Elliott & Hopkins (No 2)
[2023] FedCFamC1A 142
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Elliott & Hopkins (No 2) [2023] FedCFamC1A 142
Appeal from: Hopkins & Elliott [2023] FedCFamC1F 167 Appeal number: NAA 83 of 2023 File number: SYC 5636 of 2021 Judgment of: MCCLELLAND DCJ, GILL & WILLIAMS JJ Date of judgment: 23 August 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the applicant wife sought leave to appeal against property orders requiring her to vacate the respondent’s property – Family violence injunctions – The attribution of weight given to the possibility of homelessness – Where the applicant advanced no proper legal reason for her sole use and exclusive occupation of the respondent’s property – Decision of the primary judge not plainly wrong – No error of fact or law established – Adequate reasons – Application for leave to appeal dismissed – Applicant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79, 114(1)(f), 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pts 10.01, 10.3, 10.4, 10.5, 10.6
Federal Court andFederal Circuit and Family Court Regulations 2022 reg 4.02
Cases cited: Bhatt & Acharya (Costs) [2017] FamCAFC 71
Bonnett & Bonnett [2021] FedCFamC1A 95
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Dickson v Commonwealth Director of Public Prosecutions; Dickson v Commonwealth of Australia [2023] NSWCA 175
Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15
Fedele and Fedele (1986) FLC 91-774; [1986] FamCA 14
Gong & Wei (2017) 59 Fam LR 1; [2017] FamCAFC 55
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4
Naylen & Naylen [2021] FamCA 392
Sarto & Sarto (2022) FedCFamC1A 16
Sieling and Sieling (1979) FLC 90-627; [1979] FamCA 23
Willmore & Menendez [2022] FedCFamC1A 73
Number of paragraphs: 90 Date of hearing: 31 July 2023 Place: Sydney Counsel for the Applicant: Mr Cohen Solicitor for the Applicant: Eddy Neumann Lawyers Counsel for the Respondent: Ms Rusiti Solicitor for the Respondent: Parker Law ORDERS
NAA 83 of 2023
SYC 5636 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ELLIOTT
Applicant
AND: MR HOPKINS
Respondent
order made by:
MCCLELLAND DCJ, GILL & WILLIAMS J
DATE OF ORDER:
23 AUGUST 2023
THE COURT ORDERS THAT:
1.The Applications in an Appeal filed 14 June 2023 and 12 July 2023 are dismissed.
2.The application for leave to appeal as contained in the Further Amended Notice of Appeal filed 1 June 2023 is dismissed.
3.The applicant pay the respondent’s costs of the application for leave to appeal, fixed at $19,173.90, at the conclusion of the property proceedings between the parties.
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 Elliott & Hopkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, GILL & WILLIAMS JJ:
By a Further Amended Notice of Appeal filed 1 June 2023, the applicant seeks leave to appeal from Orders 2, 4(b) and 4(d) made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 17 March 2023 (“the March orders”). The March orders provide for the applicant to vacate a property in Suburb C (“the Suburb C property”) within one month of the orders and dismiss her applications for interim relief, as sought in the Responses to an Application in a Proceeding filed on 10 November 2022 and 8 December 2022.
The applicant contended in her Summary of Argument filed 31 July 2023 that the reasons of the primary judge were infected by legal, factual and discretionary errors.
The respondent resisted the application for leave to appeal.
For the reasons that follow, leave to appeal will not be granted and the application will be dismissed.
BACKGROUND
Cohabitation between the parties commenced in 2014 according to the applicant or 2015 according to the respondent. The parties married in 2016 and separated in early 2021. The relationship was approximately seven years in duration.
On 5 August 2021, the respondent filed an Initiating Application in Division 2 of this Court, seeking interim and final orders for injunctive and financial relief. At proposed order 2 of the interim orders sought in the Initiating Application, the respondent sought an order that the applicant “forthwith vacate the former matrimonial home at [the Suburb C property] and shall not thereafter enter upon or loiter near or in the vicinity of the matrimonial home”. He also sought orders for the applicant to remove her personal goods and chattels from the Suburb C property.
