Boston and Boston - [2017] FamCA 75

FAMILY COURT OF AUSTRALIA

BOSTON & BOSTON

[2017] FamCA 75

FAMILY LAW – STAY APPLICATION – Where the wife seeks the stay of final property settlement orders – Where the final orders require the imminent sale of the former matrimonial home – Where no special circumstances exist justifying departure from the ordinary rule that the husband should be entitled to the fruits of the litigation – Concluded the law does not envisage that orders under appeal will be stayed simply because they are due to be implemented before the appeal is determined – Ordered the wife’s application is dismissed

Family Law Act 1975 (Cth)

Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621
Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681
JRN & IEG (1998) 72 ALJR 1329
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No.2) [2008] FamCAFC 194

APPLICANT:

Ms Boston

RESPONDENT:

Mr Boston

FILE NUMBER:

ADC

1946

2012

DATE DELIVERED:

7 February 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

7 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

Orders

The Application in a Case filed on 12 January 2017 is dismissed.
No order as to costs.

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 Boston & Boston 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).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: ADC 1946 of 2012

Ms Boston

Applicant

And

Mr Boston

Respondent

EX-TEMPORE

REASONS FOR JUDGMENT

The application before the Court for determination today is an Application in a Case, filed by the wife on 12 January 2017, seeking to stay the operation of property settlement orders made by Justice Dawe on 12 December 2016 following the conclusion of very lengthy litigation between the applicant wife and respondent husband adjudicating their rights under Part VIII of the Family Law Act 1975 (Cth).
The orders and reasons delivered by Justice Dawe on 12 December 2016 represented the culmination of five years’ litigation between the parties. The hearing extended over 19 days between early October and early November 2016. In essence, her Honour concluded the parties had net assets of just under $800,000 and decided they were entitled to an equal share of those assets.
It is common ground the wife was, and still is, in occupation of the former matrimonial home. It was the most significant asset in which the parties were interested. Her Honour found the home was worth $2.15 million, but was encumbered by liabilities exceeding $1 million. Her Honour ultimately ordered the wife to pay to the husband, on or before 10 February 2017, the sum of $410,825 in order for her to retain the home. Her Honour found the wife wanted to retain the home, but concluded it was unlikely she would be able to borrow the funds to make the payment to the husband in accordance with the orders. Nonetheless, apparently responding to the wife’s “vehement desire”, her Honour made orders which gave the wife the opportunity to raise the necessary funds for payment to the husband so she could retain sole proprietorship of the home. Her Honour indicated in the reasons that, if the wife was unable to make the payment by the due date, it would be necessary for the former matrimonial home to be sold and accordingly default orders were made to that effect.
The wife filed her appeal against the orders within time, on 9 January 2017, and I accept for present purposes that her appeal is bona fides. I accept she has a genuine grievance with the orders and the reasons given for them.

Evidence

In support of her stay application the wife relied upon her affidavit filed on 12 January 2017.
The husband, who today appeared to oppose the stay application, did not rely upon any evidence in rebuttal of the wife’s evidence.
Both parties were self-represented and each made submissions.

Legal principles

The discretion to stay the operation of orders should only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Such special circumstances justifying a stay will exist where it is necessary to prevent the appeal from being nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed (see Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685).
Those common law principles apply equally to judgments delivered in this jurisdiction (see JRN & IEG (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]-[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No.2) [2008] FamCAFC 194 at [38]).
The Court is entitled to assume that the decision which is the subject of the appeal is correct. Indeed, the Full Court must subsequently approach the appeal on the basis of a strong presumption that the decision is correct (see Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 at 627).

