Dekker & Rapallino (No 2)
[2024] FedCFamC1F 726
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dekker & Rapallino (No 2) [2024] FedCFamC1F 726
File number: DGC 4162 of 2018 Judgment of: HARTNETT J Date of judgment: 1 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Property – Where the wife filed a Notice of Appeal – Where the wife made application for recusal on the ground of actual bias – No actual or apprehended bias established –– Recusal refused – Stay of totality of orders made by the trial judge as sought by the wife not granted – Agreed orders stayed - The wife to pay the husband’s party and party costs Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Schedule 3
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Colgate-Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801
Dekker & Rapallino [2024] FedCFamC1F 462
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Isbester v Knox City Council (2015) 255 CLR 135
Johnson v Johnson (2000) 201 CLR 488
Mallet v Mallet (1984) 156 CLR 605
Munday v Bowman (1997) FLC 92-784
Nagel v Clay (2020) 60 Fam LR 550
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128
Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 21 October 2024 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the Respondent: Mr Kaufman Solicitor for the Respondent: Berry Family Law ORDERS
DGC 4162 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RAPALLINO
Applicant
AND: MR DEKKER
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Orders 3, 4 and 5(j)(iii) of the final property orders of 11 July 2024 continue in full force and effect.
2.Subject to Order 1 herein, the final property orders of 11 July 2024 be stayed in their operation pending determination of the wife’s appeal listed for hearing before the Full Court on 18 November 2024.
3.The wife’s Application in a Proceeding filed 16 September 2024 is otherwise dismissed.
4.The wife pay the costs of the husband fixed in the sum of $8,623.97.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Dekker & Rapallino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
The primary issue before the Court was contained in an Application in a Proceeding filed 16 September 2024 by the applicant wife (“the wife”) wherein the wife sought a stay of the final property orders made 11 July 2024. Additionally, the wife sought leave to inspect material produced under subpoena to Berry Family Law filed 29 November 2023. The wife, in a second Application in a Proceeding filed 18 October 2024, sought that I recuse myself from hearing the stay application.
At the hearing, the wife sought leave to make an oral application as to costs, to which the respondent husband (“the husband”) did not object. Leave was granted, and the wife sought her costs be reserved. Subsequently, the wife indicated that she sought the husband pay her indemnity costs on the stay application. I note that the wife is a litigant in person.
The husband sought that the wife’s Application in a Proceeding filed 16 September 2024 be dismissed and that the wife pay the husband’s costs of and incidental to the application on an indemnity basis or, in the alternative, that the wife pay the respondent’s costs calculated pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
MATERIAL RELIED UPON
The wife relied upon:
(1)Applications in a Proceeding filed 16 September 2024 and 18 October 2024; and
(2)her affidavit filed 16 September 2024 and affidavits filed 18 October 2024 (there were two).
The husband relied upon:
(1)Response to an Application in a Proceeding filed 17 October 2024;
(2)his affidavit filed 17 October 2024; and
(3)Outline of Case filed 17 October 2024.
BACKGROUND
On 11 July 2024, final property orders were made as follows:
THE COURT ORDERS THAT:
1. Within 60 days hereof, the applicant husband (“the husband”) do all acts and things and sign all documents necessary to transfer to the respondent wife (“the wife”) all his right, title, and interest in the property known as and situate at [C Street, Town D] in the State of Victoria (“the [Town D] property”), at the wife’s expense as to conveyancing costs.
2. Contemporaneously with the transfer of the property as outlined in Order 1 above, the wife is to pay the husband the amount of $169,910 (“the payment”) to the Berry Family Law Trust Account.
3.Pending the transfer of the [Town D] property to the wife and the payment to the husband:
(a)the wife have sole right to occupy the property and shall meet all mortgage repayments, rates and other outgoings for the property;
(b)the wife maintain comprehensive insurance for the [Town D] property at her expense;
(c)the parties hold their respective interests in the [Town D] property upon trust for one another pursuant to these orders; and
(d)each party is prohibited by injunction from further encumbering the [Town D] property without the consent in writing from the other party and existing mortgagee.