On 10 November 2022, fifteen months after the commencement of the proceedings, the applicant filed a Response to an Initiating Application. At proposed order 13 of Annexure B to her Response, the applicant sought an interim order for “sole occupation of the Suburb C property to the exclusion of the [respondent]”.
The respondent is the sole owner of the Suburb C property, where the parties lived during cohabitation and where the applicant resided at the time of the hearing in March 2023. The respondent’s assets and business interests secure significant debts owed to his bank and the Australian Taxation Office (“ATO”).
The applicant has no assets of any significant value but has significant debt.
On 31 January 2023, interlocutory orders were made by a registrar pertaining to multiple issues in dispute between the parties, including purportedly “withdrawing” both parties’ applications for occupation of the Suburb C property (Orders 14 and 15).
On 10 February 2023, the applicant filed an Application for Review seeking a review of the registrar’s orders of 31 January 2023, which is referred to at [3] of the primary judge’s reasons. The review application entailed a hearing de novo of the interlocutory applications, which occurred before the primary judge on 17 March 2023. Immediately following the hearing, the primary judge made orders and delivered ex tempore reasons.
On 5 April 2023, the applicant filed a Notice of Appeal against the March orders. The appeal was subsequently listed by the appeal registrar for consideration as to whether or not the appeal should be summarily dismissed as being fundamentally misconceived.
On 17 April 2023, a judge other than the primary judge made orders striking out the grounds in the first Notice of Appeal and granting leave to the applicant to file an Amended Notice of Appeal.
The applicant subsequently filed an Amended Notice of Appeal on 28 April 2023. Thereafter, both parties filed interlocutory applications in the appeal, which were heard and determined by the appeal registrar.
On 1 June 2023, the applicant filed a Further Amended Notice of Appeal.
On 14 June 2023, the applicant filed an Application in an Appeal and on 12 July 2023 she filed a further Application in an Appeal.
On 31 July 2023, the applicant filed an Amended Summary of Argument.
LEAVE TO APPEAL
Section 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that leave is required to appeal a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single judge. A prescribed judgment is an interlocutory decree (other than a decree in relation to a child welfare matter) (Federal Court andFederal Circuit and Family Court Regulations 2022 reg 4.02).
The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692).
In Dickson v Commonwealth Director of Public Prosecutions; Dickson v Commonwealth of Australia [2023] NSWCA 175, the New South Wales Court of Appeal recently commented on what must be demonstrated in order to warrant the grant of leave to appeal. At [85], the Court of Appeal said:
It is important to bear in mind that in order to warrant the grant of leave to appeal something more must be demonstrated than that the decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable.
(Citations omitted)
Because the merits of any proposed appeal are relevant to the success of the appeal, we will address the proposed grounds of appeal before returning to the question of leave to appeal. We will also deal with the two Applications in an Appeal and the applicant’s Amended Summary of Argument.
APPLICATIONS IN AN APPEAL
In the Application in an Appeal filed 14 June 2023, the applicant sought to stay both the March orders and the respondent’s subsequent enforcement proceeding, which sought vacant possession of the Suburb C property. The applicant also sought leave to adduce fresh evidence about “the temers [sic] of the [Apprehended Domestic Violence Order (ADVO)] in force at all relevant times”.
In the Application in an Appeal filed 12 July 2023, the applicant sought leave to adduce into evidence her affidavits affirmed and filed on 15 October 2022 and 10 November 2023.
At the commencement of the appeal, the applicant did not press the stay application nor the Application in an Appeal filed 12 July 2023.
The respondent initially opposed the application for leave to adduce evidence about the terms of the ADVO, but then submitted that if the applicant were permitted to adduce evidence of the ADVO as at 17 March 2023, the terms of the ADVO in force as at 31 July 2023 should also be adduced, as both dates are “relevant times”. Orders were made accepting into evidence the ADVOs dated 10 February 2023 and 19 July 2023.