Discussion

As I have already indicated, I accept the wife’s appeal is bona fides, but her submissions have not satisfied me that the grounds of appeal are worthy of much merit, which consideration is particularly influential in the decision as to whether a stay of the orders is justified.
The grounds of appeal currently comprise 55 separate paragraphs, many of which are unintelligible and/or bare assertions and conclusions. It is unclear to me what many of her complaints about the trial judge’s reasons actually mean. When that issue was raised during the wife’s submissions, she sensibly attempted to articulate her grievance by reference to certain evidentiary issues rather than discrete grounds of appeal.
She firstly complained that her attempt to adduce evidence at trial was unreasonably frustrated by the husband’s legal representatives, whose unreasonable opposition was erroneously condoned by the trial judge’s procedural decisions.
I cannot accept, on the face of the material before me, that complaint is correct. In the reasons for judgment (at [81]-[111]) the trial judge attempts to summarise the issues arising from the wife’s evidence. In the course of those reasons, her Honour remarked:
During her evidence-in-chief and cross-examination there were significant issues about the production of documents, in particular bank statements for various periods.
Later in the reasons, her Honour recorded:
Some of the wife’s evidence was not always acceptable or reliable. Her failure to produce relevant documents before the trial and her ongoing refusal or failure to produce other documents during the trial does not assist her case. This failure, however, needs to be considered in the context of the wife being unrepresented for a considerable period of time prior to the final hearing.
It therefore seems that, contrary to the wife’s assertion today, the unsatisfactory nature of her evidence and the manner in which she attempted to adduce it was expressly taken into account by the trial Judge. That precludes the wife from being able to submit with any force it was an issue overlooked by the judge. It could only leave the wife with a complaint about how the trial judge dealt with the issue unfairly and it is not apparent to me from the wife’s submissions how that was so.
The next complaint expressly addressed by the wife related to the treatment of her evidence of “domestic violence” at the trial. The wife blithely asserted she was the victim of gross “family violence” (as that term is defined in the Family Law Act) at the hands of the husband, both throughout their relationship and since. However, her submission that the trial judge did not take that issue into account was plainly wrong because (at [279] of the reasons) the trial judge observed:
Taking into account the evidence of the wife, the evidence of the husband and the evidence of [Dr UU], I am not satisfied on the balance of probabilities that the wife has sufficiently established the allegations of family violence.
Again, it could not be properly asserted the issue was overlooked by the trial judge. It could only be asserted the trial Judge reached an erroneous conclusion of fact and it was not explained to me by the wife why such a conclusion was not open to her Honour.
The third issue discretely addressed by the wife in her submissions was the asserted failure by the trial judge to find the husband had an interest in some international business.
The trial Judge observed (at [56]):
Another significant issue in the determination of the financial matters was the wife’s allegations that the husband had, and continues to have, substantial assets that he has not disclosed, being assets relating to … businesses in [Country Y, Country P], America and Australia and in [other] businesses in America and Australia.
In respect of that particular issue, her Honour later observed (at [242] of the reasons):
The wife has not provided any reliable evidence, nor is there any other reliable evidence provided to the Court that the husband currently has any interest in these entities, nor that his interest is, or was, worth $10 million. This alleged asset (being a reference to international businesses) is therefore not brought into account.
The wife was unable to explain why such a conclusion was not open to the trial judge. Her submission about it amounted to simple disagreement.
Her Honour ultimately concluded the parties’ net assets amounted to less than $800,000. With no disrespect intended to either of the parties, that is not a sufficiently large matrimonial bounty over which to spend so much time, effort and money in dispute. Neither party has the apparent financial capacity to justify protraction of the litigation. So as to disabuse the wife of her apparent misconception, the law does not envisage the orders under appeal will be stayed merely because they are due to be implemented before the appeal is heard and determined. Nothing I have said obliges her to desist from her appeal or to prosecute it without legal representation. She is entitled to pursue her legal remedies as she sees fit. But the mere fact the orders made by Justice Dawe require implementation within the next few days, before the appeal is heard and determined, is not of itself any reason for the orders to be stayed. Implementation of the orders in the meantime will not render the appeal nugatory.
Nothing submitted by the wife persuades me there are special circumstances which justify departure from the ordinary rule: namely, that the husband should be entitled to the fruits of the litigation. Within the next few days, he is entitled to be paid more than $400,000 by the wife, in default of which the former matrimonial home must be sold. It is implicit from the wife’s submissions she has no ability to make the payment to the husband within time. It will necessarily follow the house will need to be sold. Of course, that does not mean she will be ejected from, or required to vacate, the former matrimonial home within the next couple of days, but she will need to vacate the property before any prospective sale of the home is finally completed.
For those reasons, I am not satisfied that any grounds for the stay have been demonstrated and, accordingly, the application of the wife should be dismissed. I make the following orders.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 7 February 2017.

Associate:

Date: 16 February 2017