application for leave or, strictly to the appeal, the wife appeared on the appeal and opposed it. She had been represented by a solicitor who submitted a summary of argument in opposition to the appeal. We have had regard to the arguments raised on the wife’s behalf in that document.

Background

On 1 September 2005 Mullane J made an order pursuant to s 118(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) in the following terms:
13) The husband must not without leave of a Judge of this Court institute any further proceedings against the wife under the Family Law Act.
14) Any application for such leave is in the first instance to be listed before a Judge in Chambers without appearances and unless otherwise ordered is not to be served upon any other party.

In December 2008, during a contested property hearing between the parties, the husband and wife entered into consent orders for the sale of the marital home and for division of the resulting proceeds.
The orders have been the source of contention. Orders 1.1, 7a and 8 are as follows:
1. By way of alteration of property interests pursuant to Section 79 of the Act, the parties and each of them do all acts and things and execute all deeds and instruments necessary or convenient to effect the following:
1.1 The sale by private treaty for the best price reasonably obtainable in the current market of the land and premises situate and known as [V] in the State of NSW being the land more particularly described in Certificate of Title folio identifier [...] (“the home”).
7a That in the event of any disagreement between the parties as to any aspect of the listing for sale, or sale or auction of the home, the Chief Executive Officer for the time being of the Real Estate Institute of NSW or his nominee (hereinafter referred to as “the CEO”) shall be and is hereby appointed to determine any such disagreement, and any costs incurred shall be borne equally between the parties, and the solicitors for the wife are authorised and directed by these orders to make any necessary adjustment from the parties’ respective shares of the proceeds of the sale pursuant to order 1 hereof.
8. The wife shall keep the husband informed of the progress of the marketing and sale of the home.
The wife was the registered proprietor of the home since it was transferred into her sole name on the 20 February 2004 and on 10 August 2009 the wife sold the home for $530,000.
On 14 August 2009 the husband brought contravention proceedings against the wife alleging a failure to comply with order 7a of the consent orders. The application was heard by Coakes FM on 25 August 2009 who dismissed the husband’s application and ordered that he pay the wife’s costs.
The husband then appealed that decision and on 8 April 2010 the appeal was heard by Coleman J. His Honour noted during the argument on the application before the Federal Magistrate that the husband asserted that the alleged contravention was the wife’s failure to consult with him over the sale of the property. His Honour (at paragraph 11 of the appeal judgment) extracted from the transcript an exchange between the husband and the Federal Magistrate at paragraph 11 of the appeal judgment in which the Federal Magistrate said:
Well, sir, the issue then is if there is an issue, and I’m not satisfied there is at this stage whether the property has been sold for the best price reasonably obtainable in the current market. Is that the issue?
To which the husband replied:
No. The issue is point 7(a) – is that the wife is to consult with the husband on any aspects of the home being for sale.
The Federal Magistrate pointed out that order 7a was to have effect in the event of a disagreement between the parties about the sale or proposed sale.
The appeal from the Federal Magistrate’s decision was unsuccessful.
In the course of the decision on appeal, Coleman J said at paragraph 19:
His Honour identified, correctly there is no doubt, the application by the husband and the breach upon which the husband relied. His Honour, having referred to Order 7(a), recorded that, “The husband adduces no evidence in his affidavit to support that contention.” With respect to his Honour, whilst if accepted, the evidence in the husband’s affidavit in support of his contravention application would have been capable of establishing, at least at a prima facie level, a contravention of Order 8, he was correct in this court’s view in concluding, as he did, with respect to the ability of the affidavit evidence to support the asserted contravention of Order 7(a).
Coleman J said at paragraph 34:
As a reading of the husband’s affidavit evidence-in-chief confirms, if accepted, the husband’s evidence would be capable of establishing, at least at the prima facie level, a breach of Order 8. It would not, however, on a balanced reading of the 11 paragraphs of the husband’s affidavit, be capable of establishing, at even prima facie level, a breach of Order 7(a). ...
His Honour noted at paragraph 51:
...Regrettably for the husband...he picked the wrong order in the Consent Orders of December 2008 as the basis of his contravention application. As the Court suggested to the husband on a number of occasions during the course of oral submissions, had the application referred to Order 8 rather than or in addition to Order 7(a), its fate, at least in terms of summary dismissal, may have been quite different.
On 26 October 2010 the husband filed an application which sought:
Leave for the matter of contemp [sic] of cort [sic] to proceed for hearing before the Family Court under sec 118 FLA 1975
The application was supported by an affidavit filed on 26 October 2010 (although it purports to be sworn by the husband on 27 October 2010). In paragraph 2 the husband asserts that the wife had not complied with orders 1.1, 7(a) and 8 of the consent orders which were attached to the affidavit.
At paragraph 5 the husband said:
Orders 7a and 8- This would include that I be a party to the periodically renegotiated (every 90 days) of “Real Estate Agents Agreement” this contains matters as:…
He further deposed (paragraphs 7 and 9) that on 13 August 2009 he noticed the house advertised in the window of a real estate agent and believed that the advertised price was lower than he expected it to be. On calling the agent he was told that the house had sold. The husband said that he had no notice from the wife about the sale or price before the house was sold. In paragraphs 18 and 19, the husband addressed the wife’s asserted failure to comply with order 8 of the consent orders.
He said:
18. I intend to subpoena material re: instructions from respondent’s Solicitor to issue me with any information re Order 8;
“The wife shall keep the husband informed of the progress of the marketing and the sale of the house.” Also any requests to the REI NSW re: any disagreement between the parties as to any aspect of the listing for sale or auction of the home” as in Order 7a.
19. I endeavoured to abort or address the sale of the home by taking out caveats with the Land Title Office on or about 18 August 2009, again on or about the 7 October 2008 (Caveat [...]). As to the second Caveat note attachment ‘K’.
The husband attached the consent orders to the affidavit.
In conformity with the 2005 order, Cleary J dealt with the application in chambers and refused the husband’s application. Her Honour’s orders were made on 19 November 2010. Her Honour dismissed the husband’s application for leave. It is against this order that the husband appeals.

