Cornett & Hext
[2021] FedCFamC1F 181
•8 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cornett & Hext [2021] FedCFamC1F 181
File number(s): MLC 5714 of 2018 Judgment of: WILLIAMS J Date of judgment: 8 November 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for Stay of Orders pending Notice of Appeal being determined – Consideration of the principles identified in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 – Application dismissed Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
House v The King (1936) 55 CLR 499
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 3 November 2021 Place: Melbourne The Applicant: Litigant in-person Counsel for the Respondent: Ms Dellidis Solicitor for the Respondent: Kenna Teasdale Lawyers ORDERS
MLC 5714 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CORNETT
Applicant
AND: MR HEXT
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
8 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding filed 12 October 2021 is 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).
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 the pseudonym Cornett & Hext has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
This is an application by the wife for a stay of orders made by this Court on 13 May 2021.
On 9 June 2021, the wife filed a Notice of Appeal against certain property and spousal maintenance orders which were made after a lengthy trial where the parties were in dispute about both parenting and property. There is no appeal against the parenting orders. The appeal is listed for hearing on 12 November 2021.
On 12 October 2021, the wife filed an Application in a Proceeding seeking a stay of property and spousal maintenance orders. In her application the wife also seeks a suite of orders which include:
(a)the husband making various payments to her, namely:
(i)rent of $3,258 for November 2020;
(ii)“back maintenance” of $6,500;
(iii)her costs from 17 November 2020 fixed at $12,500;
(iv)outstanding family Court fees of $4,450;
(v)$1,300 every Thursday until the determination of the appeal;
(vi)$10,000 “to support her appeal”;
(vii)$50,000 to enable her to purchase a car and furniture;
(viii)payment of $1.1 million into a trust account independent from the husband’s lawyers, chosen and agreed upon by the wife until all legal avenues have been exhausted;
(ix)the costs of this application;
(x)payment of “back rent” of $11,248;
(xi)payment of $6,000 equivalent to 50% of “unused ICL fees”
(b)orders against the husband’s solicitors seeking disclosure and payment to the wife of “all costs which the husband will expend in relation to the family Court appeal.”
The application filed on 12 October 2021 was listed for determination on 18 October 2021. On that day, without prior notice to the husband’s counsel, the wife made an oral application seeking I recuse myself. There was no affidavit filed in support of the oral application. Counsel for the husband was not in a position to respond to the application without appropriate notice and both applications were adjourned for hearing on 3 November 2021.
On 3 November 2021, the wife advised the Court that she no longer sought to proceed with the recusal application.
At the commencement of the application, the wife was asked to identify the Court’s source of power to make orders as sought by her both against the husband and his solicitors, noting that the solicitors are not now and never have been parties to the proceedings.
The wife was unable to identify the source of power to enable the court to make orders as sought by her and accordingly the application proceeded only as an application for a stay of certain Orders made on 13 May 2021.
Documents relied upon by the parties
The wife relied upon the following documents:
(a)Application in a Proceeding filed 12 October 2021;
(b)affidavit in support filed 11 October 2021;
(c)Notice of Appeal filed 9 June 2021.
The husband did not file any responding documents and relied upon submissions made by his counsel.
Applicable Law- Stay application
The Full Court of this Court referred to the applicable principles relating to a stay application in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton”). At [18] their Honours Bryant CJ, Boland and Crisford JJ said:
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.
