Crawford and Crawford

[2007] FamCA 70

FAMILY COURT OF AUSTRALIA

CRAWFORD & CRAWFORD [2007] FamCA 70

FAMILY LAW - PROCEDURE - Stay of orders pending appeal

Family Law Act 1975 (Cth), s.79A(1)(a)

APPLICANT: Mr Crawford

RESPONDENT: Mrs Crawford

FILE NUMBER: MLF 5587 of 2002

DATE DELIVERED: 29 January, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 29 January, 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: The husband in person

COUNSEL FOR THE RESPONDENT: Mr. Bartfeld QC

SOLICITOR FOR THE RESPONDENT: Mahonys, DX 356, Melbourne

Orders

1. That the form 2 application filed by the husband on 16 January, 2007 be dismissed. 

1. That the husband pay the wife’s costs of and incidental to the following applications, the quantum of costs to be agreed and, if not agreed, assessed pursuant to the Family law Rules 2004 and that such costs include counsel’s fees as paid, including senior counsel fees :

   (a)form 2 application filed by the husband on 16 January, 2007;

   (b)form 2A response filed by the wife on 25 January, 2007.

1. That the form 2 application filed 16 January, 2007 and form 2A response filed 25 January, 2007 be otherwise dismissed and removed from the list of cases awaiting finalisation.

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5587  of 2002

Mr Crawford

Applicant

And

Mrs Crawford

Respondent

REASONS FOR JUDGMENT

1. This matter has, as the husband has noted, a considerable history in the court. After lengthy litigation, final property orders were made, by consent, on 1 February 2006 by Bennett J. When the wife sought to enforce those orders, the husband filed an application to set them aside pursuant to the provisions of s.79A(1)(a) of the Family Law Act 1975.

1. On 16 August, 2006 Young J made a number of directions.  It seems from the husband's affidavit that he was unhappy that his Honour did not dispose of the s.79A application in his favour there and then, but adjourned it for later hearing.

1. The application to set aside came before me on 14 November 2006.  Sworn evidence was given and the husband cross-examined.  On that day I delivered a judgment;  the application to set aside the orders of 1 February 2006 was dismissed.  I then made a number of orders in the nature of enforcement of the orders of 1 February, 2006.

1. As is his right, the husband filed a notice of appeal against my orders of 14 November, 2006.

1. On 16 January, 2007 this year the husband filed a form 2 application.  By then, he was acting for himself.  In the application the husband sought that the orders of 1 February, 2006 be stayed, pending determination of the appeal to which I have adverted.  He also sought an order that in the event the former matrimonial home in N had been sold (pursuant to the final orders) and pending determination of the appeal, the net proceeds of the sale be held in an interest-bearing account in the name of the parties.  In support of that application, the husband filed an affidavit sworn on 16 January, 2007.

1. In light of discussions with him this morning, it appears that what the husband may have intended was to appeal against the final orders made by consent on 1 February, 2006.  There is no mention of those orders in his notice of appeal;  it is an appeal only against my orders of 14 November, 2006.  Those orders are, of course, relevant to his complaint about the earlier order.

1. An appeal must be filed within one month of the making of the orders to which it relates.  The husband is well out of time in respect of the orders of 1 February, 2006.  Were he to apply for leave to appeal out of time in respect of those orders, the Court would have to take account of the fact that he earlier filed an application to set aside those very same orders, and was unsuccessful, and is appealing against that decision.  Were he to succeed in his current appeal, and (whether by order of the Full Court or order of a subsequent trial judge) were his application to set aside the February orders to succeed, the original applications for final property orders would then be reheard.

1. On the face of the documents, there is no connection between the order in respect of which the appeal is made (the order of 14 November, 2006) and the order which the husband seeks stayed pending the determination of his appeal (the order of 1 February 2006), but the husband’s intention is clear.  Without the consent of the wife, I propose to allow the husband to amend his form 2 application to seek (as an addition or in the alternative) that the orders made by me on 14 November 2006 be stayed.

1. The notice of appeal was prepared by the husband himself.  On its face, it includes no grounds referable to the order appealed against, being the order of 14 November, 2006.

1. In the notice of appeal the husband asserts that the final property orders are an abuse of process and are not just and equitable.  He refers to his belief that the wife contributed 1 per cent and he 99 per cent, and he adverts to what may be either a typographical error, or a minor factual error, as to the date of separation of the parties.

1. The husband then sets out in the notice of appeal the fresh final property orders which he seeks.  In essence he seeks that each party keep what they had on 1 February, 2004, a significantly different order to those made, by consent, on 1 February, 2006.  Further, he seeks what he has told me is an order for maintenance for the wife, being an order which would enable her to draw $1,000 a week on an allocated pension.  Finally, he seeks costs incurred since he filed an offer prior to the final orders being made on 1 February, 2006.

1. It is difficult for a litigant to act for him or herself in proceedings of this sort.  I understand the husband’s desire to cut through what he sees as bureaucrat red tape and unnecessary regulation to get to the heart of the issue as he sees it.

1. The husband’s current appeal is against the orders made on 14 November 2006.  The Court cannot ignore that reality.  I have allowed him to vary his application to seek a stay of both sets of orders but I cannot redraft his notice of appeal.

1. In considering a stay, the court has to balance a number of factors.  Is it likely that the fruits of successful litigation will be lost if a stay is not granted?  What are the merits of the respective appeals?  What is the potential prejudice to each of the parties if the stay is granted, or is not granted?

1. A trial judge must be cautious when considering the merits of an appeal, but this is an unusual case.  I have looked at the husband’s notice of appeal.  There must be significant doubt as to whether it a competent appeal.  The success of the appeal is not a matter for me;  it is a matter for the Full Court.  But it is easy to imagine an outcome that will not only disappoint the husband but expose him to a potential costs order.  The chance of a successful appeal as drawn must be said to be exceedingly low. 

1. Taking every care to consider possible prejudice to the husband, there is nothing in the evidence that satisfies me that the fruits of litigation are likely to be lost to him were an appeal successful.  There is no evidence before me of past waste or improper disposal of assets by the wife. 

1. In those circumstances, I cannot find it appropriate to stay either my orders or Bennet J’s orders and I do not do so.  The husband’s form 2 filed 16 January will be dismissed.

1. The wife makes an application for her costs of and incidental to the form 2 and her form 2A response.  The husband’s application has been dismissed;  he has been wholly unsuccessful.  I do not find it appropriate to reserve the costs, as he has submitted.  I have heard the case and dismissed the application.  The wife has had to incur the expense of meeting an application I have found to be without merit.  I am satisfied the husband should pay the costs. 

I certify that the preceding
18 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.