In the recent case of Bebbington [2017] FamCAFC 31 (8 March 2017) Kent J heard the husband’s appeal in a case where consent orders were made in December 2015.

The 2 December 2015 Consent Orders

The relevant terms of the consent orders included that the husband was to transfer his interest in a property to the wife within 45 days and the wife was to refinance the mortgage secured over the property into her sole name and pay the husband $33, 000. If this did not occur within the time limited, the property was to be sold.

The husband provided the transfer and then there was some delay and the husband insisted that the sale provisions within the orders was respect to the property had taken effect.


The 29 September 2016 Orders

These orders made by the primary judge on 29 September 2016 authorised and required the transfer of the husband’s interest in the Northern New South Wales property to the wife to proceed, as well as the other steps contemplated in Order 30 of the consent orders to occur within 28 days. That in fact occurred on 21 October 2016.

The husband sought to contend on appeal by reason of the consent orders made on 2 December 2015 the Court was “functus officio”; and the orders made by the primary judge on 29 September 2016 were not machinery, consequential or by way of enforcement but actually varied the substance of the original orders.

The husband’s remaining contention, ground 3, was that if contrary to the first contentions the primary judge had power to make the orders, her discretion to make them miscarried.


Was the Appeal Nugatory?

The wife contended that before descending into questions concerning the need of the husband to obtain leave to appeal the subject orders, or to the merits of the appeal  or to the merits of the appeal if leave is granted, that the appeal was completely without any utility.

Whist the husband filed a notice of appeal on 21 October 2016, that obviously did not have the effect of staying the operation and/or enforcement of the 29 September 2016 orders, as confirmed by s 22.11 of the Family Law Rules 2004 (Cth). Moreover, no application was ever made by the husband under the Rules to stay the operation or enforcement, or both, of all or part of the 29 September 2016 orders.

The “statement of agreed facts” tendered on the hearing of the appeal with the consent of both parties and marked as Exhibit 1 confirmed that the orders made on 29 September 2016 nor, for that matter, the order made on 2 December 2015, remained executory after that which occurred on 21 October 2016. Specifically, on that date the husband’s liability to the prior secured creditor under the former mortgage was fully discharged; the husband’s solicitors collected on the husband’s account a bank cheque in the sum of $30, 000; and the wife extinguished the husband’s liability by refinancing the debt into her sole name, and financed the payment made, by assuming liability to the Bank of Queensland. The transfer of the husband’s interest to the wife has been lodged for registration. Further, the funds paid to the husband’s lawyers were not returned.

The only substantive order the husband sought on appeal was that the Orders of the Federal Circuit Court dated 29 September 2016 be set aside.

When the husband was invited to make submissions as to how the appeal had any utility, counsel for the husband submitted that if the subject orders are set aside, the husband “will be restored to the position that he was in before the orders made by Judge Pardon-Sully were made”. According to the Court on appeal, however, the orders were fully executed with all the consequences of such execution, including the husband taking the benefits of execution. Setting aside of the orders would not address the fact and consequences of the execution of those orders.


Leave to Appeal

The consent orders, as with any property orders pursuant to s 79 of the Family Law Act crystallised the parties’ respective rights to property.

According to the Court, the primary judge found that whilst having made the consent order sunder s 79 of the Act, the Court is “functus officio” with no power to vary the substance of the orders, it does have the power to make machinery orders to give effect to the orders. No issue was taken with this statement of principle.

The husband contended that the primary judge did not identify the powers on which she relied to make the orders, however the Appeal Court considered that the reasons as a whole make plain that her Honour was asked to consider varying the orders on the basis that they were consequential or machinery orders.

The Appeal Court considered that not only did the husband fail to demonstrate how any purported prospect of “enforcement” of the original was other than illusory, he did not demonstrate how any injustice would be occasioned to him if he did not have the opportunity to pursue that course. Even on the hypothetical enforcement advanced by the husband, resulting in the orders for sale of the  property taking effect, it was not demonstrated that this would be of any benefit to the husband.


Appeal Orders

The appeal court made the following orders:

  1. The leave to appeal was dismissed.
  2. The application to adduce further evidence on appeal was dismissed.
  3. The wife’s application for costs was directed to proceed by way of written submissions.

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