4.Each party is prohibited from drawing down on or increasing the balance of the property mortgage without the other party’s consent.
5.If the wife does not make the payment within 60 days hereof, the husband and the wife forthwith do all acts and things and sign all such documents as are necessary to immediately sell the [Town D] property and for that purpose:
(a)within seven (7) days, the wife nominate three agents to list the property for sale and the husband shall select one agent from the list within seven days of receiving the wife’s nominations;
(b)within seven (7) days the husband nominate three conveyancers/lawyers to perform the conveyancing works and the wife select one conveyancer/lawyer from the list within seven days of receiving the husband’s nominations;
(c)in the event one party defaults on their obligations under this Order, the other party shall make the selection;
(d) if a cost associated with the sale is required to be paid upfront, each party shall pay one half of that cost;
(e) the parties shall jointly determine the method of sale, listing price, reserve price, sale price and terms of sale and in default of agreement the price or term is to be determined by the agent;
(f) the property is to be sold in its present condition save for any repairs or improvements agreed between the parties in writing;
(g) the parties co-operate with the agent in relation to the marketing of the property for sale, including making the key readily available, always allowing inspection of the property as reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection;
(h)both parties are permitted to attend meetings with the agent, to negotiate with any prospective buyer and to attend the property for the auction;
(i) upon agreement being reached for the sale, the parties execute in a timely manner, the Contract of Sale, the Mortgage Discharge Authority, any VOI or other document necessary to complete the sale upon their submission to them by the real estate agent or conveyancer;
(j) the parties do all acts and sign all documents necessary to distribute the proceeds of sale of the property in the following manner and priority:
(i) to pay the costs of the sale, including any agent’s commission and advertising expenses, and the conveyancer’s costs;
(ii) to discharge any mortgage encumbering the property;
(iii)to pay to the husband the payment together with any interest accrued on any part of that payment still outstanding at the rate as provided for in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(iv) the balance then remaining to be paid to the wife.
6.The wife pay to the husband one half of the four valuation fees incurred by the husband in respect of the single expert valuations of the properties known as and situate at [1 E Street, Town F]; [2 E Street, Town F]; [C Street, Town D]; and [G Street, Suburb H] and such payment be made by the wife to the husband’s solicitors within 60 days of the making of these orders.
7.The Court allocates, as required by s 90XT(4) of the Act, a base amount of $50,000 to [Mr Dekker] (“the non-member party”) out of the member interest of [Ms Rapallino] (“the member party”) in [Superannuation Fund 1].
8. In accordance with s 90XT(1)(a) of the Act:
(a)the non-member party (or the non-member party’s financial manager, administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)the entitlement of the member party in the member party’s superannuation interest (or the entitlement of such other person who becomes entitled to receive a payment out of the member party’s superannuation interest) is correspondingly reduced by force of this Order.
9.The Trustee of the Fund do all such acts and things and sign all such documents as may be necessary to:
(a) calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the non-member spouse in the immediately preceding clause of this Orders;
(b)pay the entitlement whenever the trustee makes a splittable payment from the wife’s interest in the Fund.
10.This order has effect from the operative time and the operative time is the beginning of the day four days after this order is made.
11. After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the Regulations”) the member spouse shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising the non-member spouse’s request in accordance with the Regulations for the transfer or rollover of the non-member spouse’s interest in the member spouse’s name in the Fund.
12.There be liberty to each party and the Trustee of the Fund to apply regarding the implementation of these Orders affecting the interests of the non-member spouse and the member spouse in the Fund.
AND THE COURT NOTES THAT:
A.The value of the non-member spouse’s interest is calculated in accordance with the SIS Regulations; and
B. Any payments from the member spouse’s superannuation interest in the Fund made after the Trustee has created a new interest in the non-member spouse’s name in the Fund are not splittable payments in accordance with the requirement of the Family Law (Superannuation) Regulations 2001.
