BULLER & MARTIN

[2016] FamCA 434

FAMILY COURT OF AUSTRALIA

BULLER & MARTIN [2016] FamCA 434

FAMILY LAW – PRACTICE AND PROCEDURE – Application for a Stay of the Order – Application Dismissed

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Jackson & Balen [2009] FamCAFC 131
Trahn& Long (No. 2) [2008] FamCAFC 194

APPLICANT: Mr Buller

RESPONDENT: Ms Martin

FILE NUMBER: BRC 8647 of 2014

DATE DELIVERED: 30 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 May 2016

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Turnbull, Fox Taylor Mildwaters

Orders

IT IS ORDERED THAT

1. The Application in a Case filed 16 May 2016 for a stay of the operation of the Order made by Hogan J on 18 March 2016 is dismissed.

2. The costs of and incidental to the Application in a Case filed 16 May 2016 are reserved to the trial Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Buller & Martin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8647 of 2014

Mr Buller

Applicant

And

Ms Martin

Respondent

REASONS FOR JUDGMENT

1. On 18 March 2016, I made orders for the sale of property in which Mr Buller, the current Applicant for a stay of the operation pending the hearing and determination of his appeal against those Orders, lives – the property being situated at I Street, J Town. 

2. Reasons for Judgment were published that day. 

3. On 15 April 2016, Mr Buller filed a Notice of Appeal in relation to those interim Orders for sale. 

4. Mr Buller sought, by way of the orders sought in the Notice of Appeal that the property matters be decided at trial and not before the parenting matters;  that he be permitted to live in the property;  that the mother or her agent be excluded from the premises or attending on the premises without his consent;  that the children be allowed to return to the home and spend no less than three nights with him there;  and that the Respondent to this Application, Ms Martin, be restrained from bringing further applications in relation to the property at I Street until trial.

5. Mr Buller also sought orders that the published Reasons for Judgment be amended to remove what were termed “any erroneous statements”. 

6. The Notice of Appeal contains a number of grounds of appeal to which I will revert and refer in a moment. 

7. On 16 May 2016, Mr Buller filed an Application in a Case seeking a stay of the operation of the Orders made 18 March 2016 pending determination of the appeal. 

8. The matter came before me last week and, for reasons which will be apparent from reference to the transcript of the proceedings that day, was initially adjourned for judgment till 4.30 last Friday, 27 May 2016 at 4.30 pm.  During the course of last Friday – when I was engaged in attempting to finish a part-heard trial – it became apparent to me that I would not be in a position to deal with this matter as I was required to conclude the evidence of a witness who had previously been required to appear during the trial and had not been reached.  For those reasons, information was conveyed to the parties of the fact that this matter would be adjourned to 9.00 am this morning because I was simply unable to return to it.  I record that the trial in which I was engaged last week on Friday saw the Court sitting until about 5.15 pm so the conclusion I had reached earlier in the day was borne out by the course of events; it would not, simply, have been possible for me to deal with this matter last Friday as earlier anticipated. 

9. One of the matters which was provided for in the orders I made when I reserved the matter and adjourned it to last Friday was to afford to Mr Buller the opportunity to provide evidence in relation to assertions he made during the course of the hearing on 23 May about the attempts he had been making to obtain finance so as to be able to refinance the loans currently secured by mortgage over the property at I Street.

10. Mr Buller subsequently filed in the Court, at 4.15 pm on 26 May 2016, a document bearing his signature to which is exhibited a further document headed “Annex “A”” – being an email from a person, Mr M, described as an accredited finance broker. 

11. As will be apparent from recourse to the transcript of the discussion this morning, that document has not been sworn by Mr Buller in front of an appropriate witness.  He provides explanation to me orally that this was not possible because of constraints upon his time last week. 

12. The Annexure “A” document contains the following information:

    Hi [Mr Buller],

    This email is to confirm I am currently in contact with you to discuss refinance options of your current home.

    Regards,

    [Mr M]

    Accredited Finance Broker

13. There is no date on the actual email itself but Mr Buller tells me, in essence, in submission from the bar table, that it was received by him very shortly before he forwarded the document to the Court for filing. 

14. I intend to take into account that the information confirms no more than that this person is in contact with Mr Buller to discuss refinance options in relation to the mortgages.