On 31 July 2023, the applicant filed an Amended Summary of Argument, which included a proposed amendment to the grounds of appeal and an application to stay Orders 2 and 4(b) of the March orders “pending outcome of the appeal”. Counsel for the applicant conceded it would be procedurally unfair to the respondent to permit the grounds of appeal to be amended on the morning of the hearing and did not press the proposed amendment. Neither did he press the application to stay the relevant orders, as the applicant no longer occupied the Suburb C property. Leave was granted to the applicant to otherwise rely on the Amended Summary of Argument.
THE APPEAL
We now turn to the grounds of appeal referred to in the Further Amended Notice of Appeal.
Ground 3 – His Honour erred in making the order that the applicant vacate the property and improvements known as [the Suburb C property] within one month.
The applicant did not address this ground in her Summary of Argument nor in oral submissions and it will therefore be dismissed.
Ground 6 – His Honour erred in applying the wrong legal test in determining whether or not the applicant should be given exclusive possession of the property.
Contrary to paragraph 5 of the applicant’s Amended Summary of Argument, an order for sole use and occupation is not an “interest in property in which the court has jurisdiction under s 79 [of the] Family Law Act 1975 (Cth)”.
In Mullane v Mullane (1983) 158 CLR 436 at 445, the High Court of Australia made it clear that orders for exclusive occupation of a former matrimonial home do not alter legal and equitable interests of spouses in property, but modify personal rights of parties and therefore such orders do not come within the scope of s 79.
The applicant subsequently correctly conceded the court’s power to make an order for exclusive occupation of a property is contained in s 114(1)(f) of the Family Law Act 1975 (Cth) (“the Act”), which provides that:
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…
(f) an injunction relating to the use or occupancy of the marital home.
Despite the challenge to the correctness of the legal test applied by the primary judge, there were no submissions about legal principles relevant to the granting of an injunction or the proper exercise of discretion under s 114(1)(f) of the Act.
We refer to those principles in the subsequent paragraphs.
In Sieling and Sieling (1979) FLC 90-627 (“Sieling”) at 78,264, the Full Court of the Family Court said as to the use of the injunction power:
…The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
As to the principles to be applied in making an order for sole use and occupation of the former matrimonial home pursuant to s 114(1)(f) of the Act, we agree with and adopt the comments of McEvoy J in Naylen & Naylen [2021] FamCA 392 at [29]–[30] as follows:
29.The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the s 114(1) injunction power in Sieling v Sieling. These principles have been the subject of frequent exposition in the Full Court and application by primary judges. They may be summarised as follows:
(a)the Court may make such an order as it thinks proper: Davis & Davis (1976) FLC 90-062, 75,309 (Evatt CJ, Pawley and Ellis JJ);
(b)there are no words of limitation in s 114(1) other than the requirement that the grant of an injunction must be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it: S & S [2002] FamCA 59, [40] (Kay, Holden and Monteith JJ);
(c)an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances: S & S, [38];
(d)it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order: S & S, [41];
(e)the Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together: Rowe & Rowe (1980) FLC 90-895, 75,639-75,640 (Evatt CJ), 75,644 (Pawley SJ), (cf Wood SJ at 75,643); Davis & Davis (1983) FLC 91-319, 78,170 (Baker J, with whom Evatt CJ and Underhill J agreed);
(f)the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order: Davis & Davis (1976), 75,309; Rowe & Rowe, 75,640 (Evatt CJ), 75,644 (Pawley SJ);
(g)the test for making an order for exclusive occupation is an objective one, Rowe & Rowe, 75,644 (Pawley SJ);
(h)the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen: Walker v Walker (1978) 1 WLR 533, 536-537, cited with approval in Rowe & Rowe, 75,638-75,639 (Evatt CJ), 75,642 (Wood SJ) (albeit that his Honour appears to have referred mistakenly to Phillips v Phillips (1973) 1 WLR 615, in circumstances where it may be inferred that, like Evatt CJ, he meant to refer to Geoffrey Lane LJ in Walker v Walker);
(i)the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together: Bassett & Bassett [1975] Fam. Law 76, 87, cited with approval in Rowe & Rowe, 75,639 (Evatt CJ), 75,642 (Wood SJ);
(j)while the decision ought not be made merely on the balance of convenience: Davis & Davis (1976), 75,309, in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home: Dean & Dean (1977) FLC 90-213, 76,097 (Wood J), referring to Davis & Davis (1976);
(k)it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened: Dean & Dean, 76,098.
