Baldoni & Baldoni (No 3)
[2023] FedCFamC1F 550
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baldoni & Baldoni (No 3) [2023] FedCFamC1F 550
File number(s): SYC 1234 of 2019 Judgment of: KARI J Date of judgment: 15 June 2023 Catchwords: FAMILY LAW – STAY APPLICATION – Ex Tempore Reasons – where the husband is self-represented – where the husband has filed an appeal of the final orders – where the husband now makes an application for a stay of all of the final orders pending determination of the appeal – application dismissed.
FAMILY LAW – COSTS APPLICATIONS – Ex Tempore Reasons – where the wife and intervener make separate costs applications against the husband – applications granted – orders for fixed costs made against the husband.
Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Aldridge & Keaton [2009] FamCAFC 106
Trahn & Long (No 2) [2008] FamCAFC 194Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 15 June 2023 Place: Adelaide Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Edwards Moloney Family Law The Respondent: Self-represented Solicitor for the Intervener: Somerset Ryckmans ORDERS
SYC 1234 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BALDONI
Applicant
AND: MR BALDONI
Respondent
MR VERTUE
Intervener
order made by:
KARI J
DATE OF ORDER:
15 JUNE 2023
THE COURT ORDERS THAT:
1.That the Application in a Proceeding filed by the Husband on 30 May 2023 be dismissed.
2.That the Response to the Application in a Proceeding filed by the Wife on 13 June 2023 together with the Response to the Application in a Proceeding filed by the Third Party on 13 June 2023 be dismissed save and except as to the question of costs.
3.That no later than 4.00pm on 28 July 2023 the Husband do pay the following:
(a)The Wife’s costs fixed in the amount of $6,000.00 to the Edwards Moloney Family Law Trust Account Lawyers;
(b)The third party’s costs fixed in the amount of $3,000.00 to the Somerset Ryckman’s Trust Account.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUSTICE KARI
INTRODUCTION
This matter comes before me today in the context of final orders made in financial proceedings between the husband and the wife and a third party, being the liquidator of a company. The final orders were made by me at the conclusion of a lengthy trial, with judgment delivered on 5 May 2023.
I am aware that the husband has filed an appeal in relation to all of the orders that were made and encompassed in the final orders. I have before me a copy of the amended Notice of Appeal that was filed by the husband on 30 May 2023, in appeal number NAA139 of 2023.
THE HUSBAND’S APPLICATION IN A PROCEEDING
As a consequence of the filing of that appeal, the husband has filed before me an Application in a Proceeding, which was filed on 30 May 2023.
By that Application, the husband seeks two orders:
(1)that all orders made by Kari J in this matter, SYC 1234 of 2019, be stayed until the appeal is heard and concluded; and
(2)that the applicant, Mr Baldoni, be allowed to serve all documents to all parties via registered post and/or via email because of financial hardship.
That Application is supported by an affidavit filed by the husband, also on 30 May 2023. I observe that the affidavit filed by the husband on 30 May 2023 appears to be, in its substance, in identical terms to what appears to be an annexure to both the original Notice of Appeal and the amended Notice of Appeal in support of his appeal.
In response to the husband's application for a stay, I am conscious that each the wife and the third party, the liquidator, have filed a Response whereby they effectively ask the Court to make orders that the application for a stay be dismissed, and that the husband pay the respective costs of the wife and the third party liquidator.
Each the wife and the third party have filed a brief affidavit in support.
Of some significance, however, the wife, through her counsel, filed written submissions in the matter on 13 June 2023. The written submissions of the wife, together with the Response to an Application in a Proceeding and affidavit in support filed respectively by each the wife and the third party, were filed on 13 June 2023.
The husband's stay application was listed for hearing before me on 14 June 2023.
