Bernier & Bernier
[2022] FedCFamC1A 192
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Bernier & Bernier [2022] FedCFamC1A 192
Appeal from: Bernier & Bernier [2022] FCWAM 118 Appeal number(s): NAA 2020 of 2022 File number: PTW 5811 of 2020 Judgment of: AUSTIN J Date of judgment: 18 November 2022 Catchwords: FAMILY LAW – APPEAL – Application in an appeal – Summary dismissal – Where the respondent husband seeks that the appeal be summarily dismissed – Where the husband’s application raises essentially the same considerations about the merit of the proposed appeal as the applicant wife’s application for leave to appeal – Where it would be impossible to entertain the application to summarily dismiss the appeal unless and until leave to appeal was granted – Where the hearing proceeded on the discrete question of leave to appeal – Leave to appeal – Where the proposed appeal is futile – Where the appeal is without merit – Leave to appeal refused – Where the husband’s two pending interlocutory applications to summarily dismiss the appeal and to adduce further evidence in the appeal are superfluous and may be dismissed – Order made. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.13
Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Cases cited: Kartal & Templeman (2022) FLC 94-080; [2022] FedCFamC1A 46
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs: 14 Date of hearing: 18 November 2022 Place: Newcastle Counsel for the Applicant: Mr Hooper SC Solicitor for the Applicant: Kim Wilson & Co The Respondent: Litigant in person ORDERS
NAA 2020 of 2022
PTW 5811 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BERNIER
Applicant
AND: MR BERNIER
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
18 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application for leave to appeal is refused and the Notice of Appeal filed on 15 September 2022 is dismissed.
2.Otherwise, the two Applications in an Appeal filed by the respondent on 27 October 2022 are dismissed.
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).
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).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 15 September 2022, the applicant wife filed a Notice of Appeal seeking leave to appeal from a single interim financial order made by a magistrate of the Magistrates Court of Western Australia on 18 August 2022.
The subject order (Order 12) requires the parties to take active steps, as and from early January 2023, to sell the former family home and to place the net proceeds yielded by the sale into a joint interest-bearing account until either further order of the Court or the parties reach agreement otherwise. However, the order must properly be considered in conjunction with another order discharging two prior orders which required that the property be sold sooner (Order 11). Orders 11 and 12 were made in tandem to resolve the parties’ dispute and so the two orders jointly represent the “judgment” under appeal (ss 26(1)(f), 36(1)(c) and 36(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”)).
There is but one proposed ground of appeal from the judgment, the substance of which is that the magistrate erred at law by proceeding to make interim orders instead of delaying any further decision about the fate of the former family home until the final trial, which has been expedited but not yet fixed. Stripped of its qualifications, the ground is pleaded in this way:
The Learned Magistrate…[m]ade an error of law when she made orders requiring the listing for sale in January 2023 of the home which the wife seeks to retain in specie on a final basis and should have ordered that the question of transfer or sale of the home to be left to the trial judge.
(Emphasis added)
By an Application in an Appeal filed on 27 October 2022, the respondent husband seeks that the appeal be summarily dismissed. As yet, however, there is no appeal. As the proposed appeal challenges an interlocutory financial order the wife first needs leave to appeal (s 28(1)(b) of the FCFCOA Act, reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)). Instead, for the short reasons which follow, her application for leave to appeal can conveniently be heard discretely and refused.
Orders made by the appeal registrar on 2 November 2022 provided that, subject to any other order of the Court, the application for leave to appeal should be heard at the same time as the proposed appeal (r 13.13(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). However, the husband’s summary dismissal application raised essentially the same considerations about the merit (or lack thereof) of the proposed appeal as did the wife’s application for leave to appeal. The wife’s senior counsel properly acknowledged that was so and therefore conceded he was able to address the issue of leave, in which case the hearing proceeded on the discrete question of leave to appeal. It was impossible to entertain the application to summarily dismiss the appeal unless and until leave to appeal was granted.
The wife was aware of her need for leave to appeal and pleaded her case for such relief in this truncated way:
1.The learned Magistrate made an error of law ordering the interim sale of the property
The premise for the grant of leave was not then the subject of any meaningful elaboration, aside from the wife wanting to preserve her claim for the former family home in specie.
Leave to appeal should be refused because the proposed appeal is futile. Even if leave to appeal was granted and the appeal was to succeed, the sale of the former family home would still be necessary because, consequent upon the discharge of Orders 11 and 12 made on 18 August 2022, the earlier interim financial orders made a year before on 24 August 2021 would be revived and they require the former family home to be sold immediately.
The wife failed to comply with the orders made in August 2021, by which she was given time to re-finance the mortgage, and so the default sale of the former family home was triggered. There was no appeal from those orders. Having subsequently breached the orders, the wife brought an application in March 2022 to vary them by giving her more time within which to re-finance the mortgage and retain the property. The former orders were varied by Orders 11 and 12, as they allow for the sale of the property to be delayed, but the wife’s application was dismissed because she was not given an even longer extension on the terms she sought.
Not only is the proposed appeal futile, it is ostensibly devoid of any merit. The appeal alleges an error of law, but the wife does not identify any legal principle which obliged the magistrate to grant her variation application. As it was, the magistrate extended the time within which the former family home must be sold until after the end of the 2022 school year so as not to unduly disturb the children. There was no evident error of law in the magistrate deciding to otherwise adhere to the substance of the former unchallenged orders.
Even if an error of law was arguable, the wife would suffer no miscarriage of justice to warrant the grant of leave to appeal to try and make good on the appealable error (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]). Implementation of the orders would indeed deprive the wife of the chance to retain the former family home in specie as part of her ultimate share of the parties’ property and superannuation interests, but the interim order merely enables the parties to crystallise their existing interests in the former family home, preserves the value of those interests, and prevents further erosion of their equity by using the sale proceeds to discharge the mortgage registered over the property.
The execution of the interim order does not impinge upon the wife’s underlying right to an order under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) adjusting those of the parties’ property interests which exist at the date of trial. The wife only has a right to prosecute her application for relief under Pt VIII of the Act; not a right to be granted the exact form of relief she wants. The same type of complaint now made by the wife has been made and rejected before (Kartal & Templeman (2022) FLC 94-080 at [48]–[60]).
The wife does not assert the subject orders are beset by any form of factual or discretionary error.
Since leave to appeal is refused, there will be no appeal and so the husband’s two pending interlocutory applications to summarily dismiss the appeal and to adduce further evidence in the appeal are superfluous and may be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 November 2022
0
0
0