30.In Fedele & Fedele (1986) FLC 91-744, 75,431, the Full Court (Fogarty, Murray and Nygh JJ) emphasised that these principles should properly be treated as guidelines to assist in the exercise of the important discretion given under s 114(1), and that they should not be seen as laying down any fixed list of criteria which must be established for the application to be successful. A judge must exercise his or her own discretion in the matter, informed by the Court’s previous consideration of the issues.
The question is what, in all of the circumstances of the case, is fair, just and reasonable: Fedele and Fedele (1986) FLC 91-774 at 75,431 (“Fedele”).
The applicant’s first complaint under this ground is because the primary judge did not specifically refer to s 114 of the Act in his reasons, it should be inferred that his Honour failed to have proper regard to the section and failed to take it into account.
At [17], the primary judge said that the applicant had “advanced no proper legal reason” to be granted sole use and occupancy of the property which would require an injunction to trammel the respondent’s legal right to enjoy possession of his own property. The primary judge was well aware his task was to decide whether or not to grant an injunction for sole use and occupation as sought by the wife and, if granted, the injunction would displace the respondent’s legal right to enjoy possession of the property. It is of no consequence the primary judge did not specifically refer to the relevant section: Willmore & Menendez [2022] FedCFamC1A 73 at [93] citing Gong & Wei (2017) 59 Fam LR 1 at [44] and Donnell & Dovey (2010) FLC 93-428 at [103]. His Honour was clearly cognisant he was required to identify and subsequently evaluate whether there were circumstances arising out of the marital relationship which would warrant temporarily restraining the respondent from enjoyment of his property rights. We reject the applicant’s assertion the primary judge failed to apply the correct legal test, when his Honour in fact did.
The second complaint is the primary judge erred in the exercise of his discretion and failed to take into account all relevant factors, in particular that the applicant would be homeless if she was unsuccessful and that the primary judge proceeded on the basis that the respondent’s legal title to the property was determinative.
Whilst the primary judge did not specifically refer to all relevant considerations under the sub heading “Possession of the [Suburb C] property”, when the ex tempore reasons are read as a whole, it is apparent the primary judge identified, considered and weighed criteria relevant to his discretion (see Bonnett & Bonnett [2021] FedCFamC1A 95).
In this dispute, the relevant factors included the respondent’s legal title to the property (at [14], [17] and [19]), the means and needs of the parties including their income and financial capacity to service the mortgage encumbering the property (at [13], [27], [28] and [33]), the applicant’s apparent inability to retain the property after a final hearing (at [18]), the applicant’s claim she could be rendered homeless (at [17] and [36]), the existence of an ADVO protecting the applicant (at [20], [21] and [22]) and hardship to both parties.
As can be seen from the reasons, the primary judge did take into account the applicant’s contended homelessness (at [17]), although his Honour did not accept that would necessarily be so (at [36]).
As to the contention the primary judge proceeded on the basis the respondent’s legal ownership of the property was determinative, the primary judge correctly recognised the respondent’s legal title to the property prior to considering whether other relevant factors would justify an injunction displacing the respondent’s right to enjoyment of the property: see Sieling and Sarto & Sarto (2022) FedCFamC1A 16. The applicant did not identify where, in the reasons, the primary judge purportedly elevated the respondent’s legal title over other factors.