AND THE COURT ORDERS THAT:
13. Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these Orders:
(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders with the wife to retain the furniture and household effects in the [Town D] property;
(b) each party retain their own bank accounts, including any credit card accounts or personal loan accounts;
(c) the parties do all things and sign all documents necessary to close any joint accounts, and any funds remaining in any joint account shall be divided equally between the parties;
(d)insurance policies remain the sole property of the owner named therein;
(e) each party be solely liable for and indemnify the other in relation to all debt and liabilities in their name or attaching to any item of property to which that party is entitled pursuant to these Orders; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
14.In the event that any party refuses or neglects to comply with any provision of these orders a Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders.
15. Each party pay their own costs of and incidental to the proceeding.
16. Otherwise, all extant property applications be dismissed.
(“the final property orders”)
On 8 August 2024, the wife filed a Notice of Appeal. She appeals the totality of the final property orders made 11 July 2024. Pursuant to procedural orders made by the appeal judicial registrar on 18 September 2024, the appeal is listed for hearing before the Full Court on 18 November 2024.
On 1 October 2024, the husband caused his solicitors to write an open letter to the wife, enclosing a proposed minute of consent orders which provided that the husband would not enforce the sale of the former matrimonial home situate at C Street, Town D in the State of Victoria, in which the wife resides, until the determination of the appeal and further that the husband would agree to a stay of Order 6 of the final property orders. The husband, however, indicated that in any stay of the final property orders, interest on any outstanding payment due to the husband should continue to accrue pursuant to Order 5(j)(iii) of the final property orders.
It is agreed that the husband was willing to transfer his interest in the former matrimonial home to the wife in accordance with Order 1 of the final property orders, but that the wife opposed making “the payment” due to the husband as described in Order 2 of the orders. The wife submitted that it was only Berry Family Law “who basically gets the money”, and later expressed the view that both Berry Family Law and the husband did not “deserve” the benefit of the order. The reason for that assertion was that the wife considered Order 2 of the final property orders to be “fraudulently obtained” and asserted that Berry Family Law were the “mastermind” of the alleged (by her) “fraudulent activity”.
Upon the hearing of the stay application, the wife surprisingly (given her refusal to resolve the matter on the terms as put by the husband earlier), did not have an opposing view to that of the husband concerning the accrual of interest to the husband on any outstanding payment or part thereof as owed to him pursuant to Order 2 of the final orders. The wife described it as ‘fair’ that Order 5 (j)(iii) remain not stayed in its operation, and later as ‘okay’ that interest should accrue from the date the orders were made, subject to her caveat that such accrued interest should be paid after the sale of the former matrimonial home. Thereafter, the wife agreed to a stay of Order 5(j)(iii) of the final property orders. The wife however subsequently reneged on that agreement, claiming that she “didn’t agree” to Order 5(j)(iii) not being stayed. Thereafter, she stated, “Sorry, Your Honour. I have got a change of mind. I don’t want to agree to 5(j)(iii)”. She submitted that the order should be stayed in its operation, without any further elaboration as to why she had changed course.
The wife did not respond to the 1 October 2024 letter and proposed consent orders from the husband’s solicitors. On 8 October 2024, the husband’s solicitors emailed the wife, seeking a response from the wife as to their earlier communication to her. The wife responded by email, alleging that “the money”, being an amount of $169,910 which the wife was to pay to the husband pursuant to Order 2 of the final property orders, was fraudulently obtained by the husband and his solicitors and that it was “unjustifiable” for her to pay interest on the amount.[1] The wife rejected the husband’s offer of 1 October 2024.
[1] Husband’s affidavit filed 17 October 2024, Annexure MD-2.
On 18 October 2024, the wife filed a second Application in a Proceeding seeking that “Justice Hartnett recuse [herself] from determining the application for [a] stay order in the in the [sic] background of Actual Bias [sic] and relevent [sic] court documents getting destroyed”.[2]
[2] Wife’s Application in a Proceeding filed 18 October 2024.