The submissions on behalf of the wife were difficult to follow and did not address the factors relevant to granting a stay. Doing the best I can, the wife’s complaints and submissions are as follows:
(a)the imbalance of power between a self-represented litigant and the husband’s legal team, in particular her application for reinstatement of the appeal;
(b)the husband’s financial disclosure to the Court was not complete and the Court did not “sift these issues credibly or consider these omissions”;
(c)her current circumstances where she claims she is destitute and has virtually no possessions;
(d)all funds received by her as partial property settlement were applied towards payment of her legal funds;
(e)the husband consistently adopted a tactic of withholding funds from her, whilst he received his salary and bonus payments;
(f)because the husband drew down on mortgages encumbering the former matrimonial home she asserts that the husband used “my house as collateral to pay not only his own legals but also those of his girlfriend’s as well as paying his and her bills and credit cards”;
(g)a comment by the husband’s Senior Counsel during the hearing on 17 November 2020 about whether he was paid fees or not;
(h)the husband’s failure to take the children on holidays during Christmas 2020 and his failure to have the children communicate with their mother;
(i)her credit card debt of $12,000 was only able to be cleared at the end of the proceedings, despite her having paid well over $1 million in legal fees;
(j)she has no funds to meet her medication and medical professional costs;
(k)the order for payment of 50% of the single expert witness costs is unfair as she only received 25% of the asset pool;
(l)the order for a psychiatric assessment of her by Dr UU was unfair and she should not have to meet the cost of same;
(m)her objection to the asset pool referred to in the judgment;
(n)her disagreement with the judgments interpretation of orders made on 28 June 2018;
(o)the unfairness of the husband being able to purchase a new car for himself when she was not provided with a motor vehicle and therefore had to avail herself of public transport;
(p)the husband drawing down the mortgages secured against the former family home;
(q)failing to accept her contended asset pool;
(r)failure to give weight to her contributions during the marriage;
(s)prejudicial “sanctioning of belittling commentary regarding my disability during trial and its marginalising and bullying effects on myself”;
(t)the inequity of the husband paying his legal fees from joint assets, whereas she was forced to obtain litigation funding;
(u)various irregularities in relation to documents subpoenaed from Q Lawyers during the trial;
(v)failure to make an order for spousal maintenance in excess of the one which was made;
(w)mistakes in composition of the asset pool.
The submissions on behalf of the husband addressed the relevant considerations for granting of the stay. I will address each of the categories of submissions in turn.
First I will address the submissions pertaining to bona fides. Counsel for the husband submitted:
(a)the wife failed to take any steps to apply for a stay until five months after the orders were made and reasons were delivered;
(b)that is an extraordinary length of time and the delay the bona fides of her stay application;
(c)her claimed ignorance of the law is not a satisfactory explanation;
(d)the relief sought by her in her Application in a Proceeding is demonstrative of her restlessness and lack of bona fides;
(e)the application is a manifestation of the court’s findings at [296] of the judgment that the wife will continue to make complaints against the husband.
Secondly, I will address the submissions as to whether a stay would render an appeal nugatory. They were as follows:
(a)the funds in the husband’s solicitors trust account have already been disbursed, including the wife receiving her entitlement in accordance with the orders;
(b)she does not propose to reinstate the funds she received in May 2021;
(c)the husband has converted the funds he received into property which would be sufficient security to pay the amount claimed by the wife, should she succeed with her appeal.
Thirdly, I will address the grounds and merits of the wife’s appeal. The submissions were as follows:
(a)the main focus of the grounds of appeal in the wife’s Notice of Appeal are challenges to weight;
(b)the wife faces the usual problems inherent in challenging a discretionary judgment;
(c)she does not challenge the adverse credit findings in the judgment;
(d)she challenges the percentage division in circumstances where her own counsel, in January 2020 submitted that a large portion of the wife’s property settlement would be applied towards her legal fees and she would be left with very little;
(e)the ground that the court failed to provide proper reasons has no merit given that the judgment exceeded 100 pages and addressed the reasoning pathway;
(f)there were no submissions made on behalf of the wife as to percentage entitlement during her counsel’s final submissions, only comments about her demeanour and its impact and capacity on her to hold a job;
(g)the complaint about failure to take into account medical expenses has no merit given that these future costs and expenses were not quantified at trial;
(h)the claim of failure to deal with chattels is a mere assertion as there was no evidence as to chattel distribution presented to the court;
(i)her assertions that the husband used joint assets to pay his legal fees is contrary to the concessions made by him to add back $350,000 into the asset pool and the final submissions of his Senior Counsel;
(j)all of the foregoing supports the considerable doubts as to the merits of the appeal.