Ultimately, the primary judge concluded the applicant advanced no proper legal reason to persuade his Honour to exercise his discretion to accede to the applicant’s application for exclusive occupancy of the property. His Honour’s approach was entirely orthodox, proper and in accordance with authorities.
There is no merit in this ground.
Ground 7 – His Honour erred by finding that the applicant had demonstrated no reason why she should be allowed to remain in the property.
The applicant’s submission under this ground appears to be that homelessness may, in some circumstances, justify the court exercising its discretion to permit a party to remain in exclusive occupation of a property. No authority was cited to support the contention. We reject any suggestion that this factor is necessarily determinative of, or an elevated factor in determining, an exclusive occupancy application. It is but one of many relevant factors to be taken into account in an exercise of discretion.
Further, the contention as to homelessness was not established before the primary judge who, at [36], assessed that the applicant’s means meant that she could “likely subsist until the property settlement is resolved” even in the absence of a sole occupancy order.
There is no merit in this ground.
Ground 9 – His Honour erred by determining that the respondent was entitled to immediate possession and could “eject” the applicant when there was an ADVO in place preventing the respondent from taking such action.
The applicant complains the statement by the primary judge at [19] that “the [respondent was] entitled to immediate possession of the property” is an error of fact. She contends the ADVO for her personal protection prevented the respondent taking any physical action to remove her from the property, notwithstanding his legal title and right to possession of the property. Counsel for the applicant did not cite any authority to support that contention. At the hearing before the primary judge, the applicant did not seek to adduce into evidence a copy of the ADVO, nor did the applicant make that argument before the primary judge. The applicant is bound by the conduct of her matter in the court below. In Metwally v University of Wollongong (1985) 60 ALR 68 at 71 (“Metwally”), the High Court said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
The applicant has not established any such exceptional circumstances in this case.
The primary judge’s reasons from [20]–[23] demonstrate his Honour was well aware of the existence of the ADVO, the injunctions sought by both parties in their respective Initiating Application and Response, the applicant’s application for an injunction in terms of the stay order upon the expiration of the ADVO and that both parties sought an order for exclusive possession of the property. The existence of the ADVO (but not its precise terms) was a factor relevant to the exercise of his Honour’s discretion, as was the respondent’s ownership of the property and his legal right to possession of the property.
We do not accept the applicant’s assertion the ADVO made on 10 February 2023 prohibited the respondent’s agents from attending the Suburb C property. The terms of the ADVO prohibit the respondent alone from attending or being within 100 metres of the Suburb C property, not his agents. The ADVO is for the personal protection of the applicant and does not confer on the applicant any right to occupy the Suburb C property.
In any event, a warrant for possession of the property was issued on 29 June 2023 and the variation of the ADVO of 19 July 2023 removed the prohibition on the respondent going within 100 metres of the Suburb C property.
There is no merit in this ground.
Ground 11 – His Honour erred by adjusting the property rights of the parties not in accordance with the law.
This ground was not pressed by the applicant, nor was it addressed in her Summary of Argument. It will therefore be dismissed.
Ground 12 – His Honour erred by failing to follow the proper procedure with an unrepresented litigant.
This ground was not pressed by the applicant nor was it addressed in her Summary of Argument. It will therefore be dismissed.
Ground 14 – His Honour erred in the exercise of his discretion, when determining the respondent’s application to have exclusive possession of the matrimonial home by failing to take into account a relevant consideration being that:
a) in the proceedings that were before [the judicial registrar], the respondent indicated that the matter was withdrawn; and or
b) during the proceedings before His Honour on the 17th of March 2023, the respondent failed to take sufficient steps to disavow the position that the application for an order for vacant possession had been withdraw [sic].