On 21 October 2024, the wife pressed her application for my recusal, and her applications seeking a stay of the totality of the final property orders, and for leave to be granted for her to inspect the subpoena to Berry Family Law filed 29 November 2023. The wife’s application for my recusal was refused. The husband consented to a stay of the final property orders, save for Orders 3, 4 and 5(j)(iii), and further consented to the wife inspecting the subpoena to Berry Family Law filed 29 November 2023, simply to avoid further argument with the wife. It was the view of the husband’s lawyers however, that the material was inconsequential and not relevant. The wife persisted with her unfounded costs application. The husband sought costs on an indemnity basis or in accordance with scale.
LEGAL PRINCIPLES
Actual Bias
The test for establishing the existence of actual bias is that the judge must be shown to have prejudged the case or to have acted with such partisanship or hostility as to show that he or she had a mind made up against the applicant which was not open to persuasion.[3]
[3] Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at [134].
Apprehended Bias
The test for determining whether a judge should disqualify himself or herself on the ground of apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.[4]
[4] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8], Gleeson CJ, McHugh, Gummow and Hayne JJ explained the operation of the principle as follows:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection of the possibility of departure from the impartial decision making, is articulated.
The question is to be answered having regard to the legal, statutory and factual contexts in which the decision is made.[5] The hypothetical observer is taken to know the nature of the decision, the context in which it was made, and the circumstances leading to it.[6]
[5] Isbester v Knox City Council (2015) 255 CLR 135 at [20].
[6] Isbester v Knox City Council (2015) 255 CLR 135 at [23].
A finding of apprehended bias is not to be reached lightly. To the contrary it must be “firmly established”.[7] There must be “strong grounds for inferring the existence of a reasonable suspicion”.[8]
[7] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, 364 and 371.
[8] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 359-360.
The relevant reasonable apprehension is not that of, and is not determined by, the subjective perceptions of any party to the proceedings, although the impression that might reasonably be made on the parties by the facts is not completely ignored.[9] It is an objective test. One of possibility, not probability.[10]
[9] Johnson v Johnson (2000) 201 CLR 488 at [52] per Kirby J; Nagel v Clay (2020) 60 Fam LR 550 at [137].
[10] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
In Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232], the New South Wales Court of Appeal said, “that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally”.
In Johnsonv Johnson (2000) 201 CLR 488, the plurality of the High Court said at [13]:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced, and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Footnotes omitted)
Consideration
The wife failed to establish actual bias and failed to establish the more frequently invoked and hence considered by me (in circumstances where the wife is a litigant in person) claim of apprehended bias. Her material was not directed to the tests as set out above. There was much that was irrelevant, a significant part of it going to the wife’s complaint about the judgment, and otherwise her complaints about the administrative functions of the Court, and her scandalous assertions, against various legal practitioners.
The wife canvassed her submissions as to actual bias in the first of her two affidavits filed 18 October 2024. It was filed at 10.01am.
The wife’s first submission related to a sale of real estate contract into which the wife purportedly entered with her sister in 2018. The wife claimed a finding made by me to be a “lie”. The wife referred to material in evidence at the trial, and claimed that I found, in [102] of the reasons for judgment, that such evidence was not before the Court. What in fact that paragraph states is that “No evidence was before the Court from [Ms S] to support that which the wife asserted, or even to clarify what transactions had precisely occurred and why”.[11]
[11] Dekker & Rapallino [2024] FedCFamC1F 462 at [102].
The wife’s second submission related to a complaint that the “reason[s] for Judgment [sic] [dated 11 July 2024] …were sent to multiple people in Berry Family Law and not [only] to the address of service filed”.[12]The wife asserted the address for service was …@... and the Court accepts that assertion. I observe that the email and attachment about which the wife complains was sent to all parties to the litigation being the litigant in person wife, and the husband’s solicitors. Additionally, it was sent to the husband’s counsel at trial. As was submitted by counsel for the husband, the email addresses to which any reasons for judgment are sent is an administrative matter. The providing of a copy of the reasons for judgment after publication was not an act carried out by me and occurred post the trial and final determination of the matter. There was no possibility of departure from impartial decision making in the administrative act of sending out a copy of a concluded judgment.