Fourthly, I will address the delay in making a stay application. The orders which the wife seeks to appeal were made on 13 May 2021 and her Notice of Appeal was filed on 9 June 2021. The current application to stay the orders was filed on 12 October 2021. Counsel for the husband submitted that the funds held in the husband’s solicitors trust account were distributed to the parties in May 2021 and that “the horse had bolted”. The wife has had the benefit of her share of the proceeds of sale and she has not provided any explanation why the stay application was filed four months after the filing of the Notice of Appeal and one month prior to the hearing of the appeal.
Counsel for the husband submitted that the wife had failed to persuade the Court that it should exercise its discretion to grant a stay.
Discussion
I will address the submissions of both parties in the context of the relevant principles, as referred to in Aldridge & Keaton.
Firstly, the husband is entitled to the benefit of the judgment and to presume the judgment is correct. That is particularly so in the context of the history of the protracted proceeding, when the funds in trust were distributed many months ago and the wife’s delay in filing an application to stay the orders;
Secondly, subsequent to filing a Notice of Appeal there was a delay of over four months prior to the wife filing a stay application. There has been no explanation for the delay provided by the wife.
Thirdly, the bona fides of the wife. I agree with and adopt the submissions of counsel for the husband as to the lack of bona fides of the wife. The current application is as foreshadowed in the judgment, namely the wife will continue to make applications to the court as she is no doubt aggrieved by the court process and will not accept responsibility for her part in protracting the proceedings and incurring astronomical legal costs.
Fourthly, the granting of a stay on terms that are fair to all parties. If a stay of the orders made 13 May 2021 were granted, which includes a stay on the discharge of all previous orders for spousal maintenance, the husband would be obliged to continue to pay the wife’s spousal maintenance in accordance with interim orders made prior to a final judgment notwithstanding that the wife has received her entitlement to a property settlement. As the appeal is listed for hearing in less than a week, I do not consider it appropriate to require the husband to recommence payment of spousal maintenance to the wife pending the determination of the appeal.
There is no utility in staying orders referable to the disbursement of funds in the husband’s solicitors trust account, as these funds were disbursed in May 2021. It is also questionable why orders providing for a stay of a split of the parties superannuation entitlements would be necessary. The husband is not presently entitled to access his superannuation entitlements, and in the event the wife’s appeal in this regard is successful, there would be sufficient funds in his superannuation entitlements to enable a further split of superannuation in favour of the wife.
Fifthly, whether the appeal will be rendered nugatory if the stay is not granted. In this case, if there is no stay of the orders of 13 May 2021, the wife’s appeal will not be rendered nugatory. What may impact the appeal is the prior disbursement of the funds held in trust.
Sixthly, a preliminary assessment of the strength of the proposed appeal. The Notice of Appeal sets out five grounds of appeal.
Ground one complains that the primary judge failed to take into account future medical expenses of the wife to enable her to address issues to re-establish time with the children. As submitted by counsel for the husband, during the trial the wife did not adduce any specific evidence about her future medical expenses. The final parenting orders do not make provision for the wife to re-establish her time with the children.
Grounds two and three are effectively weight challenges to a discretionary judgment. The wife faces all of the inherent problems in challenging a discretionary judgement: House v The King (1936) 55 CLR 499.
Ground four asserts that there was an absence of any or adequate reasons as to the adjustment of the parties’ entitlement to their property, despite lengthy reasons and a discernible reasoning pathway.
Ground five appears to be another weight challenge to a discretionary judgment and an assertion that the primary judge failed to take into account the wife’s litigation funding. There were no submissions made by counsel for the wife about the impact on an adjustment of property arising from litigation funding, and it would be difficult to contemplate how such a submission could have been made.
I am of the view that there are considerable difficulties which the wife will face in pursuing her appeal.
Upon balancing the relevant considerations I determine that the wife’s application for a stay of the Orders of 13 May 2021 should be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 8 November 2021
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