DSC v JBC

[2004] HCATrans 322

[2004] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 2004

B e t w e e n -

DSC

Applicant

and

JBC

Respondent

Application for stay of proceedings

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 24 AUGUST 2004, AT 11.13 AM

Copyright in the High Court of Australia

MR R.V. BOWLER:   If it please your Honour, I am appearing as a direct brief for the applicant.  (instructed by the applicant)

MR G.K.W. PAGE, SC:   If it please your Honour, I appear for the respondent.  (instructed by Neumann & Turnour)

HIS HONOUR:   Yes, Mr Bowler.

MR BOWLER:   Your Honour, my client had an order made in respect of him in the Federal Magistrates Court ‑ ‑ ‑

HIS HONOUR:   Mr Bowler, I just want to understand.  Your application is for a stay of the order for the sale of the former family home, is that right?

MR BOWLER:   Yes, your Honour.

HIS HONOUR:   That is the only relief you seek from me today?

MR BOWLER:   Yes, your Honour.  I think I can get there very, very quickly, if there is nothing in it.  I accept that, your Honour.  My client as a result of the order of Federal Magistrate Rimmer had an opportunity to buy that house, on certain terms, one of which was the payment of, in round figures, $250,000, plus an interest component.  Both parties appealed in one form or another that decision and the 30 days passed.

HIS HONOUR:   This was 30 days fixed by the federal magistrate, was it?

MR BOWLER:   Yes, your Honour.

HIS HONOUR:   Was that the date within which your client had to organise the purchase, is that right?

MR BOWLER:   Yes, your Honour.  In fact, I think it is more accurate to say – and I should have said this earlier – there are two ways of buying that house:  the private sale, which is the way we have just discussed, and there was a time limit of 30 days on that, and then the public sale.  If I am unsuccessful today, there would seem to me to be no argument I could raise for there to be a further impediment of proceeding with the public sale.  Now, it is conceded by me that my client could buy that house through the public ‑ ‑ ‑

HIS HONOUR:   At auction, like any other bidder.

MR BOWLER:   At auction listed at real estate agent.  What I need to establish is that the former of those two options is the – that my client should still be entitled to enjoy that option.

HIS HONOUR:   To buy by private treaty ‑ ‑ ‑

MR BOWLER:   Yes.

HIS HONOUR:   ‑ ‑ ‑ either from an agent or perhaps directly from Mr Page’s client.

MR BOWLER:   Yes, your Honour.  So if we do not get the first limb, then it is open to us to buy from the second limb, but somebody else might come along and buy it out from under us.  I do not have any evidence I can point to that we have made attempts to buy that house.

HIS HONOUR:   Mr Bowler, what is the value of the house?

MR BOWLER:   The order at trial was $460,000.  There was an adjustment of the property issues between the parties and the end result was, as I put it in round figures, $250,000 ‑ ‑ ‑

HIS HONOUR:   Was it 42½ and 57½, or something like that?

MR BOWLER:   Yes, your Honour.  To get right to the argument, my client wants to raise the substantive issue in the High Court, that is, the leave point, that the predisposition of the courts below has been to put in a special category shared parenting.  My client wants to argue that the prima facie position of any court embarking upon this question should be parents are together when they have the children.  The aim is to be together for the life of the children.  The best way for a child to be brought up is in a loving environment with a family.  If shared parenting can continue, that should be the aim of the court, which is a complete change from what has gone beforehand, and he says that is the point of importance.

If he is successful in shared parenting, it may be the case that the Court takes a view that he is entitled to a better disposition or a better split of the matrimonial property, so the $250,000 figure might be reduced.  Now, I hope I have done that clearly because ‑ ‑ ‑

HIS HONOUR:   No, I understand what you are putting.

MR BOWLER:   That is essentially it.

HIS HONOUR:   But assuming you were correct about that and assume all of that, his position could be protected by some sort of an order for retention of some of the proceeds by the respondent, or why should we assume, in any event, that the respondent would squander the money?

MR BOWLER:   Your Honour, I come to this Court conceding that if I am right on the law, then I have an argument that the Court might entertain.  That is not my biggest problem.  My biggest problem is the test or the contest between ‑ ‑ ‑

HIS HONOUR:   You really have to win on your parenting point to make valid any proposition that there should be some disturbance of the apportionment that has been made by the federal magistrate and affirmed, I think, by Justice Warnick, is that correct?

MR BOWLER:   Yes, your Honour.

HIS HONOUR:   Mr Bowler, tell me this.  Years and years ago I was in a case called Mallet that came to this Court and the Court there I thought – it was many years ago – said that this notion of any predisposition with respect to a division was, in effect, wrong.  I think the Family Court had been saying up until then that 50:50 was the starting point.  Has there been legislative change since then?