15. As I explained during the course of the hearing – predominantly for the assistance of Mr Buller who appears on his own behalf – the principles which govern the exercise of a stay pending the filing of an appeal, including the filing of an appeal against an interim order in respect of which leave to appeal is required, have been set out by the Full Court of this Court in a number of decisions.  Included in those are cases such as Trahn& Long(No. 2) [2008] FamCAFC 194 at paragraph 38 and thereafter; and, further, Jackson & Balen [2009] FamCAFC 131 – a situation in which the Full Court was asked to consider an appeal against the refusal to grant a stay of the operation of interim spousal maintenance orders pending appeal against those orders.

16. Reference to those two authorities provides a summary of the applicable principles and details of the authorities from which they are drawn.

17. I do not intend to set those out again but note that, during the course of the hearing on 23 May 2016, I provided to the parties a summary of the applicable principles taken from those authorities and the earlier authorities to which they refer. 

18. As I noted to Mr Buller during the course of the discourse on 23 May, in any application for a stay, the onus is upon the Applicant to establish a proper basis for a stay – albeit that it is not necessary for an Applicant to demonstrate special or exceptional circumstances.  This proposition was, again, referred to by the Full Court in Jackson & Balen (at paragraph 56) where their Honours noted that it was incumbent upon a litigant seeking a stay to place before the Court very clear reasons for the basis of it and that, whilst these did not need to be special or exceptional, there must be sound and clear reasons to justify a Court granting a stay. 

19. These propositions makes sense when seen in the context of other principles applicable to the determination of whether to grant a stay pending appeal: namely, that a person – in this case, Ms Martin – who has obtained a judgment is entitled to the benefit of that judgment, entitled to presume it is correct and that the mere filing of an appeal is insufficient to grant a stay. 

20. It is clear (as I outlined during the hearing on 23 May) that the Court – in determining whether to exercise the discretion in favour of the granting of a stay pending determination of an appeal – should take into account the bona fides of the applicant for stay; must weigh the risk that an appeal may be rendered nugatory if a stay is not granted – this being a substantial factor in determining whether it will be appropriate to grant the stay, should undertake some preliminary assessment of the strength of the proposed appeal and whether an appellant has an arguable cases; and should take into account the period of time, if known, in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time, taking into account, of course, that a stay is not something which is ordered as a matter of right (the onus being upon an applicant to establish a proper basis).  

21. In this case, it could not be said that there has been any delay on the party of Mr Buller in filing the appeal against the orders made on 18 March 2016.  This was filed within time.  Taking into account that he is an litigant in person, it does not seem to me that he delayed in filing the Application for a stay pending the determination of his appeal:  the Application for a stay was filed on 16 May 2016, after the Notice of Appeal had been filed on 15 April 2016. 

22. Whilst it may always be preferable to file an Application for stay as soon as possible after the filing of a Notice of Appeal, as I have said, I take into account that Mr Buller is a litigant in person in these proceedings – I do not consider there to have been any particular delay on his part in seeking to move the Court to stay the operation of the Orders made on 18 March pending the hearing of the appeal against them. 

23. As I understand it, the parties are to engage a little later this morning in a hearing before an Appeals Registrar in relation to the progress of the appeal itself.  It may be, albeit that this will, no doubt, depend upon compliance with whatever directions are made today or subsequent to today, that the appeal could be listed in the appeal sittings in around August or September of this year. 

24. Whether this is, in fact, the case is a matter for the Appeals Registrar and, more importantly, the parties’ compliance with any directions that may be made to progress the appeal towards hearing and determination. 

25. These matters are, as a matter of principle, relevant to the determination of Mr Buller’s existing Application.

26. Reference to the grounds of appeal contained within Mr Buller’s Notice of Appeal reveal that the grounds he advances are wide-ranging.  They appear to include a number of assertions which are not strictly grounds of appeal. 

27. The assertions include that the order is unfair and unnecessary; will have serious and detrimental effect on the children; that the Court, in essence, failed to take into account or failed to accord proper weight to the asserted impact on the children of the I Street property being sold without them having an opportunity to see it again; that the forced sale of the I Street property is unfair and unjust as it could disadvantage the children’s opportunity to live with Mr Buller there when the Court determines the parenting dispute between the parties; that there is no need whatsoever to sell the home; that there is no urgency for an order for the sale of the home as the mortgage was paid in full; that Ms Martin was deliberately trying to increase the financial pressure on Mr Buller by refusing to allow any mortgage repayments or the quantum of mortgage repayments to be decreased by the bank (despite previously having agreed to that); that there was no evidence any adverse credit reports had issued as a consequence of previous defaults in meeting mortgage repayments as and when they were required by the terms of the mortgages to be made; that there were a number of asserted factual errors in the Reasons for Judgment delivered and that Mr Buller would be seriously prejudiced in his ability to present his case at the final hearing of the proceedings between the parties if the sale of the home at I Street (being the place where he lives) was put into effect before that. 

