Creighton & Creighton (No 5)
[2023] FedCFamC1F 424
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Creighton & Creighton (No 5) [2023] FedCFamC1F 424
File number(s): MLC 6907 of 2019 Judgment of: JOHNS J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE – stay application – where applicant filed Notice of Appeal against costs orders made 6 March 2023 – where applicant seeks stay of enforcement of the costs orders – where appeal has been heard and dismissed –where no enforcement proceedings on foot – where stay application has no merit – stay application dismissed
FAMILY LAW - Application for adjournment – application refused
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 13.12 Cases cited: Aldridge v Keaton [2009] FMCAfam 314 Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 11 May 2023 Place: Melbourne Counsel for the Applicant: Self-Represented Solicitor for the Respondent: Ms Sanders, Taussig Cherrie Fildes ORDERS
MLC 6907 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CREIGHTON
Applicant
AND: MS CREIGHTON
Respondent
order made by:
JOHNS J
DATE OF ORDER:
11 MAY 2023
THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding filed 3 April 2023 be 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 Creighton & Creighton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
On 6 March 2023, I made an order for costs in the following terms:-
That within 28 days of the date of these orders the husband pay the wife’s costs of and incidental to these proceedings on an indemnity basis fixed in the sum of $176,010.00.
The husband filed a Notice of Appeal in respect of that order on 3 April 2023. Part F of the Notice of Appeal states that the husband seeks orders as follows:-
1.Rescinding of costs order
2.Reversal of the costs order with all the applicants [sic] costs from January 2019 to be reimbursed by the respondent…
3.Retrial - in the interests of Natural Justice for the 3 children
On 3 April 2023, the husband also filed an Application in a Proceeding in which he sought an order in the following terms:-
Stay of enforcement of costs order of Her Honour Justice Johns dated 6 March 2023
That application is supported by the husband’s affidavit filed the same day. The wife, through her Solicitor, has indicated that she opposes the husband’s application to stay the enforcement of the costs order.
The husband has, by letter, sought an adjournment of the hearing of his application. That request was first made on 1 May 2023 by email. That day, the husband informed the Court that he was unable to attend the listed hearing date, being 3 May 2023, due to the sudden passing of his mother three days earlier. At that time, the husband indicated to the Court that he sought an adjournment of the proceedings until on or after 8 June 2023, contending that that was the traditional religious period of mourning.
Following receipt of that communication from the husband, my Chambers was notified of a decision made by the Appeals Registrar on 27 April 2023, there having been a hearing before the Appeals Registrar as to the question of whether or not the husband’s notice of appeal ought be summarily dismissed.
On 27 April 2023, the husband’s Notice of Appeal filed 3 April 2023 was dismissed. In light of that information, on 2 May 2023, my Associate caused an email to be sent to the husband which states in part:-
…
In light of the orders made on 27 April by [a Judicial Registrar] dismissing the Notice of Appeal filed 3 April 2023, please advise the Court as to your position with respect to the Application in a Proceeding filed 3 April 2023. In the event that you wish to be heard in relation to that application it will be listed at 9.30 am on 11 May 2023. Alternatively, if you intend to discontinue/withdraw that application upon filing of the relevant notice the matter can be disposed of in Chambers without the necessity for a hearing.
The husband did not respond to that email communication. Accordingly, the Application in a Proceeding filed by him has been listed for hearing this day. The husband, who is representing himself, appeared by telephone. The wife was represented by her solicitor, who appeared in person.
During the course of his submissions, the husband has renewed his application for an adjournment of the proceedings. The husband maintains that he continues to observe the mourning period following the death of his mother. The traditional mourning period expired at the beginning of this week. It was on that basis that the matter was listed to this day. Accordingly, I do not consider that that is a basis for an adjournment of the proceeding.
The husband also submitted to the Court that he is unwell and that he believes that he has Covid-19. Nonetheless, he been able to actively participate in the hearing today. He has made submissions both as to the merits of his application before the Court and also in relation to his adjournment application.