MR BOWLER:   Not as far as I am aware, your Honour, and I have not read the case to which your Honour has referred.

HIS HONOUR:   Is there any stated predisposition in this jurisdiction now?

MR BOWLER:   Not as far as I am aware, your Honour, and I also concede that my case is thin when one goes to the next stage, in any event, which is the best interests of the children.

HIS HONOUR:   It is going to be very, very difficult for you to win, Mr Bowler, in relation to parenting orders made by a federal magistrate and their discretionary component, affirmed by a single justice even sitting as the Full Family Court.

MR BOWLER:   Once again I accept that.  I am saying in terms of today, in my submission, that is the only argument that is alive in this case.  If you start at that predisposition, you then need to have evidence that allows the best interests of the children to maintain that predisposition.

HIS HONOUR:   These children are starting to grow up though.  What, the youngest is now nine?

MR BOWLER:   At trial nine, 12 and 14.

HIS HONOUR:   So the children will, in effect, fairly soon determine their own preference, will they not?

MR BOWLER:   Yes, your Honour.  In fact, my reading of both judgments, at trial and in the appellate court, was that whilst those words were not used, that is effectively what was being said about the 14 year old.
I say again, even if one puts aside those difficulties and even if you are prepared to accept that we might have an argument at leave, so that I can address you on the point, in terms of the balance between selling the subject property or retaining the subject property, that is really the biggest question for today.

HIS HONOUR:   Mr Bowler, what is the legal point that you would seek to make in any appeal to the High Court?

MR BOWLER:   That the magistrates, in looking at a case with the evidence such as this, proceeded on the predisposition that shared parenting cannot be achieved unless special criteria are met.

HIS HONOUR:   Where do I find that in the judgment?

MR BOWLER:   In my client’s summary of argument for the special leave at point 12 on page 2, annexure A to Form 62.

HIS HONOUR:   But where do I find it in the judgment, in the magistrate’s reasons for judgment?

MR BOWLER:   I think the easiest is the judgment of Justice Warnick, page 21, paragraph 108 and paragraph 109.  There are a lot of other discussions in the case about – I think I have got this right – subsidiary matters, but that is the nub of it in my submission, your Honour, that if you read that outline proposition that I have just pointed to, once it is accepted that the learned magistrate was entitled to accept those opinions and conclusions, there is a basis for most of the challenged conclusions of the learned magistrate herself.

HIS HONOUR:   But that does not really answer my question, Mr Bowler.  Where do I find that the magistrate stated his views with respect to shared parenting?  I appreciate that you are saying that Justice Warnick was not prepared to interfere with the conclusions, but where do I find a proposition of the kind that you say the magistrate stated?

MR BOWLER:   I apologise, your Honour.  I moved from the passage I just read to you, not ‑ ‑ ‑

HIS HONOUR:   Do not worry, Mr Bowler, we will get there.  Is it paragraph 59 in the magistrate’s decision?  Now, I draw your attention to that because the magistrate there seems to be stating something really almost the opposite of what you are putting to me.  The magistrate seems to be entertaining the idea of shared parenting, particularly as I assume it was put to her at the hearing.

MR BOWLER:   Your Honour, perhaps that is something I did not articulate clearly earlier.  I am saying the only thing we can argue is that paragraph 59, being an application of the law to the facts - and there is a difficulty with my case with respect to that - if that is read in conjunction with the two paragraphs I have pointed out in the judgment of Mr Justice Warnick, then there is a predisposition away from shared parenting where we are saying, if possible, it should be achieved, but I cannot ‑ ‑ ‑

HIS HONOUR:   Well, the magistrate seems to have applied her mind to that possibility, and in paragraph 36 she says the children:

are used to their mother being their primary carer.  They are primarily attached to her.  That is the arrangement that these parties set up during the marriage and it has continued after separation, unchallenged by the father, until now.

That paragraph and paragraph 59 seem to present very high barriers for you to overcome, I would have thought.

MR BOWLER:   I cannot argue against that, your Honour.

HIS HONOUR:   Do you have anything more you want to put to me?

MR BOWLER:   No, your Honour.  Do you want me to clarify the part about the contest between the selling of the house and obtaining of the house?

HIS HONOUR:   Yes, you do that.

MR BOWLER:   If my client is successful on the point we have just covered, he then has an opportunity possibly to convince the Court to realign the property settlement.

HIS HONOUR:   To alter the apportionment.

MR BOWLER:   I am sorry, your Honour, yes, to alter the apportionment.  That might mean that he owes the wife less than $250,000 as was in the order.  That is essentially it.  If the house is sold, he does not get to buy the

house to which he has some attachment.  If it is maintained, he can do that.  What we also would have to show that in no money being paid to the wife that her loss is not greater than the loss to my client, and I concede that is a matter for your Honour.  I do not have anything more, your Honour.