The applicant’s complaint under this ground is twofold. First, the primary judge should not have proceeded to determine the review application in relation to the sole occupancy issue because of ambiguity of the use of the word “withdrawn” in Orders 14 and 15 of the registrar’s orders made 31 January 2023. Secondly the primary judge, whilst exercising his discretion to determine the sole use and occupation dispute, should have taken into consideration the fact that the respondent was prepared to withdraw his application for sole use of the property when the matter was before the registrar on 31 January 2023.
Dealing with the first complaint, at [2] and [3] of the reasons, the primary judge referred to issues dealt with by the registrar’s interlocutory orders made on 31 January 2023. At [2(d)] of the reasons, his Honour stated the meaning of the registrar’s orders purporting to “withdraw” the parties’ interlocutory applications was “quite opaque, because it is not styled as a dismissal order and the applications were not discontinued”.
Chapter 10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out how to finalise a proceeding. At no time did the respondent discontinue his Initiating Application, in accordance with Pt 10.1 of the Rules, nor were the applications of the parties dismissed or decided in accordance with Pts 10.3, 10.4, 10.5 or 10.6 of the Rules. There is no reference in the Rules to “withdrawing” an application to finalise a proceeding.
We reject any submission the orders of the registrar of 31 January 2023 precluded the primary judge from hearing or determining the applications before him, when they remained extant.
The applicant filed an Application for Review of all but Order 1 of the registrar’s 31 January 2023 orders, including Orders 14 and 15 which purported to withdraw the applications for sole use of the property.
The consequence of the applicant filing an Application for Review seeking a review of those orders was that the primary judge conducted the hearing on 17 March 2023 as a hearing de novo of all previous applications, including both parties’ applications for exclusive occupancy of the Suburb C property.
Examination of the transcript demonstrates at the commencement of the hearing, the primary judge explained to the applicant the consequences of the Application for Review and the applications then before the court. (Transcript 17 March 2023, p.3 lines 35–45; p.4 lines 1–9)
The primary judge made clear to the applicant at Transcript 17 March 2023, p.4 lines 1–2, that he intended to hear the applications sought by the respondent in his Initiating Application filed on 5 August 2021, which included the respondent’s application for exclusive occupation of the Suburb C property and his “amended Application in a Proceeding… filed a couple of weeks ago on 24 February 2023”.
The primary judge at Transcript 17 March 2023, p.16 lines 21–26, again told the applicant that the respondent’s “application is that [the applicant] be removed from the household so that [the respondent] can occupy it… so I have to make a decision about that now”. The applicant did not object to the primary judge determining the respondent’s application for exclusive occupancy on the basis the application had ostensibly been previously withdrawn by the respondent. The applicant could not be under any misapprehension about the orders sought by the respondent at the hearing before the primary judge and that his Honour would hear and determine the competing applications at the hearing.
Turning to the second complaint, there was no obligation on the respondent at the hearing before the primary judge to either withdraw his application for exclusive possession of the Suburb C property or alert the primary judge he had previously done so. The primary judge’s comments at [2] and [3] make it clear his Honour was aware of the earlier orders of the registrar.
Neither party sought to alert the primary judge to the prior “withdrawals” of their respective applications as being a relevant factor to be taken into account when exercising discretion. The applicant is bound by the conduct of her matter in the court below (see Metwally).
This ground must fail.
Ground 15 – His Honour failed to give sufficient weight to the fact the applicant wife would be homeless.
As to the complaint under this ground, the difficulty of challenging a primary judge’s attribution of weight on appeal is well known. As stated in Gronow & Gronow (1979) 144 CLR 513 at 520:
…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessment of matters of weight.
The weight or importance given to evidence is a matter quintessentially for the primary judge, unless an applicant can show the primary judge was plainly wrong (CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J).
The applicant did not demonstrate nor even attempt to address how the primary judge was “plainly wrong”.
This ground must fail.
Ground 16 – His Honour erred in the exercise of His Honour’s discretion by making a determination not reasonably available on the evidence.