The husband’s primary position is that he cannot afford to meet the costs order. I was referred to his affidavit where he set out what he asserts to be his financial position. Those matters do not go to the issue of whether or not the operation of the costs order ought be stayed.
In my view, there is no utility in adjourning this proceeding further in circumstances where there is no appeal nor any enforcement proceedings on foot. To delay the matter is to impose a further costs burden on the wife; she is entitled to the fruits of the litigation. To adjourn the matter is also to impose a further costs burden on the community. The Court has devoted significant resources to the disposition of these proceedings. In light of my assessment as to the husband’s application having little merit I am not persuaded that there ought be any further delay in the finalisation of this application.
Accordingly, the husband’s adjournment application is refused.
As to the husband’s stay application, the position of the wife is as follows:-
·Firstly and primarily, she states that the husband’s application ought be dismissed as it has no merit. She relies upon the fact that the Notice of Appeal which underpins the stay application has been dismissed. As a result, it is submitted that the husband’s application cannot be maintained.
·Secondly, she notes that there is no current Enforcement Application before the Court. Therefore, there is no enforcement proceeding to be stayed, as is sought by the husband.
The reality is that in circumstances where there is no appeal before the Court, there is no arguable legal basis for a stay of the proceedings.
These proceedings have had a long history before the Court. The parties’ competing parenting and property applications were heard in August and September 2022 and concluded with the making of final orders on 15 December 2022. I refer to and rely upon my reasons for judgment delivered that day which sets out much of the background of the proceedings.
As to the husband’s stay application, Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the basis upon which a stay application ought be filed.
The principles relating to the granting of a stay pending an appeal are well-known and are conveniently set out by the Full Court in the decision of Aldridge v Keaton [2009] FMCAfam 314. The discretion to stay the operation of orders should only be exercised where circumstances exist which justify a departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation, pending the determination of any appeal.
Circumstances that might justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory, or where there is a real risk that it will not be possible for a successful appellant to be restored to his or her former position if the orders are executed. In determining that question, the Court should consider the prospects of the appeal and where the balance of convenience lies between the parties.
As I have already observed, there is no pending appeal in relation to the costs order made on 6 March 2023, the enforcement of which the husband seeks to stay.
I note, in passing, that the Notice of Appeal filed by the husband in conjunction with his application in a proceeding set out 39 apparent grounds that he relied upon in support of his discharge of the costs order. None of the purported grounds addressed the cost order or the accompanying reasons for judgment. The husband does not, in his Notice of Appeal, identify any error of law or principle in relation to that decision that would found an arguable appeal in relation to the costs order. Rather, the husband’s grounds of appeal are little more than a series of complaints related to the final hearing that concluded on 1 September 2022 and culminated in the final orders made 15 December 2022. Those orders are not the subject of appeal.
I note that the husband during the course of submissions today has repeated some of those complaints, which include:-
·An alleged bias by me in relation to the disposition of the matter;
·A denial of natural justice for the husband and for the children of the marriage;
·A complaint that the husband could not hear submissions made by Senior Counsel for the wife during the course of the final hearing;
·The refusal by me to permit the husband leave to call witnesses and file material;
·Complaints in relation to the conduct of the husband’s previous Legal Aid Lawyer;
·Complaints regarding the conduct of the Independent Children’s Lawyer; and
·Complaints regarding Counsel briefed to represent the Independent Children’s Lawyer.
The affidavit filed by the husband in support of his application for a stay of the operation of the orders does not address any matters related to the costs order the subject of the appeal. Rather, it is an attempt by the husband to adduce evidence as to the history of the parties’ relationship, the parties’ financial interests and parenting issues.
In effect, it appears to be an attempt by him to adduce trial evidence in circumstances where the trial has concluded and final orders have been made. In circumstances where the husband’s appeal has been dismissed, I am satisfied that the Application in a Proceeding should be dismissed. I will make an order to that effect.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 11 May 2023