Yeates and Yeates (No. 2)
[2020] FamCAFC 242
•29 September 2020
FAMILY COURT OF AUSTRALIA
| YEATES & YEATES (NO. 2) | [2020] FamCAFC 242 |
| FAMILY LAW – INTERIM PROPERTY – CONCEDED APPEAL – Where the primary judge made orders, inter alia, requiring the husband to pay the wife $100,000 – Where the primary judge failed to give any or any adequate reasons for that order – Where the wife concedes the primary judge’s failure to provide reasons is the basis for allowing the appeal – Where subsequent orders made to enforce the $100,000 payment should also be set aside – Where the Court is satisfied of appellable error – Appeal allowed – Costs certificates granted. |
| Family Law Act 1975 (Cth) s 94AA Family Law Regulations 1984 (Cth) reg 15A |
| Bennett and Bennett (1991) FLC 92-191; [1991] FamCA Bhatnagar & Riju [2018] FamCAFC 144 Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49 Crestin & Crestin (2008) FLC 93-368; [2008] FamCAFC 71 Matenson & Matenson (2018) FLC 93-848; [2018] FamCAFC 133 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-446; [2009] FamCAFC 166 Sun Alliance Insurance Ltd v Massoud (1989) VR 8 Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 246 ALR 15; [2008] FCAFC 7 Yeates & Yeates [2020] FamCAFC 132 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPLICANT: | Mr Yeates |
| RESPONDENT: | Ms Yeates |
| FILE NUMBER: | BRC | 14808 | of | 2019 |
| APPEAL NUMBERS: | NOA | 26 | of | 2020 |
| NOA | 27 | of | 2020 |
| DATE DELIVERED: | 29 September 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 29 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 February 2020; and 3 April 2020 |
| LOWER COURT MNC: | 3 April 2020 (transcript as reasons); [2020] FCCA 1020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Singh-Pillay, Cornerstone Law Offices via telephone |
| SOLICITOR FOR THE RESPONDENT: | Mr Brandon, Evans Brandon Family Lawyers via telephone |
Orders
UPON THE MUTUAL UNDERTAKING OF THE PARTIES
The applicant be granted leave to appeal in relation to NOA 26 of 2020 and NOA 27 of 2020.
Appeals NOA 26 of 2020 and NOA 27 of 2020 be allowed.
Orders 14 and 15 of the orders made on 28 February 2020 and paragraphs 5(a), 5(b), 6(a), 6(b)(i), 6(b)(ii), 6(b)(iii), 6(c), 7(a), 7(b), 7(c), 7(d), 8(a), 8(b), 9(a), 9(b), 9(c), 9(d), 9(e), 10 and 11 of the orders made on 3 April 2020 (amended on 7 April 2020) be set aside.
That the proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Vasta.
There be no order as to costs between the parties.
The Court grants to the applicant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court, would be appropriate for the Attorney-General to authorise a payment under that Act to the applicant in respect to the costs incurred by him in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect to the costs incurred by her in relation to the appeal.
The Court grants to both the applicant and respondent a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to both the applicant and respondent in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yeates & Yeates (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 26 of 2020; NOA 27 of 2020
File Number: BRC 14808 of 2019
| Mr Yeates |
Applicant
And
| Ms Yeates |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 4 December 2019, Mr Yeates (“the father”) filed an Initiating Application in the Federal Circuit Court of Australia (“the FCC”) seeking parenting orders in relation to the parties’ only child and the mother’s child from an earlier relationship. On 5 February 2020, Ms Yeates (“the mother”) filed her Response in which she sought both parenting and property adjustment orders. Relevantly, by way of interim order, the mother sought the following:
27.That [the father] shall pay to [the mother] the sum of $100,000 and in the event the parties are in dispute with respect to the characterisation of such payment, such issue shall be reserved for determination by the Trial Judge.
Subsequently, on 19 February 2020, the father filed a Notice of Discontinuance in relation to his Initiating Application. The matter came before Judge Vasta on 28 February 2020 as a first return date.
On that day, it became clear that the father, who was then self-represented, had not complied with requests for disclosure from the mother’s legal representatives. This, it seemed, was a result of the father’s misapprehension that by filing his Notice of Discontinuance he had ended the proceedings.
Ultimately, on 28 February 2020, the primary judge made orders which included an order that the father pay the mother $100,000, which payment was to be characterised “at some other time”[1] and an order restraining the father, by injunction, from dealing with any of the parties’ property without first giving the mother 45 days’ written notice. There was no date specified in the primary judge’s orders by which the $100,000 payment was to be made. The primary judge declined to make any other interim property orders seemingly on the basis that he wished to “see if [the father] complies with the $100,000 payment and we will see how that goes”.[2] The primary judge adjourned the proceedings to 3 April 2020 but also included a Notation to those orders which reads as follows:
A.That [the father] was put on notice as to his disclosure obligations prior to today’s date and such matters including [the father’s] compliance with such disclosure obligations following today’s Court date, will be considered by the Court on 3 April 2020.