Reasons of Trial Judge

Her Honour set out the history of the matter and at paragraph 30 of her judgment said:
30. The affidavit of the applicant does not refer to the following relevant facts:
a)That a contravention application was filed by him on 14 August 2009 in the Federal Magistrates Court;
b)That on 25 August 2009 the contravention application was dismissed by Coakes FM;
c)The applicant was ordered to pay the costs of the former wife as assessed;
d)That an appeal by the applicant against the Orders of 25 August 2009 was dismissed.
31. Rule 11.05(4) states that the Court must not grant permission to start or continue a case unless it is satisfied that the case has reasonable likelihood of success. I must also consider the purpose of s 118 which is to protect a Respondent from being brought to Court to meet an unnecessary and harassing proceeding. In this matter the contravention application brought by the applicant prior to the sale of the former matrimonial home has been heard, determined, appealed against and the appeal lost.

The Appeal

The husband raises two grounds of appeal:
1. The honourable jst erred in fact in assumeing that order 8 in concent orders issued 16.12.08 has previously been contended by applicant before mgst Coakes Newcastle registary on 25.8.09
2. The honourable jst erred in procudal fairness in not addressing order ‘1.1’ of orders issued 16.12.08 (Errors as in original)
The husband’s summary of argument restates the ground, that is, her Honour erroneously concluded that he was bringing a second application in relation to a matter heard and determined by Coakes FM and because of that incorrect assumption failed to consider and determine his application to bring proceedings in relation to orders 8 and 1.1.
We agree. The husband’s affidavit filed 26 October 2010 indicates that he seeks leave to bring proceedings against the wife not only in relation to order 7a but also in relation to her alleged contravention of orders 8 and 1.1 of the consent orders. It follows that her Honour failed to consider all the matters on which the husband sought leave. On that basis her Honour erred.
As we have indicated, a written outline of argument was filed on behalf of the wife in opposition to the appeal. It said:
14. The respondent respectfully contends that to now grant the appellant leave to institute contempt proceedings against the respondent would:
a)be futile if limited to a contempt application relying solely upon an alleged breach of order 8 of the orders of 16 December 2008, and
b)amount to placing the respondent in a position of double jeopardy if the appellant were in effect allowed to proceed with a contempt application the scope of which was the alleged breach of both orders 7(a) and 8 of the orders of 16 December 2008, and
c)engage the maxim de minimis non curat lex both on its own terms and having regard to the history of litigation between the parties. (Original emphasis)
It was further contended in the wife’s argument that the appellant’s case is that by reason of the wife’s failure to abide by the orders resulted in the home being sold for less than it was worth, that difference is something in the order of $45,000, then by the terms of the orders, the husband could only receive at most about $19,350 more than he had already, and thus to grant him leave was futile.
These arguments are relevant to the outcome of the application to commence proceedings if the appeal is allowed rather than necessarily to the merits of the appeal.
As we have indicated, the husband has established error in her Honour’s determination and the appeal will be allowed.
It is necessary to remit the husband’s application for consideration to a judge other than Cleary J.
We are conscious of the wife’s submission about the futility of the litigation given the time that has passed and her estimation of the best outcome to the husband if he was successful in his application and subsequent contempt application. We observe that the arguments raised in the summary of argument in opposition to the appeal are matters which the wife would, if the application for leave was re-heard and she be given an opportunity, put in opposition to the husband being given leave.
The husband also indicated that he would like the question of leave sought in his application filed 26 October 2010 to be dealt with in open court. The order of Mullane J made in September 2005 prescribed that any application for leave brought by the husband be listed in chambers in the first instance and unless otherwise ordered is not to be served upon any other party. There has been no appeal against that order.
We observe the wife’s involvement in this appeal means that she has already received a copy of the application filed 26 October 2010. Whilst it is a matter for the trial judge, we would suggest that, although Mullane J’s orders require this application for leave to be listed in chambers in the first instance, it would be efficacious to complete the hearing in open court.

Application in an Appeal

After the appeal was heard, the husband filed an application on 31 May 2013 seeking an order that the appeal be reopened to correct a typographical error in the appeal book.
Attached to the husband’s affidavit in support of the application is a letter in which he sets out the errors that he wishes to correct. The husband points to the affidavit filed by him on 26 October 2010 supporting his application for leave to bring proceedings against the wife and it is that that he says are typographical errors. It was this affidavit that the trial judge considered when dealing with the husband’s application.
The purpose of the reopening of the appeal is to allow the husband to correct the affidavit not to correct an error in the appeal books.
There is no apparent merit in the application and in any event, given our determination of the appeal no need for us to consider it further.

Costs

The husband has represented himself in these proceedings and incurred no costs relevant to a costs order. We will thus make no order for costs.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Ainslie-Wallace & Watts JJ) delivered on 14 August 2013.

Associate:

Date: 14 August 2013