Ettridge and Somers (No 3)

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS (NO. 3)

[2019] FamCA 520

FAMILY LAW – PROPERTY – stay – where the respondent has initiated appeal proceedings in relation to four sets of orders made by the Court over a period spanning almost two years – where the respondent seeks a stay of those orders pending appeal – no basis for a stay – order that the respondent’s application for a stay of the operation of orders be dismissed.

FAMILY LAW – PROPERTY – where the applicant alleges that the respondent failed to provide vacant possession of the former matrimonial home in accordance with orders – where the applicant seeks a warrant for possession issue requiring the respondent to give vacant possession of the property to the applicant pursuant to r 20.54 of the Family Law Rules 2004 (Cth) – order that a warrant for possession issue.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 20.54, 22.11

Federal Commissioner of Taxation v Myer Emporium Ltd [No.1] [1986] HCA 13; (1986) 160 CLR 220
Jackson & Balen (2009) FamCAFC 131
Jennings Construction Ltd v. Burgundy Royale Invesments Pty Ltd (1986) 161 CLR 681

APPLICANT:

Ms Ettridge

RESPONDENT:

Mr Somers

FILE NUMBER:

MLC

11262

2015

DATE DELIVERED:

2 August 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

17 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Paterson

SOLICITOR FOR THE APPLICANT:

Carew Counsel Pty Ltd

THE RESPONDENT:

In Person

Orders

The Marshal and all officers of the Australian Federal Police, for the purpose of giving effect to the Order of this Court made on 18 June 2019, requiring MR SOMERS to vacate the property situate at and known as B Street, Suburb C Victoria (“the property”) ARE DIRECTED with such assistance as they may require and if necessary by force to enter upon the property and cause MR SOMERS to vacate the property and give vacant possession of the land to MS ETTRIDGE.
That the Application in a Case filed 25 June 2019, Response to Application in a Case filed 15 July 2019, Application in a Case filed 12 June 2019 and Response to Application in a Case filed 14 June 2019 be otherwise dismissed.
That any application for costs arising out of these proceedings be by way of written submission filed as follows:-
(i)within 14 days of the date of these orders the applicant file and serve written submissions in support of the application for costs;
(ii)within 7 days of the filing of submissions pursuant to sub-paragraph (a) hereof the respondent file and serve any submissions in response to the application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ettridge & Somers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11262 of 2015

Ms Ettridge

Applicant

And

Mr Somers

Respondent

REASONS FOR JUDGMENT

Introduction

This matter came before me in the Judicial Duty List on 17 July 2019. This was as a result of applications made to the Court by both the applicant, Ms Ettridge, and the respondent, Mr Somers.
The respondent filed an Application in a Case on 25 June 2019. In his application the respondent seeks a stay of orders made by the Court on 18 June 2019, 29 October 2018 and 15 September 2017, pending determination of his appeals with respect to those orders.
The orders sought to be stayed by the applicant include:-
·    The declaration as to the existence of a de facto relationship between the parties made by Thornton J on 15 September 2017.
·    The orders for the sale of the property at B Street, Suburb C, Victoria (“the Suburb C property”) and the distribution of the proceeds of sale made by Cronin J on 29 October 2018.
·    The orders made by me on 18 June 2019 that the applicant vacate the Suburb C property.
The applicant opposes the respondent’s application.
The applicant sought to proceed with paragraph 7 of her Application in a Case filed 12 June 2019, seeking the issue of a warrant for possession of the Suburb C property pursuant to Rule 20.54 of the Family Law Rules 2004 (“the Rules”).
The respondent opposes that application.
At the conclusion of the hearing I made orders by consent that the respondent permit a valuer nominated by the purchaser of the Suburb C property to inspect that property on 22 July 2019; that order was necessary to ensure that the sale of the Suburb C property is able to proceed.
Otherwise I reserved judgment with respect to the parties’ competing applications. These are my Reasons for Judgment.