However for the reasons I shall shortly identify, the husband made an oral application for the adjournment of the hearing which was granted until today. The circumstances which led to the favourable consideration of that adjournment application were essentially that as the husband is self-represented and he had only recently been served with material, particularly the written submission filed on behalf of the wife (which set out submissions of a legal nature together with the reference to relevant authorities), I considered it appropriate to adjourn the matter until today to enable him to understand the submissions, look up the relevant authorities so that he was in a position to make meaningful submissions in relation to the matter.
Of particular significance, in terms of the hearing yesterday, I drew the husband's attention to those matters set out at paragraph 8 of the wife's written submission. While the wife refers in that paragraph to the decision in Trahn & Long (No 2),[1] and sets out a summary of the well-settled principles relevant to the Court's determination of any stay application. I identified yesterday for the husband that those principles can be found in the Full Court decision of Aldridge & Keaton.[2]
[1] [2008] FamCAFC 194, [38].
[2] [2009] FamCAFC 106.
Relevantly, however, I drew the husband's attention to the principles set out in paragraph 8 of the written submissions, and indicated to the husband that I had an expectation and an anticipation that, in granting the adjournment, that when the matter resumed, he would be in a position to address me in relation to those principles.
Overnight between yesterday and today’s hearing, and in response to the outcome of yesterday's hearing, the husband has filed a two page document entitled "Submissions – Order for Stay". By that document, the husband seeks to address the principles identified in paragraph 8 of the wife's written submissions.
During the course of submissions today, I have invited the husband to make more fulsome submissions if he wished to do so beyond the two-page written submission that he has provided. The husband has made limited further submissions during the course of today's hearing.
I observe that the written submissions filed by the husband are brief, and they do not address with particularity, detail and substance, those matters that the Court is required to consider when determining whether or not to grant a stay. Simply, for example, asserting that he has cogent evidence before the Court does not satisfy me that that is so.
The same comment might be made as to an assertion that an appeal would be rendered nugatory if the stay was not granted. That assertion in and of itself does not, because the assertion has been made, necessarily mean that that conclusion can be drawn.
What I was hoping, in pressing the husband to consider the matters raised, particularly at paragraph 8 of the wife's written submissions, was that I would receive fulsome submissions from the husband in relation to the relevant principles. That, sadly, has not occurred.
Be that as it may, it falls upon me to consider the relevant principles in relation to the application for a stay that is now before me.
In the decision of Aldridge & Keaton,[3] the Full Court stated as follows:
[3] Ibid.
The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.[4]
[4] Ibid [18].
Addressing the relevant principles, the single significant factor that is exercising my mind in the present circumstances is whether the appeal would be rendered nugatory if I was not to grant the stay. I am not satisfied that that would be the case.
I accept the submissions that have been made, both on behalf of the wife and on behalf of the third party liquidator, that if the orders are carried into effect, there are sufficient assets from which any entitlements to the husband could be met if, indeed, his appeal were to be successful and there were to be an order for property settlement in his favour.
I am equally persuaded by the submissions made on behalf of the wife, so far as the principal relief sought by the husband during the trial in the substantive proceedings, namely, the husband did not ask the Court to make orders for property to be transferred to him. Rather, the husband made a claim for a percentage sum division and assets to be sold to meet his entitlements by way of a cash payment. With that being so, I do not see that in all of the circumstances, that an appeal would be rendered nugatory if, indeed, the appeal was successful.
As is identified, the mere filing of an appeal is not sufficient to support the granting of a stay.
Strong submissions have been made on behalf of the wife in relation to the bona fides of the husband.
Strong submissions have been made that the filing of the appeal and the filing of the stay application are, in my words to summarise what has been put to me, disingenuous and a delaying tactic to stave off carrying into effect the orders that were made.
While I will come to the merits of the appeal in a moment, I am troubled as to the bona fides of the husband in all of the circumstances of these proceedings, particularly bearing in mind the findings that I made when I delivered my reasons in support of the final orders that were made.