[12] Wife’s affidavit filed 18 October 2024, paragraph 3.
The wife’s third submission related to a complaint that upon her request of 30 September 2024, to inspect material produced 29 November 2023, under subpoena to Berry Family Law (the husband’s lawyers) the Commonwealth Courts Portal recorded that the requested material had been ‘destroyed’. Subsequently, and from 8 October 2024, on the wife’s assertion, the Commonwealth Courts Portal indicated that the material in question was “stored by the Court”.[13] At the hearing, the wife made a bald assertion that the subpoenaed material from Berry Family Law was being intentionally hidden by the Court to cover up a fraud. Counsel for the husband submitted, a submission with which I agree, that this was an administrative matter which had no bearing on me and therefore could not reflect any alleged actual or apprehended bias. The wife provided no evidence that I had done or said, or acted, or omitted to do or say, or act, in any way such that on the tests described above, bias could be alleged in respect of the holding of subpoenaed documents by the Court.
[13] Wife’s affidavit filed 18 October 2024, paragraph 5.
The wife’s fourth submission was that I did not consider relevant evidence as contained in her affidavit material in the substantive proceeding. What the wife considered to be relevant evidence, and what I determined to be relevant evidence, may have differed. Whether that evidence to which the wife refers was in fact not considered by me and would have made a difference to the outcome of the proceeding, is a matter for consideration by the Full Court in determining the appeal. They are not complaints, without more, that go to assertions of bias.
The wife’s application was entirely devoid of relevancy and merit. Her application for recusal was refused.
STAY APPLICATION
The principles relevant to the stay application made are those set out by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]:
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. 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.
(Citations omitted)
Curial intervention by the grant of a stay should not take place lightly as Bryson JA held in Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 at [18] as follows:
18. …The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy or otherwise so adversely severe in its impact that intervention by the Court of Appeal should take place notwithstanding that there has not yet been an opportunity for full consideration.
Consideration
The wife sought a stay of the final property orders in circumstances where she described it as “essential due to the greed and vexatious nature of respondent (sic) and their lawyer’s (sic)”.[14] She had refused to pay the husband $169,910 pursuant to Order 2 or, in the alternative, sell the former matrimonial home pursuant to Order 5 because she felt aggrieved by the orders. During the currency of her appeal, she now does not wish to pay the husband any interest on the cash payment due to him pursuant to Order 2, regardless of the outcome of the appeal. It was her evidence that the husband did not “deserve” the accrual of interest. I consider that the husband is entitled to the benefit of the judgment. Otherwise, if the appeal were successful and the matter remitted, the wife would not pay the interest provided for in the final property orders.
[14] Wife’s affidavit filed 18 October 2024, paragraph 11.
The husband conceded that the granting of a stay in respect of some of the final property orders was a satisfactory arrangement given the proximity of the hearing of the wife’s appeal by the Full Court. The husband’s primary position was that a stay was not necessary. He pointed to the impossibility of a sale of the former matrimonial home as held jointly by the parties before the appeal hearing. That impossibility dissipated the risk of the wife’s appeal being rendered nugatory.
I have determined that the stay application was necessary to arrive at the orders made by the Court, but that the wife was imprudent in not accepting the husband’s offer of settlement, dealing as it did with the main issue in dispute being the husband’s capacity to force a sale of the former matrimonial home in the context of the wife having not made the payment due to him pursuant to the final property orders. Otherwise, the wife was incapable of agreeing to those orders which ought not be stayed. Her ongoing occupation of the former matrimonial home required, in the interests of justice and equity, that Order 3 continue to operate. The restraint on the parties further encumbering the former matrimonial home prior to the appeal determination was also necessary to preserve the parties’ assets.
The wife was unsuccessful in her pursuit of a stay of the totality of the final property orders.