Material relied upon

The material relied upon by the respondent in relation to both of the applications, include the following:-
·    Application in a Case filed 25 June 2019;
·    Affidavit of the respondent filed 25 June 2019;
·    Affidavit of the respondent filed 16 July 2019;
·    Draft Notice of Appeal of orders made 15 September 2017 filed 7 June 2019;
·    Draft Notice of Appeal of orders made 29 October 2018 filed 7 June 2019;
·    Draft Notice of Appeal of orders made 7 December 2018 filed 7 June 2019;
·    Notice of Appeal of orders made 18 June 2019 filed 2 July 2019;
·    Affidavit of the respondent in support of the draft Notices of Appeal filed 7 June 2019;
·    Bundle of Annexures to the affidavit of Mr Somers filed 16 July 2019 (Exhibit A-1);
·    Bundle of Annexures to the affidavit of Mr Somers filed 25 June 2019 (Exhibit A-2);
·    Response to Application in a Case filed 14 June 2019; and
·    Affidavit of the respondent filed 14 June 2019.
The applicant relied on the following material in relation to both applications before the Court:-
·    Response to Application in a Case filed 15 July 2019;
·    Affidavit of the applicant filed 15 July 2019;
·    Affidavit of the applicant filed 11 July 2019;
·    Application in a Case filed 12 June 2019;
·    Affidavit of the applicant filed 17 June 2019; and
·    Bundle of annexures to the affidavit of Ms Ettridge filed 11 July 2019 (Exhibit R-1).

