YIN & LANDON
[2018] FamCAFC 232
•28 November 2018
FAMILY COURT OF AUSTRALIA
| YIN & LANDON | [2018] FamCAFC 232 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the wife asserted that a decree of nullity made two years ago was void for actual fraud – Where the wife had filed an Initiating Application in the first instance court – Where the wife had withdrawn that Initiating Application – Where there was no application to adduce further evidence on the appeal – Where an application to adduce further evidence would obliterate the distinction between the original and appellate jurisdiction of the Court – CDJ v VAJ (1998) 197 CLR 172, discussed – Where the further evidence was more properly directed to contested proceedings at first instance – Where such proceedings are the subject of specific legislative grants of jurisdiction and power – Application dismissed. |
| Family Law Act 1975 (Cth) ss 4(b)(iii), 51, 93A, 113, 117(1) Family Law Rules 2004 (Cth) rr 4.27(c), 4.29(c), 17.02(1)(b) |
| Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bant & Clayton [2014] FamCAFC 108 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Clone Pty Ltd v Players Pty Ltd (In liq) (Receivers and Managers Appointed) (2018) 353 ALR 24; [2018] HCA 12 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31 Miller and Miller (1983) FLC 91-328; [1983] FamCA 26 Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38 |
| APPLICANT: | Ms Yin |
| RESPONDENT: | Mr Landon |
| FILE NUMBER: | BRC | 5410 | of | 2016 |
| APPEAL NUMBER: | NOA | 84 | of | 2018 |
| DATE DELIVERED: | 28 November 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 16 November 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 December 2016 |
| LOWER COURT MNC: | [2016] FamCA 1068 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Jeff Horsey Solicitor |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
The Application in an Appeal filed on 5 October 2018 seeking an extension of time to file a Notice of Appeal in appeal number NOA 84 of 2018 be dismissed.
Each party bear their own costs of and incidental to the appeal.
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 Yin & Landon 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 84 of 2018
File Number: BRC 5410 of 2016
| Ms Yin |
Applicant
And
| Mr Landon |
Respondent
REASONS FOR JUDGMENT
Ms Yin has filed an Application in an Appeal seeking an extension of time to appeal orders made by Carew J on 13 December 2016.
Her Honour declared, pursuant to s 51 of the Family Law Act1975 (Cth) (“the Act”), that the marriage solemnised by Ms Yin and Mr Landon is void, and made a decree of nullity in relation to that marriage. The declaration and decree were founded on Mr Landon having proved to her Honour’s satisfaction that Ms Yin was already married at the time of Ms Yin’s marriage to Mr Landon.
The Applicant’s central allegations of forgery and perjury
Ms Yin denies the fundamental premise upon which her Honour’s declaration and decree were made; she asserts that she was not already married at the time of her marriage to Mr Landon. She asserts that Mr Landon satisfied her Honour of the contrary by forging her signature and perjuring himself.
Ms Yin did not appear in the proceedings before her Honour. She swears that Mr Landon forged her signature and perjured himself in proving before her Honour that Ms Yin was served with his application and supporting material. Ms Yin says she was not aware of the proceedings or the making of the declaration and decree and her non-appearance was the consequence. She contends that she only became aware of the decree of nullity when she sought to file an application for dissolution of marriage the day after the decree was made and was, she says, informed of it via “a message from the Court” soon after filing.
More specifically, Ms Yin asserts in her supporting affidavit:
·Her “signature had been forged on the Court documents”.
·The marriage certificate produced by Mr Landon before her Honour “could not be valid because it had on the face of the purported marriage certificate passport numbers on the that [sic] were not issued until years after the purported marriage”.
·Mr Landon swore in seeking to prove service that she lived at Unit 1, T Street, when he knew that she lived in Unit 2 at that same address.
·Mr Landon, having sent personal documents by registered post to Ms Yin during the relationship, copied her signature used to receive those documents and used it on court documents as “the evidence to prove that [she] had received the Initiating Annulment Application and signed for it as shown”.