[1] Transcript 28 February 2020, p.18 lines 33–34.
[2] Transcript 28 February 2020, p.18 lines 34–35.
When the matter came before the Court on 3 April 2020, the father had, in the interregnum, obtained legal representation. He had also, by 3 April 2020, complied with his disclosure obligations. He had not, however, complied with the order to pay the mother $100,000. Consequently, the primary judge made orders that, inter alia, two vintage motor vehicles owned by the father be sold and the $100,000 be paid to the mother out of the proceeds of such sale.
On 6 April 2020, the father filed a Notice of Appeal from the 3 April 2020 orders (amended on 7 April 2020) (which I will refer to as NOA 27 of 2020) and sought an extension of time to file a Notice of Appeal from the 28 February 2020 orders. Tree J granted that extension of time on 1 June 2020[3] with the Notice of Appeal from the 28 February 2020 orders being filed on 15 June 2020 (which I will refer to as NOA 26 of 2020).
[3]Yeates & Yeates [2020] FamCAFC 132.
Both NOA 26 of 2020 and NOA 27 of 2020 come before me today with a joint submission having been filed on 21 August 2020. Within those submissions, NOA 26 of 2020 is conceded on the basis that the primary judge failed to give adequate reasons for the order requiring payment of $100,000 to the mother and the injunction imposed on the father. Axiomatically, NOA 27 of 2020 is also conceded on the basis that the subject matter of this appeal are enforcement orders referable to the $100,000 ordered payment.
Also provided to the Court is a document setting out proposed orders to be made, signed by both parties. Those proposed orders, premised on an undertaking by each party not to deal with any property without first providing the other party with 45 days’ written notice and not to do any act or omission or cause the property of the parties to be diminished, provide for in summary:
a)That NOA 26 of 2020 and NOA 27 of 2020 be allowed;
b)That paragraphs 5(a), 5(b), 6(a), 6(b)(i), 6(b)(ii), 6(b)(iii), 6(c), 7(a), 7(b), 7(c), 7(d), 8(a), 8(b), 9(a), 9(b), 9(c), 9(d), 9(e), 10 and 11 of the orders made on 3 April 2020 (amended on 7 April 2020) be set aside;
c)That the proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Vasta; and
d)That each party be granted a costs certificate.
I interpolate here that the proposed orders sought by the parties are somewhat deficient in some technical aspects; namely by failing to recognise the requirement for the father to be granted leave to appeal, failing to expressly set aside the subject orders made on 28 February 2020 and failing to specify the sections of the appropriate legislation relevant to the provision of costs certificates. However, these matters will be included in the orders I propose to make today.
Merits in the appeals
Though the parties consent to both appeals being allowed, this Court must be satisfied of error before an appeal can be allowed.[4] Moreover in circumstances where costs certificates are sought pursuant to the Federal Proceedings Costs Act 1981 (Cth) it is necessary that error of law be identified. Given that it is axiomatic that the subject orders made on 3 April 2020 (amended on 7 April 2020) are to be set aside if NOA 26 of 2020 is allowed, I will address NOA 26 of 2020. I interpolate here that, because the subject orders are interlocutory property orders, the father requires leave to appeal[5] which I shall consider in the context of the broader appeal.
[4] See, for example, Bhatnagar & Riju [2018] FamCAFC 144 per Murphy J at [7] citing with approval Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 246 ALR 15.
[5] See s 94AA of the Family Law Act 1975 (Cth) (“the Act”) and reg 15A of the Family Law Regulations 1984 (Cth).
In my judgment although the father’s Notice of Appeal contains some six grounds of appeal, it is sufficient to consider only the challenge to the adequacy of the primary judge’s reasons.[6]
[6]Boensch v Pascoe (2019) 94 ALJR 112.
Inadequate reasons
This aspect of the father’s appeal is in my view appropriately conceded by the mother. It is important to first note that the primary judge failed to deliver any reasons for judgment at all rendering the transcript of the proceedings as the substitute for such reasons. That of itself does not found a challenge to the adequacy of reasons, as Murphy J observed in Matenson & Matenson (2018) FLC 93-848 at [46], citing Crestin & Crestin (2008) FLC 93-368:
… [I]t is the adequacy of reasons in the particular circumstances of the case that is the central issue as distinct from the form of the reasons, with the consequence that the transcript might, in some limited circumstances, form adequate reasons…
(Footnote omitted)
This case, however, is not one in which the transcript provides adequate reasons. The primary judge at no point addresses the circumstances surrounding the mother’s order seeking a $100,000 payment. The primary judge does not indicate on what basis the primary judge purports to make such an order beyond stating that it can be characterised at a later time, and the primary judge fails altogether to provide sufficient reasons showing the matters the primary judge purportedly took into account in arriving at the decision.