Background

The respondent, Mr Somers, is aged 55. The respondent owns his own consultancy business, however indicated to the Court that he is not currently working.
The applicant, Ms Ettridge, is aged 52. She is currently unemployed.
The applicant initiated proceedings in the Family Court of Australia on 1 December 2015 seeking final property orders on the basis that the parties had been in a de facto relationship for approximately 8 years.
The respondent denied the existence of a de facto relationship.
Justice Thornton presided over the hearing of the threshold issue, namely whether a de facto relationship existed between the parties. On 15 September 2017, Thornton J made the following declaration:-
(1)That pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between the applicant and the respondent for the period from January 2007 until 2 January 2015 with the exception of one month between January and February 2008.
The final hearing of the applicant’s application for property orders was heard before Cronin J over three days. Final orders were made on 29 October 2018 which provide as follows (“the Final Orders”):-
(1)Forthwith, the respondent do all things necessary to put the real property at B Street, Suburb C (“Suburb C”) on the market for sale by public auction with an agent to be nominated by the applicant.
(2)The respondent is to instruct the agent that, albeit he is the legal owner of Suburb C, the agent is to take instructions from both the applicant and the respondent in relation to:
(a)The date of the auction;
(b)The reserve price;
(c)The terms of any contract with a purchaser;
(d)The advertising and sale preparation expenses; and
(e)The agents’ commission.
(3)If there is any disagreement between the applicant and the respondent about paragraph 2 (a) to (e) of these orders or either party asserts non-compliance with that paragraph, the aggrieved party may apply, by application and affidavit to the Honourable Justice Cronin for determination of such disputed issues including for orders (if necessary) for the exclusion from participation in the said sale of any party not complying with these orders, and the matter be listed as a matter of urgency by the Court.
(4)That the applicant forthwith nominate, and the parties jointly appoint, a legal practitioner or conveyancing company, to undertake the relevant conveyancing in accordance with these orders.
(5)If Suburb C does not sell at auction and the parties do not agree as to how it is to be sold thereafter, they shall have liberty to apply.
(6)Upon the settlement of the sale of Suburb C, the proceeds of sale shall be applied by the conveyancing practitioners as follows:
(a)First, to pay any expenses of the sale, agents’ commissions, conveyancing fees and any adjustments for outstanding rates and taxes arising therefrom;
(b)Secondly, to discharge the following liabilities to F Bank:
(i)The Mortgage home loan numbered …89; and
(ii)The F Bank line of credit numbered …14;
(c)Thirdly, to hold the balance thereafter on trust for the parties according to paragraph 7 hereof.
(7)From the net proceeds of the sale of Suburb C remaining after paragraph 6 is satisfied, the balance be divided between the applicant and the respondent as follows:
(a)To the applicant, 58% of the gross sale price after deducting the items in paragraph 6 (a) and (b)(ii) but with a further $440 being added for the respondent’s share of the Mr H valuation; and
(b)To the respondent, 42% of the gross sale price after deducting the items in paragraph 6 (a) and (b)(ii) and from that share shall be further deducted:
(i)The amount referred to in paragraph 6 (b)(i); and
(ii)$440 being his share of the Mr H valuation.
(8)Should any party desire to seek an order for costs arising from these orders, they may do so by written submission filed and served by 4 pm on 9 November 2018 and any reply thereto shall be filed and served by no later than 4 pm on 16 November 2018 and such matters be determined on those submissions in chambers.
(9)Any order for costs arising out of the determination referred to in paragraph 8 shall be also adjusted within the terms of paragraphs 7 (a) and (b) hereof and a copy of any costs order shall be sufficient warrant for the conveyancer to make the necessary adjustments.
(10)Pending the completion of the sale of Suburb C, the respondent shall be responsible for maintaining the property in good order and condition.
(11)For the avoidance of doubt, paragraphs 1 to 3 of the orders of the Honourable Justice Johns made on 7 September 2018 continue until the completion of the settlement of the sale referred to in these orders.
(12)Pursuant to s 90SL(1) of the Family Law Act 1975 (Cth) (“the Act”) THE COURT DECLARES that MS ETTRIDGE and MR SOMERS are the trustees of the G self-managed superannuation fund with all of the rights and responsibilities as trustees to determine matters as required by the deed of trust.
(13)That notwithstanding paragraph 12 of these orders and notwithstanding anything to the contrary in the deed of trust, MS ETTRIDGE is authorised but in her capacity as trustee to the exclusion of any other trustee, to:
(a)Instruct an accountant to prepare financial statements and appropriate taxation returns for the said superannuation fund such that the fund becomes compliant;
(b)Arrange for the audit of the said superannuation fund;
(c)Authorise payment of the necessary expenses of the accountant and of any audit;
(d)Authorise the payment of any taxation including penalties and capital gains tax on the disposal of any of the assets of the said fund;
(e)Sell the fund’s gold bullion to Company L, Melbourne; and
(f)Give effect to paragraph 14 of these orders.
(14)Upon the completion of the compliance requirements in paragraph 12, the applicant and respondent in their capacities as trustees, do all things expeditiously to enable the applicant to roll out her member account to her fund of her choice.
(15)If the respondent desires to roll his member account out of the said fund and to terminate the trust, both the applicant and the respondent do all things required to give effect to that course of action at their joint expense
(16)THE COURT DECLARES that pursuant to s 90SL(1) of the Act, and save for the implementation of the terms of these orders, each party is the owner of the property in their respective possessions to the exclusion of the other party as of this date.
(17)That save as to issues of costs, and the continuation of all injunctive orders until the completion of the settlement of all orders hereunder, all extant applications are otherwise dismissed.
(18)It is certified that it was appropriate for the applicant to be represented by counsel.
The matter returned to Court upon the application of the applicant seeking to enforce the Final Orders. The issues before the Court on that occasion included the appointment of a selling agent for the Suburb C property. On 7 December 2018, Cronin J made the following orders:
(1)Paragraph (2) of the orders made on 29 October 2018 is discharged.
(2)For the purposes of the sale of the real property at B Street Suburb C (“Suburb C”), Mr FF (of the FF Group) is appointed by the Court as the agent for the sale of the Suburb C property.
(3)For the purposes of the sale of Suburb C, the following shall apply:
(a)The auction shall be on 9 February 2019 or 16 February 2019;
(b)The reserve price should be fixed at $880,000;
(c)The contract (apart from the usual terms) shall be that the settlement should be in 60 days;
(d)The advertising and sale preparation expenses shall be up to $3,000; and
(e)The agent’s commission is fixed at 1.32% of the gross sale price.
(4)By 4:00 pm on 8 December 2018, the respondent shall attend upon Mr FF for the purposes of signing any necessary document authorising him to act as agent for the sale of the Suburb C property.
(5)The respondent attend at the Suburb C property and make it available for inspections and indeed the auction, as and when required by Mr FF.
(6)The solicitor responsible for the conveyancing in respect of the sale of the Suburb C property shall be Mr GG.
(7)The applicant is authorised to attend the auction and participate in all activities that day.
(8)A copy of these orders be provided by the applicant or her solicitor to Mr FF as the estate agent as well as the conveyancing solicitor.
(9)The applicant have liberty to apply to the Court on short notice in relation to any issues of non-cooperation by the respondent.
(10)The reasons for these orders be published as quickly as possible.
(11)The respondent pay the applicant's costs fixed in the sum of $2,270, such sum to be paid from the respondent’s share upon the distribution of funds after the settlement of the sale of Suburb C.
(12)The application in a case filed on 3 December 2018 is otherwise dismissed.
The matter returned to Court again on 20 March 2019 in the Judicial Duty List as a result of the applicant’s Application in a Case filed 5 March 2019, seeking further enforcement of the Final Orders. On that occasion, the principal issue related to the sale process and fixing of a reserve price for the Suburb C property. On 22 March 2019, Cronin J made orders which provided that:-
·    The reserve price of the Suburb C property be revised to $850,000.
·    The Court appointed selling agent is to market the Suburb C property for four weeks at the reserve price.
·    If after four weeks the property has not sold at or above $850,000, that said reserve price be dispensed with and the selling agent have liberty to sell the Suburb C property to any willing purchaser.
On 7 June 2019, the respondent filed draft Notices of Appeal seeking leave to appeal out of time against orders made by Thornton J on 15 September 2017, as well as orders made by Cronin J on 29 October 2018, 20 November 2018 and 7 December 2018.
The applicant filed a further Application in a Case on 12 June 2019, due to the respondent’s refusal to sign the contract of sale for the Suburb C Property pursuant to orders made on 22 March 2019. The applicant also sought orders for a warrant for possession of the Suburb C Property pursuant to r 20.54 of the Rules. That application came before me on 18 June 2019 and that day I made the following orders (“the June 2019 Orders”):-
(1)That the applicant Ms Ettridge be appointed as Trustee to have sole conduct of the sale of the property situated at and known as B Street Suburb C, Victoria (“the Suburb C property”).
(2)That forthwith, the applicant in her capacity as trustee for the sale of the Suburb C property execute a Contract of Sale of the Suburb C property in the sum of $830,000, in favour of Ms HH or her nominee (“the purchaser”), along with all other necessary documents in order to give effect to the sale of the Suburb C property.
(3)That in the event that the sale to the purchaser named in order 2 hereof is not able to be completed, the applicant as Trustee continue to have the sole conduct of the sale of the Suburb C property on such terms and for such sale price as she deems appropriate, on condition that:-
(a)She provide no less than 72 hours written notice to the respondent of any offer to purchase the Suburb C property (“the offer”) prior to her acceptance of the offer; and
(b)The respondent have liberty to apply to the Court in the event that the offer is either not sincere or a contrivance or there are other purchasers immediately available who will pay more than the offer.
(4)That forthwith the respondent do all such acts and things as may be required to facilitate inspection of the Suburb C property by any valuer acting on behalf of the purchaser’s lending institution within 48 hours of a written request to so inspect.
(5)That the respondent vacate the Suburb C property within 21 days of the date of these orders and the applicant thereafter have sole use and occupation of the Suburb C property save that in the event of the respondent’s failure to comply with Order 4 hereof, the respondent vacate the Suburb C property within 7 days of the date nominated for inspection by the valuer.
(6)That the applicant be authorised (and these orders shall act as this authority) to:-
(a)Remove any property or possession left on the property by the respondent after vacating pursuant to Order 5 hereof, provided that she give the respondent up to 7 days to nominate a location for delivery (with the date and time of delivery to be as nominated by the applicant and occurring within 2 weeks of the respondent’s nomination), and in the event that the respondent fails to nominate the location within the timeframe specified, then the applicant be entitled to otherwise dispose of the property; and
(b)Dispose of rubbish left on the property by the respondent.
(7)That the applicant is to be responsible in the first instance for any costs of complying with orders 6(a) and 6(b) hereof, such costs to be reimbursed to the applicant upon the settlement of the sale of the Suburb C property after:-
(a)The payment of any expenses of the sale, agent commissions, conveyancing fees and any adjustments for outstanding rates and taxes arising therefrom; and
(b)The discharge of the following liabilities to F Bank:
(i)Mortgage home loan number …89; an
(ii)The F Bank line of credit numbered …14,
In accordance with paragraph 6(a) and (b) of the orders made by Cronin J on 29 October 2018.
(8)That any notice required to be given to the respondent by either the applicant or her solicitors pursuant to these orders is to be by email to the following email addresses:-
(a)…; and
(b)…
(9)The applicant be at liberty to provide a copy of these orders to the purchaser of the Suburb C property, the conveyancer Mr GG and such police stations or police officers as she considers necessary, without such disclosure amounting to a breach of s 121 of the Family Law Act 1975 (Cth).
(10)That any application for costs arising out of these proceedings be by way of written submissions to be submitted the Chambers of the Honourable Justice Johns not later than 4.00pm on Friday 28 June 2019.
(11)That paragraph 7 of the applicant’s Application in a Case filed 12 June 2019 be adjourned to a date to be fixed.
(12)That the applicant have liberty to apply to have paragraph 7 of her Application in a Case filed 12 June 2019 listed on short notice upon the filing of an affidavit evidencing the respondent’s non-compliance with Order 5 hereof and notification of the filing of that affidavit to the Associate of the Honourable Justice Johns.
(13)That all extant applications be otherwise dismissed.