·Ms Yin asserts that it was not her who collected personally from the Post Office the court documents sent by Mr Landon by registered post and that Mr Landon was “[t]he only person who was in possession of [her] identifications”.
·Mr Landon provided to the Court a letter from the Department of Immigration and Border Protection in which he “blacked out” her address and which Ms Yin says indicates an attempt to “conceal [her] real address of Unit [2]”.
·Her “signature … was being copied and pasted into my supposed [Country C] Marriage Certificate as [her] real signature”.
·Mr Landon has ‘photo-shopped’ a photo of her attached to his affidavit before her Honour.
·The person alleged by Mr Landon to be her earlier husband is a friend and photographs attached to Mr Landon’s affidavit are used in a false and misleading way. Ms Yin attaches (in hearsay form) a statement by that person confirming his friendship with Ms Yin; denying being married to her and stating that he has been “happily married” to another person during and beyond the time which Mr Landon asserts he was married to Ms Yin.
The solicitor for Mr Landon in the proceedings before me indicated that each and all of the allegations are denied. By dint of the nature of the competing allegations, Mr Landon will contend that Ms Yin has perjured herself. The allegations (and counter allegations) are grave and any findings will require a standard of proof commensurately.
The Applicant’s proceedings to set aside the declaration and decree
The allegations made by Ms Yin led initially to her filing an Initiating Application in April 2018. In that application she sought the following relevant orders:
1. That the Decree of Nullity made on 13/12/2016 is void;
2.That the marriage solemnised between [Mr Landon] and [Ms Yin] on … February 2014 is valid;
3.…
4. Any other orders the Court sees fit.
Although not there specified as such, it seems clear enough that the nature of the relief sought was a declaration as to each of the two central contentions together with any consequential orders resulting therefrom.
The transcripts of the proceedings before her Honour consequent upon the return of Ms Yin’s application are not before me. I was told from the Bar table by solicitors representing each of Ms Yin and Mr Landon, each of whom represented the parties at the return date before her Honour, that there was discussion between her Honour and the solicitors as to whether the relief sought by Ms Yin ought more properly be pursued by way of appeal against her Honour’s orders.
It appears that, following that interchange, and on a subsequent date, Ms Yin sought leave to withdraw her Initiating Application. As a consequence, on 2 October 2018 her Honour ordered:
1.Leave be granted to the applicant to withdrawn [sic] her Application for Final Orders filed 24 April 2018.
2.A Notice of Discontinuance be filed and served by the applicant no later than 10.00am on Thursday, 4 October 2018.
Notably, her Honour did not dismiss the wife’s Initiating Application. Despite that order, a perusal of the court file reveals neither a Notice of Discontinuance nor any indication otherwise that it has been filed.
The instant application was filed on 5 October 2018, three days after her Honour’s orders.
Applications to extend time to appeal
It is well established that the principles governing an application for extension of time to file a Notice of Appeal in this Court derive from what was said by McHugh J in Gallo v Dawson.[1]
[1] (1990) 93 ALR 479 at 480.
In Joshua v Joshua[2] Lindenmayer J said that such an application “must fail” if the applicant does not establish that “there is a substantial issue to be raised on appeal”. His Honour went on to say that if that issue was satisfied:
…then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation…
[2] (1997) FLC 92-767 at 84,440; See also, Bant & Clayton [2014] FamCAFC 108 at [10] – [11].
Later Full Courts have said that the considerations outlined by Lindenmayer J, are “not to be treated as legislative directions”; ultimately the grant of an extension is a matter for judicial discretion, “the fundamental issue” being whether granting the application will enable the Court “to do justice between the parties”. [3]
[3]Bant & Clayton at [10] – [11]; See also, Tormsen and Tormsen (1993) FLC 92-392 at 80,017-8.
What Error is asserted if leave is granted?
The grounds of appeal if leave to file the proposed Notice of Appeal out of time is granted are, with respect, poorly drafted and, in terms, are not grounds of appeal at all:
1.That the Applicant was not served with the Application for a nullity.
2.That the marriage certificate filed by the Respondent to support that the Applicant was married to another person at the same time as the Respondent was not a valid marriage.