COSTS
The wife was granted leave to make an oral application as to costs. She sought indemnity costs notwithstanding that she did not have legal representation and conceded it as correct that she had incurred no legal costs. Rather, she described a personal time cost to have been incurred by her and her sister. The wife confirmed that her sister was not a lawyer and nor was she present at the hearing.
The wife’s application for indemnity costs is dismissed. Her earlier application for her costs to be reserved is dismissed. The wife had no legal costs in respect of her applications before the Court and otherwise claimed no costs that might be the subject of a costs order. Her claim was frivolous.
The husband sought indemnity costs in his Response to an Application in a Proceeding filed 17 October 2024 and, alternatively, party/party costs.
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the general rule that each party shall bear their own costs.
However, the Court, being satisfied that there are circumstances justifying it in doing so, has power pursuant to s 117(2) of the Act to make such order for costs as it considers just in accordance with the Court’s discretion.
In considering what (if any) order for costs it should make, the Court shall have regard, relevantly, to the matters in s 117(2A) of the Act which are as follows:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Although the Court must have regard to all the matters in s 117(2A) of the Act, each matter’s particular relevance will depend upon the circumstances of the case. The matters are not to be read in a restrictive way and the discretion afforded to the Court is a broad one.[15]
[15] Penfold v Penfold (1980) FLC 90-800 at pp.75,053 – 75,054 (High Court), quoted in Mallet v Mallet (1984) FLC 91-507 at pp 79,123 – 79, 124 (by Wilson J).
No one factor in s 117(2A) is determinative, and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at [130], the Full Court observed:
41.… Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
Following a consideration of Colgate-Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801, the Full Court of the Family Court in Munday v Bowman (1997) FLC 92-784 assisted trial judges by extracting some examples of circumstances which would warrant the exercise of the discretion in s 117(2A) of the discretion towards an award for indemnity costs and including:
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such circumstances the action must be presumed to have been commenced and continued for some ulterior motive or because of some wilful disregard of the known facts.
(b) Making allegations of fraud, knowing them to be false, and making of irrelevant allegations of fraud.
(c) Evidence of misconduct causing loss of time to the court and to other parties.
(d) The making of allegations which ought never have been made or undue prolongation of a case by groundless contentions.
(e) An imprudent refusal of an offer to compromise.[16]
[16] Munday v Bowman (1997) FLC 92-784.
Consideration
At trial the wife had an income including fringe benefits of approximately $94,442. The husband was in receipt of Centrelink benefits.
Neither party was in receipt of Legal Aid. The husband owes his lawyers more than $150,000. The wife borders on being a vexatious litigant at great cost to the husband.
The wife filed multiple affidavits on which she sought to rely, being:
·An affidavit filed on 16 September 2024, 306 pages in length; and
·Two affidavits filed on 18 October 2024, 23 and 31 pages in length respectively, noting that 18 October 2024 was the Friday immediately preceding the hearing, which was listed on Monday, 21 October 2024.
The wife’s affidavits were voluminous and their content largely baseless and irrelevant to the wife’s applications. Nevertheless, the husband’s solicitors had to comb through such material, causing further legal costs to be incurred by the husband, including unfounded allegations of fraud against the husband’s solicitors. Literally bare assertions, scandalous in nature.
On 1 October 2024, the husband caused his solicitors to send the wife a proposed minute of consent orders in response to her application filed 16 September 2024. That proposed minute indicated that there would be an effective stay of the orders relating to the sale of the former matrimonial home, save that the order providing for interest accrual would remain operative. It was a reasonable offer to settle the matter. Otherwise, I refer to the matters in [33] and [34] above.
These circumstances warrant in the exercise of my discretion a costs order against the wife. I have determined that should be on a party/party costs basis when reflecting on the wife’s financial circumstances and other matters. The wife is fortunate that an order for indemnity costs against her is not made on this occasion, but should she continue to make unfounded allegations against the husband’s solicitors she is on notice that an indemnity costs order may be made against her in the future.
I certify that the preceding forty-eight eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 1 November 2024
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