I am concerned that one of the consequences if I were to grant a stay, and where the husband has a property in his control and in circumstances where, during the course of the litigation and when judgment was reserved, the husband sought it fit to sell that property, that if I was to grant a stay, that the husband would be at liberty to deal with the property in his possession and/or control and that that may well deny the wife the fruits of the litigation and may well make it difficult for the wife and/or the liquidator to pursue, in due course, the costs applications which I am equally aware are before the Court for determination after the appeal has been determined.
Turning to a preliminary assessment of the strength of the proposed appeal, I have heard the submissions made on behalf of the husband and I have read the lengthy affidavit that he has filed. I say lengthy not to be critical of its length but to comment that the husband has had ample opportunity, through the length of the document, to raise all of the matters that he wishes to raise in support of the merits of the appeal. I am troubled by the merits of the grounds of appeal that are sought to be agitated on behalf of the husband.
I hear the submissions made both on behalf of the wife and the third party that the grounds of appeal as presently pleaded appear to be ambit grounds which lack specificity, detail and merit.
I have not heard any submissions as to when it is likely that the appeal is to be heard, and that is not something that I bring to account at this juncture.
CONCLUSION
In all of the circumstances, and for the reasons that I have given, I do not consider it appropriate to grant a stay of the final orders that were made in these proceedings on 5 May 2023.
I am conscious that the Application filed by the husband on 30 May 2023 had, in addition to the orders for a stay, a proposed order with respect to service. I have not heard any submissions by the husband in support of that application, and I accordingly propose to equally dismiss that application on the basis that it has not been pressed before me today.
COST APPLICATIONS
Having determined all of the issues raised by the Application in a Proceeding filed by the husband on 30 May 2023, I now have before me costs applications made by each the wife and the third party.
The wife seeks costs fixed in the amount of $6,000, identifying that her actual costs incurred are a sum of $11,000.
The liquidator equally seeks that the Court make a costs order fixed in the amount of $3,000, understanding the submission that the actual costs incurred at the liquidator's end is a sum of $5,500.
I am mindful of the provisions of section 117 of the Act and, in particular, the provisions of section 117(2A).
I have also drawn section 117(2A) to the husband's attention. However he has chosen to decline to make any submissions in relation to the relevant factors identified in section 117(2A).
The husband has however made what I consider to be a significant admission that is relevant to my consideration of the costs applications that have been made, namely, that he considers the quantum of costs now sought by each the wife and the liquidator to be “reasonable”.
Turning to the relevant factors in section 117(2A), a significant factor that is exercising my mind is that the husband has been wholly unsuccessful in his application for a stay before me.
While I am mindful that no one factor in section 117(2A) is necessarily determinative of any costs application, the fact that the husband was wholly unsuccessful is a significant factor, in my view, that weighs in favour of the making of a costs order.
In addition, I consider that the conduct of the husband to the proceedings before the Court today are equally significant and weigh in favour of the making of a costs application, as has been sought.
To that end, I accept and I agree with the submissions made on behalf of the wife that the husband has not engaged with the relevant principles for the determination of the stay application, despite having been given the opportunity to do so by the granting of an adjournment yesterday to today to enable him to engage with those issues. I have commented in my reasons as to the scantness of the written submissions that were filed and the husband's determination during the course of the hearing not to make any further oral submissions in support of his application.
I have not been addressed about the financial circumstances of the parties.
I am mindful, however, of the matters that I set out in my reasons in support of the final orders that I made in these proceedings on 5 May 2023.
I am conscious that the husband's financial circumstances are parlous. However, in my view and as the authorities establish, the impecuniosity of a litigant is not a reason to refuse to make a costs order.
I am equally mindful, as I discussed in my reasons for final orders, that the husband has property in his sole name which is the subject of an injunction and is available in due course to meet any costs order.
Given the admission by the husband that the quantum of costs sought by each the wife and the liquidator are reasonable, I propose to make an order in favour of each the wife and the liquidator fixed in the amount as they have each sought.
For all of those reasons, the Court makes the orders as set out at the commencement of these Ex Tempore Reasons for Judgment.
NOTE: These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 15 June 2023
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