3. As a result the Applicant states that the marriage was not void.
4.The Applicant’s visa has been cancelled as a result of the decree of nullity.
5.The decision based on the invalid marriage certificate has now meant that the Applicants right to remain in Australia has been revoked.
6.The appealed decision would therefore lead to a substantial injustice to the Applicant if the Appeal was not allowed.
Grounds of appeal should reflect the fact that:[4]
…the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…
[4]Allesch v Maunz (2000) 203 CLR 172 at 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ) citing CDJ v VAJ (1998) 197 CLR 172 at 201 – 202 [111] (McHugh, Gummow and Callinan JJ).
Reference to the affidavit sworn by Ms Yin in support of her application and the very serious allegations it contains, can see the central task of achieving justice on the instant application potentially achieved by contemplating a reframing of the grounds in an Amended Notice of Appeal asserting that the proceedings before her Honour constituted a fraud on the Court and the particularised grounds leading to the asserted conclusion that her Honour’s orders are void.
No such application or submission is made by the solicitor representing Ms Yin in the proceedings before me.
Even if submissions to that effect were made, a Notice of Appeal in such a form, just as the Notice of Appeal in its present form, cannot succeed if the evidence before the appeal court is that which was before her Honour. On that evidence, her Honour’s declaration and decree was each entirely correct. As a consequence, the application for leave to file out of time in its current form cannot succeed.
No application is made to adduce further evidence in the appeal pursuant to s 93A(2) of the Act if leave to appeal out of time is to be granted. In my view, there needs to be such an application if this application is to be granted; without it, the mooted appeal must fail.
The fundamental aim is to achieve justice on the application (and indeed, ultimately, on the appeal itself if leave is granted to file it). The allegations at the heart of the instant application (and ultimately the appeal itself when properly drawn) are extremely serious and strike at the heart of the administration of justice. Given those factors, I would have been inclined to invite oral applications and submissions designed to cure the omissions to which I have referred (including, of course, submissions to the contrary deriving from any asserted prejudice to Mr Landon occasioned thereby).
However, I consider that a more fundamental issue confronts Ms Yin on this application.
Even if the application was permitted to embrace those amendments and additions, I consider that the application to adduce further evidence essential to the prospective success on the appeal “obliterate[s] the distinction between [the] original and appellate jurisdiction”[5] of the Court. By reference to the principles shortly to be referred to, in my judgment the issues raised stretch far beyond that which might be the subject of an application to adduce further evidence on an appeal.
[5]CDJ v VAJ (1998) 197 CLR 172 at 202 [111] (McHugh, Gummow and Callinan JJ).
In that respect I should mention that, in my view, the present case is distinguishable from that which pertained in Taylor v Taylor[6] where the High Court found that the Full Court should have set aside an order on the basis that the non-appearance of a party agitated a denial of the right to be heard.
[6] (1979) 143 CLR 1.
There, it was uncontroversial before both the trial judge and the Full Court that service had been properly effected and the relevant party’s default of appearance was the fault of solicitors. Here there is no controversy that, on the evidence before her Honour, Ms Yin was properly served and, on that evidence, she was taken to have elected not to appear thereby waiving her right to be heard in the proceedings. However, evidence is sought to be led by which Ms Yin asserts that the Court was intentionally misled by false evidence as to effective service and was intentionally misled by false evidence as to the basis for the declaration and decree made by her Honour.
The Limitations on an application to adduce further evidence
The evidence sought to be led by Ms Yin can be seen to be directly related to relief provided for specifically within the Act which calls for first instance determination. It is not, in my view, in the nature of further evidence which seeks to illuminate appealable error. That conclusion results from the matters now to be discussed.
As has been said, Ms Yin has not filed in support of her application to extend time a proposed application to adduce further evidence. As a consequence she has not filed an affidavit supportive of any such application. Of course, the allegations she deposes to in support of the instant application can be seen, at least in some respects, to be relevant to any application to adduce further evidence on the appeal. As I have earlier said, the evidence sought to be led is highly contentious and each of the allegations and counter-allegations involve the potential for grave findings.