The applicant contends in her Summary of Argument that the respondent’s claim he would suffer financial hardship was “unspecified to a large degree” and that the untested evidence of unspecified financial hardship could not prevail over the applicant’s assertion of homelessness, when determining the competing applications for exclusive possession of the property.
We do not accept the proposition that the respondent’s asserted financial hardship was unspecified, because as noted by the primary judge at [5], the respondent relied upon a Further Amended Financial Statement filed 24 February 2023, less than a month prior to the hearing de novo which sets out in detail the respondent’s financial circumstances.
At [13], the primary judge accepted the respondent’s unchallenged evidence of his obligations, including payments to the ATO, his rent, the mortgage repayments on the property and the fact that the cost of maintaining his liabilities outstripped income. The primary judge was mindful that the applicant’s application for exclusive occupancy of the property was on the basis the respondent continue to meet the mortgage payments referable to the property.
At [17], the primary judge was also aware of the applicant’s assertion of potential homelessness, prior to finding at [36] she would likely be able to “subsist” until the property settlement dispute is resolved.
The applicant could not identify where in the reasons the primary judge said the respondent’s financial hardship prevailed over the applicant’s assertion of homelessness or that these were the only two factors considered by the primary judge.
When read as a whole, the reasons demonstrate the primary judge did not exercise his discretion by balancing and weighing these two factors alone. The primary judge reached his determination after considering multiple additional factors, to which we have earlier referred.
There is no merit in this ground.
No substantial injustice
For the reasons we have provided, the primary judge’s reasons are not attended by sufficient doubt to warrant reconsideration by the Full Court.
We are not satisfied that the applicant has established reasonable prospects of success.
Additionally, authorities recognise that leave to appeal will be refused where the granting of leave would lack utility: Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520 at [27] per Bell P (as his Honour then was), with whom Meagher and Leeming JJA agreed.
Here, a lack of utility is firstly established by the applicant having already vacated the property and secondly, because it is not apparent that the financial circumstances of either parties are such that either of them has, or will have at the conclusion of the proceedings, sufficient income, property or financial resources to sustain the mortgage and outgoings necessary to retain the property.
Other orders referred to in the Further Amended Notice of Appeal
The Further Amended Notice of Appeal seeks leave to appeal Orders 2, 4(b) and 4(d) of the March 2023 orders.
Order 2 is the order requiring the applicant to vacate the Suburb C property and Orders 4(b) and 4(d) dismissed interim relief sought by the applicant, including property settlement, spousal maintenance and litigation funding.
The Summary of Argument of the applicant and oral argument during the hearing for leave to appeal were directed towards the sole use and occupation of the Suburb C property and no submissions were made pertaining to the other orders.
CONCLUSION AND COSTS
Having regard to the foregoing, the application for leave to appeal will be dismissed. The primary judge’s reasons are neither attended by sufficient doubt to warrant reconsideration by the Full Court, nor are we satisfied that there would be any utility in granting such leave.
If the applicant was unsuccessful, the respondent applied for the applicant to pay his costs on a party/party basis, which are calculated at $19,173.90 according to the Schedule of Costs filed 24 July 2023. The respondent relied on the applicant being wholly unsuccessful as a grounds for departure from the usual rule that each party shall bear his or her own costs expressed in s 117(1) of the Act.
The applicant submitted that if leave to appeal were not granted, costs should be payable by the applicant as sought by the respondent, but payment should be deferred until the conclusion of the property settlement proceedings.
Because the application was devoid of merit and had little regard to relevant authority, we are persuaded that there are circumstances justifying an order for costs. Even if the applicant is currently of limited financial means, an order should be made that she pays the costs of the respondent. Impecuniosity does not generally prevent the making of a costs order, nor should it in the present case (Bhatt & Acharya (Costs) [2017] FamCAFC 71), save that we agree with the parties the payment of costs should be deferred until finalisation of the extant property proceedings.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Gill and Williams. Associate:
Dated: 23 August 2023
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