I declined to make an order for the issue of a warrant of possession of the Suburb C property as sought by the applicant due to the absence of an extant order requiring the respondent to provide vacant possession of the property. As a result, that part of the applicant’s application was adjourned to a date to be fixed in the event of the respondent’s non-compliance with the June 2019 Orders.
On 2 July 2019 the respondent filed a Notice of Appeal with respect to the June 2019 Orders. Paragraph 8 of that Notice of Appeal confirms that the respondent appeals against all of the orders made that day.
On 25 June 2019 the respondent filed an Application in a Case seeking a stay of the following orders:-
·    Orders made by Johns J on 18 June 2019.
·    All extant orders made by Cronin J on 29 October 2018, save for orders 12, 13(a), 13(b), 13(c), 13(d), 14 and 15.
·    Paragraph 1 of the orders made by Thornton J on 15 September 2017.
That application for a stay of the operation of those orders pending determination of the appeals is opposed by the applicant.
The respondent’s application states that the stay of those orders is made pursuant to s 45 of the Family Law Act 1975 (Cth) (“Act”). Section 45 of the Act relates to applications to stay contemporaneous proceedings in other courts or transfer of proceedings to another court and is not relevant to the issue sought to be agitated by the respondent. His affidavit filed in support of his application confirms that the respondent seeks a stay of the operation of orders pending determination of his appeals. Notwithstanding the obvious error in the form of orders sought by the respondent in his application, the applicant did not press that issue.
On 11 July 2019, in accordance with order 12 of the June 2019 Orders the applicant filed an affidavit in support of her application to seek orders in the terms of paragraph 7 of her Application in a Case filed 12 June 2019, for the issue of a warrant for possession of the Suburb C property. The applicant deposes that the respondent has not complied with the June 2019 Orders requiring him to permit a valuer to access the property or the orders requiring him to vacate the property within 21 days.