The scope of s 93A(2) was examined extensively by the High Court of Australia in CDJ v VAJ.[7] The context for that appeal was parenting proceedings in this Court. The High Court sought to emphasise that the receipt of further evidence was discretionary and that the discretion was neither fettered nor subject to specified legislative criteria or considerations.
[7] (1998) 197 CLR 172.
Seeking to distinguish the statutory power to receive further evidence from the power at common law, McHugh, Gummow and Callinan JJ made the point that one of the features that distinguishes the statutory regime laid down in Part X of the Act is that:[8]
…the Full Court of the Family Court can evaluate the facts of the appeal for itself and in many cases is in a position to evaluate the further evidence and take it into account in considering the appeal without the necessity to have the proceedings re-heard.
[8] (1998) 197 CLR 172 at 200 [106].
Similarly, later in the judgment, their Honours make the point that:[9]
…the relevant purpose of s 93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge…
[9] (1998) 197 CLR 172 at 218 [149].
However, those principles, and the discretion to admit further evidence more broadly, are not without limitations. Whilst the discretion is not unfettered and is “not attended by any express words of limitation”:[10]
…the subject matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
[10] (1998) 197 CLR 172 at 201 [108].
Further, and of direct relevance to the conclusion I have earlier expressed in respect of this application, their Honours went on to hold: [11]
…Whatever the limits of [the role played by the desirability of finality in litigation], it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
[11] (1998) 197 CLR 172 at 217 [148].
Those statements explain, in my respectful view, what their Honours had said earlier in their judgment which, again, is central to the conclusion I have earlier expressed in respect of the instant application:[12]
…it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction…
[12] (1998) 197 CLR 172 at 202 [111].
The evidence supporting the application to extend time which, I infer, would be similar in material respects to the evidence in support of the instant application, does not in my view have as its central purpose the demonstration of error on the part of the trial judge. Rather, it is evidence more properly directed to contested proceedings at first instance which are the subject of specific legislative grants of jurisdiction and power.
The Court is granted jurisdiction in respect of “proceedings for a declaration as to the validity of … the annulment of a marriage”.[13] The Court’s power in respect of proceedings for such a declaration extend to making “such declaration as is justified”.[14] Further, the Family Law Rules 2004 (Cth) contain specific provisions in respect of such applications and, more generally for, relevantly, the setting aside of orders.[15]
[13]Family Law Act 1975 (Cth) s 4(b)(iii) (definition of “matrimonial cause”).
[14]Family Law Act 1975 (Cth) s 113.
[15] Family Law Rules 2004 (Cth) rr 4.27(c); 4.29(c); 17.02(1)(b).
In those circumstances, the sentiment expressed by McHugh, Gummow and Callinan JJ earlier quoted has, in my respectful view, added resonance.[16]
[16] See more generally in that respect Miller and Miller (1983) FLC 91-328 (Fogarty J; with whom Evatt CJ and Asche SJ agreed) and, in a very different context, Clone Pty Ltd v Players Pty Ltd (In liq) (Receivers and Managers Appointed) (2018) 353 ALR 24.
I have already earlier noted that her Honour did not dismiss the wife’s Initiating Application. Rather, her Honour gave Ms Yin leave to withdraw the same.
Conclusion
The application should be dismissed.
The Costs of the application
Ms Yin seeks, by reason of the nature of her application, an indulgence. Her application has been wholly unsuccessful. The application, as framed, had no prospects of success.
However, Mr Landon is legally aided and Ms Yin is not. No material was filed in opposition to her application until the morning of the hearing, that material being a Chronology and a Summary of Argument that did not address any of the matters central to my conclusion and these reasons. Neither had the applicant’s submissions addressed any of those matters.
Orders made by the Appeals Registrar on 8 October 2018 had required each party to include in their written submissions any submissions as to costs. Neither party did so. Neither party made an oral application for costs nor otherwise sought to address the issue.
In all of the circumstances, I consider that each party should bear their own costs in accordance with s 117(1) of the Act.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 28 November 2018.
Associate:
Date: 28 November 2018
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