Likewise, the primary judge does not address any of the principles relevant to ordering an injunction or apply such settled principles to the facts of the case. This is despite the mother’s counsel having made some submissions directly on point.
As is emphasised by the plurality in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-446 it is essential that the juridical source of power to make such an order be identified. Having identified the jurisdiction it is then important that the necessary preconditions, and considerations relevant to the particular source of jurisdiction, be identified and considered in the making of such an order.
In the present case, the mother’s affidavit filed on 5 February 2020 did not deal with the juridical source of power in relation to her claim for an interim payment of $100,000. Having read her affidavit it is unclear whether the basis upon which the $100,000 was being sought was by way of interim property settlement or spouse maintenance or a litigation funding order pursuant to s 117 of the Act. The position is not advanced by reference to the submissions of the mother’s counsel on the hearing. The entirety of the submissions appears as follows:[7]
[MOTHER’S COUNSEL]: My client is in a position where she is in financial dire straits. I can tell you this from the bar table, she’s not even able to fund her own lawyers – her legal representation in this case without any orders made by the court for a release of funds…
…
[MOTHER’S COUNSEL]: But the balance of convenience in this case, respectfully, your Honour would be satisfied on the evidence that you should order 30 and, in my respectful submission, the evidence before you – unchallenged by response material by [the father] and, indeed, by reason of his refusal to provide disclosure as I’ve set out – enables your Honour to make the orders for the financial assistance that my client seeks…
[7] Transcript 28 February 2020, p.6 line 26 to p.8 line 1.
In the course of the submissions before the primary judge, there were these statements made by the primary judge to the father:
HIS HONOUR: …You are doing whatever you can to avoid the responsibility that you must have now so that the court can look at the property of the marriage and make a just and equitable adjustment so that you and [the mother] can now just go on your way. You’re trying to frustrate that process by not cooperating. So when it is that they say “Yes. You can afford $100,000,” well, you’ve had all the opportunity in the world to show to me that you can’t and you haven’t done it.
(Transcript 28 February 2020, p.16 lines 4–9)
HIS HONOUR: You don’t leave me very much choice.
(Transcript 28 February 2020, p.16 line 13)
HIS HONOUR: …With regard to financial matters, I’m going to order that [the father] pay to [the mother] the sum of $100,000 and I will then decide how I will characterise that payment at some other time…
(Transcript 28 February 2020, p.18 lines 32–34)
HIS HONOUR: Do not interrupt me. I am ordering it because you haven’t proven to me that you haven’t got it.
…And you are going to have to prove it…
(Transcript 28 February 2020, p.19 lines 1–6)
Whilst it is the case that a judge need not mention every fact or argument relied upon as relevant to an issue,[8] a judge is required to give reasons sufficient to disclose their reasoning and enable the parties to understand why their case was rejected.[9] The primary judge here wholly failed to do so and the appeal from the subject orders made on 28 February 2020 ought be allowed by reason of error of law in the failure of the primary judge to provide any reasons, at all, let alone adequate reasons.
[8]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
[9] Bennett and Bennett (1991) FLC 92-191 at 78,266 citing Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8.
As I indicated earlier, given the success of NOA 26 of 2020, the orders the subject of NOA 27 of 2020 must axiomatically be set aside.
Costs
Both parties seek costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). Given the appeals have succeeded by reason of errors of law and there is to be no order as to costs as between the parties, I will order that each party be granted a costs certificate both for the appeals and the rehearing.
For these reasons, I make the following orders, upon the mutual undertaking provided by each party:
(1)The applicant be granted leave to appeal in relation to NOA 26 of 2020 and NOA 27 of 2020.
(2) Appeals NOA 26 of 2020 and NOA 27 of 2020 be allowed.
(3)Orders 14 and 15 of the orders made on 28 February 2020 and paragraphs 5(a), 5(b), 6(a), 6(b)(i), 6(b)(ii), 6(b)(iii), 6(c), 7(a), 7(b), 7(c), 7(d), 8(a), 8(b), 9(a), 9(b), 9(c), 9(d), 9(e), 10 and 11 of the Orders made on 3 April 2020 (amended on 7 April 2020) be set aside.
(4)That the proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Vasta.
(5)There be no order as to costs between the parties.
(6)The Court grants to the applicant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court, would be appropriate for the Attorney-General to authorise a payment under that Act to the applicant in respect to the costs incurred by him in relation to the appeal.
(7)The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect to the costs incurred by her in relation to the appeal.
(8)The Court grants to both the applicant and respondent a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to both the applicant and respondent in respect of the costs incurred by them in relation to the rehearing ordered.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 29 September 2020, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 29 September 2020
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