HIS HONOUR:   All right, thank you.  Mr Page, what happened in Mallet v Mallet?

MR PAGE:   It still is very good law, your Honour, and there has been no legislative changes that have affected ‑ ‑ ‑

HIS HONOUR:   One would not think that from reading these judgments.

MR PAGE:   No, and that case did commence on the basis that the court was applying as a primary premise an equal division and that was dispelled and has remained dispelled and our system operates extremely well.

HIS HONOUR:   Is Mallet actually applied?

MR PAGE:   Yes, it is.

HIS HONOUR:   And is it applied here?

MR PAGE:   Well, indirectly, yes.  It has become such an axiom of our work there, your Honour, now that it does not need to be referred to by name.  It is simply the basis on which we go to the court.

HIS HONOUR:   Mr Page, on the matters pressed before me, really, Mr Bowler’s client would have to disturb a discretionary order.  There does not seem to be any definition of any clear legal point that he could argue in the High Court in an appeal.

MR PAGE:   That would be my submission.  Indeed, some of the matters that he does raise were not raised before Justice Warnick, and he has that hurdle to get over also.  My client seeks to have the fruits of her judgment.  If that necessitates the sale of the house, be that as it may.  What is sought by this stay is that there be a total stay of the order.  There is no suggestion that there be a partial stay of the order, even though the draft notice of appeal attached to the application for special leave seeks that a lesser sum be paid.  It still is a sum of some $112,000 and no suggestion is made that there be a stay to that extent even, but that would be opposed in any case.

HIS HONOUR:   Justice Warnick affirmed all of the orders of the magistrate, is that right?

MR PAGE:   Indeed, yes.

HIS HONOUR:   Yes, I do not need to hear you any more.  Is there anything you want to say, Mr Bowler?

MR BOWLER:   No, your Honour.

HIS HONOUR:   This is an application for an order to stay the implementation of an order initially made by a federal magistrate for the sale of a property in which the parties had resided, the proceeds of which are to be divided in accordance with an apportionment fixed by the federal magistrate.  At the same time the federal magistrate entertained applications with respect to the children of the marriage, their parenting and contact with them.  All or most of the orders of the magistrate were one way or another the subject of appeal or cross‑appeal to the Full Family Court.  Justice Warnick sitting as the Full Family Court on appeal from orders of a federal magistrate effectively affirmed all of the orders that had been made by the federal magistrate.

The applicant before me has filed an application in this Court for special leave to appeal.  So far as is relevant today, his appeal seeks changes of the orders with respect to the parenting of the children.  It is his contention that if change to orders of the kind which he seeks were to be made, then it would be appropriate and just that there be alteration also in the apportionment which has been made of the property by the federal magistrate.  In substance then his application for a stay really depends upon, and it seems to be accepted that there would need to be, an order changing the arrangements for the parenting of the children before any order for a change in the apportionment would be justified.

The difficulty for the applicant is that he has been unable to point to any errors of law in the judgment of the federal magistrate or, indeed, in the judgment of Justice Warnick, which affirmed the federal magistrate’s decisions.  It has been suggested by the applicant that the magistrate may have erred by, in effect, not starting with a predisposition that shared parenting was appropriate.  It does not seem to me at this stage – and I say this tentatively because the application for special leave has not been heard – that this is so.  In paragraphs 36 and 59 of the federal magistrate’s decision – and these are only examples – the magistrate appears to have applied herself very much to the possibility of some form of shared parenting but, having regard to the matters which she discusses there, and in other parts of the judgment, holds it to be inappropriate in this case.

The decision of the federal magistrate contains a discretionary component.  The prospects of success of an application for special leave, with all of the expense that prosecution of that would involve, do not appear at this stage to me to be very good.  Having regard to that matter and also to other matters to which I will refer shortly, I am unable to grant this application.

The other relevant matters are essentially these, that the respondent is entitled to the fruits of her judgment, she has been denied them for some considerable time and ought not to be denied them any longer.  Secondly, even if the applicant should ultimately obtain special leave and succeed in his appeal and if, in consequence, an alteration in the apportionment were to be made, there is no reason to suppose that the respondent would squander the proceeds of the sale of any assets, and that they would not then be accessible.

I cannot leave this matter without observing that if my assessment of the prospects of success of an application for special leave is an accurate one, then thought ought to be given to the cost and expense of any further proceedings in a case of this kind between former husband and wife with children, and who do not have between them a very large sum of money with which to trifle.  I dismiss the application.

MR PAGE:   I would ask for an order for costs, your Honour.

HIS HONOUR:   Is there anything you can say about that, Mr Bowler?

MR BOWLER:   No, your Honour.

HIS HONOUR:   The application is dismissed with costs.

AT 11.42 AM THE MATTER WAS CONCLUDED