28. Additionally, the grounds include assertions that the mortgage repayments have been made; that there is no action taken by the bank other than what is asserted to be standard pro forma correspondence; that there was no emergency requiring the sale of the property. 

29. The information in the grounds of appeal and/or the affidavit of Mr Buller filed in support also contains, though, the assertion that:

    In the end we may well have to sell the house but the children deserve to see their home again. 

30. Recourse to the submissions made orally by Mr Buller on 23 May also makes clear that his submissions emphasise the following:  namely, that if the I Street property is sold, his appeal will be rendered nugatory and that even preparing the house for sale will render the appeal nugatory. 

31. Mr Buller also emphasised that he had a desire to ensure the parties received the highest price possible for the sale of the property and could not – and was not in a position to – attend to matters necessary to prepare it for sale whilst at the same time acting for himself in the proceedings between himself and Ms Martin.  He also submitted and emphasised that it was not appropriate nor reasonable nor did he want to “dismantle” (to use his term) the children’s home, especially prior to them being afforded the opportunity to return to those premises.  He also submitted and emphasised that he would be significantly prejudiced in his ability properly to prepare for and advance his appeal if the I Street property was sold pending the hearing of the appeal. 

32. In opposing the application for a stay, submissions on behalf of Ms Martin emphasised the following: that Mr Buller’s attempts to seek a stay of the operation of the Orders amounted to him trying to prevent what was termed to be inevitable; that there was no demonstration he was reliably able to pay the mortgage; there had been default in relation to repayment  for the month of May with the consequence that the parties had incurred a fee levied by the commercial lender of the funds – with the consequence that the value of the property of the parties amenable to the property settlement proceedings between them had been further diminished (against the background of the diminishment referred to in the findings made in the Reasons for Judgment delivered in support of the orders made in March of this year); that neither party could afford to meet the mortgage repayments on a long-term basis; that, in any event, there was no guarantee the I Street property was going to be sold in the immediate future (this submission being one which I interpret as meeting Mr Buller’s submissions that his appeal would be rendered nugatory if his application for stay of the operation of the Orders pending determination of the appeal was not made).

33. It is within the context of these submissions, then, that I am to determine Mr Buller’s Application for a stay. 

34. I take into account Mr Buller’s submissions that his appeal against the March 2016 Orders may be rendered nugatory if a stay is not granted.  That clearly, as I have already said, as a matter of principle, is a substantial factor in determining whether it is appropriate to grant the stay application or not.  However, I note that the orders made in March of this year – in respect of which the appeal is on foot – provide for a mechanism for the sale of the I Street property.  They provide that the parties have a period of four months from the date of the order before the I Street property is to go to auction if it has not been sold by private treaty before then.

35. It is not the case, for example, that the I Street property is about to be sold in the sense there is a contract about to be entered into.  Rather, it is clear, as I have said, there is a time frame for the sale of the property.  Given that the parties are today before an appeals Registrar in relation to the matter and that it is open to Mr Buller to seek an order expediting the hearing of the appeal, it seems to me to be quite possible that there will not be any sale of the property pending the determination of the appeal – irrespective of whether an order is made staying the operation of the March 2016 Orders.

36. So much was clearly acknowledged by the submissions made on behalf of Ms Martin, when it was said, in effect, that there is no guarantee that the I Street property was going to be sold in the immediate future. 

37. It is clear on the material relied upon by the Respondent in opposing the Application for a stay that the arrangements for the listing of the property for sale by private treaty and the agreement of the sale or list price are very much in their infancy at this point in time.  It is also clear, from regard to the Orders made in March 2016, that in the event that the property is not sold at auction, there is to be a second auction some 14 days or so later.

38. In that sense then, it is quite conceivable that the I Street property will not be sold before the determination of the appeal against the interim Orders made in March of this year. 

39. That, I think, is a very relevant consideration when considering the submission that there is a risk that the appeal may be rendered nugatory if a stay is not granted.  I am not persuaded that that is the case at all.  As I have said, the parties are simply, it seems to me, very much at the preliminary stages of implementing a process for sale.  I do not accept the submission made by Mr Buller to the effect that even preparing the house for sale will render his appeal nugatory.  There is, in my view, no sense in such a submission. 

40. The evidence before the Court at the hearing on 23 May 2016 suggested that it may be that the agreed listing price between the parties in relation to the I Street property may be $275,000.00.  I have deliberately used the term “may” in outlining these matters to specifically indicate that they certainly could not be regarded as having been completely agreed or set in stone.  However, that seemed to be the information before the court as at 23 May 2016.

41. If realised, a sale at such a price would appear to make net proceeds available to the parties (exclusive of the costs associated with sale) in an amount of about $56,000.00.  That is, after taking into account the amount of the existing loan secured by mortgage over the property. 

42. It is within this context, then, that the submissions made on behalf of the Respondent as to the diminution of the value of the property of the parties amenable to the property settlement proceedings between them must be taken into account.  Whilst it may easily be said that those costs are of themselves of a relatively minimal amount, context is, it seems to me, everything.  Every aspect of the diminution of the value of the property of the parties is, in this case, of significance. 

43. So too is the evidence as to the previous draws by Mr Buller upon the superannuation funds available to him to meet outstanding mortgage liabilities.  That, too, has had, arguably, the effect of diminishing the value of the property of the parties and that remains, in the circumstances of the material before the Court, a risk of the same into the future. 

44. I take into account also that the grounds of appeal as outlined in the Notice of Appeal and as further supplemented by the affidavit prepared by Mr Buller and filed in support of the same, involved many assertions of a miss-exercise of discretion.  These, like all grounds of appeal in which there is asserted to be an error in the exercise of discretion, will face the difficulties arising from application of the principles enumerated in cases such as House v The King. 

45. I take into account the submissions made by Mr Buller in relation to the prejudice he says he will suffer in the event that a stay is not granted.  However, as I have already said, I consider that this is not a case in which the sale of the property can be seen as imminent.  There is, it seems to me, nothing to suggest that a sale is likely to occur imminently or at any time prior to the time at which an appeal may, if sought on an expedited basis, be listed for determination by the Full Court of this Court.

46. I am not persuaded that Mr Buller has discharged the onus, cast upon applicants seeking a stay of the operation of orders pending appeal, of establishing sound and clear reasons to justify the granting of a stay.

1. For these reasons, I dismiss the Application for a stay. 

2. On 23 May, submissions were also made by Ms Martin’s legal representative to seek an order that in the event that it was dismissed Mr Buller pay the costs of an incidental to the Application for a stay.  Specific submissions were made which sought an order specifying the payment of a specific amount. 

3. Mr Buller opposed the making of such order. He submitted, primarily, that regard should be had to the starting point in proceedings under the Act – that starting point being as prescribed by s 117(1) of the Family Law Act to the effect that parties to proceedings under the Act bear their own costs.

4. He submitted that the Court would not be persuaded that the circumstances justified the making of an order for costs. 

5. I intend to make an order reserving the determination of the Application for costs of the Application in a Case seeking a stay filed on 16 May 2016 to the trial judge. 

6. Whilst submissions were made in relation to fixing the quantum of any order, I note that there is no evidence before the Court from which any factual findings could be made as the basis for determining that a specific amount by way of costs (as sought) is proper. 

7. I also take into account in arriving at this determination that the trial judge, who is ultimately to hear the proceedings between the parties, is likely to be in the best position to know the actual financial position of the parties; to receive evidence in relation to their financial contributions to the costs of the support of the children; and to know clearly their respective financial positions and likely future financial positions. 

8. In any event, I take into account also that, even if I had been persuaded to make an order as sought by Ms Martin, satisfaction of any such order would have awaited the finalisation of the proceedings between the parties, taking into account the financial circumstances as known to me, and as summarised in the Reasons for Judgment I delivered on 18 March 2016.

9. I direct that a copy of the Order, once finalised, be forwarded to the parties.  I direct that a copy of the Reasons for Judgment I have delivered orally this morning, once settled, be provided to the parties. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 May 2016.

Associate:     

Date:              30 May 2016