The hearing

The hearing was conducted on the papers. The applicant was represented by counsel and the respondent represented himself, as he has done at previous hearings.
Prior to the hearing commencing, I informed the parties as to how the matter would proceed on the papers. The respondent confirmed his understanding of the process.
It was agreed between the parties that the stay applications should be determined first as that decision may impact the outcome of the application for the warrant for possession.
Prior to the commencement of the parties’ submissions in relation to those applications, I raised with the respondent the request made by him in his affidavit filed 25 June 2019 that I recuse myself. Whilst no formal application was before the Court, the respondent sought to press an oral application in those terms. The applicant, sensibly in my view, did not oppose the granting of leave to enable the respondent to make that application.
Upon hearing submissions from both the respondent and counsel for the applicant, I dismissed the respondent’s application that I recuse myself and delivered ex tempore reasons for judgment.
Prior to the commencement of the hearing of the balance of the applications, I informed the parties as to how those matters would proceed. In addition, I identified for both parties the principles relevant to the determination of an application to stay the operation of orders pending appeal, as identified in Federal Commissioner of Taxation v Myer Emporium Ltd [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Jennings Construction Ltd v. Burgundy Royale Invesments Pty Ltd (1986) 161 CLR 681 and restated by the Full Court in Jackson & Bolen [2009] FamCAFC 131.

Stay of orders

Legal principles

In relation to an application for a stay of previous orders of this Court, r 22.11(2) of the Rules provides as follows:-
If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
Rule 22.11(1) provides that the mere filing of a Notice of Appeal does not stay the operation or enforcement of the orders which have been appealed.
The principles in relation to the stay of a judgment pending appeal are well established. An application for a stay of judgment is a discretionary application to be determined on its merits. The principles relevant to the determination of a stay application were summarised by the Full Court in Jackson & Balen (2009) FamCAFC 131 at paragraph 28 and 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 application must be bona fides;
·    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.

Grounds of Appeal

The grounds of appeal proposed by the respondent in his draft Notices of Appeal filed on 7 June 2019 with respect to the orders made on 15 September 2017 by Thornton J and on 29 October 2018 by Cronin J and the Notice of Appeal filed 2 July 2019 in relation to the June 2019 Orders are almost identical in form. Though described as grounds of appeal, they were more akin to a list of complaints with assertions at times that certain of the trial judge’s findings were errors. The asserted errors are difficult to discern from the appeal notices, and where asserted, not particularised. The absence of particulars makes the assessment of the prospects or merits of the appeals difficult.
The grounds of appeal are set out in full as follows.
As to the draft Notice of Appeal filed with respect to the orders made on 15 September 2017, the grounds of appeal are that:-
(1)The Learned trial judge’s decision is plainly wrong.
(2)The learned trial judge failed to afford the appellant procedural fairness.
(3)The learned trial judge failed to provide adequate reasons.
(4)The learned trial judge erred and her Honour’s discretion miscarried in confining the scope of her enquiry into “the existence of a de-facto relationship between the parties” rather than considering whether the applicant had established a prima facie case and whether that case was sufficient to justify jurisdiction, the threshold hearing and her s.90RD of the Family law Act 1975 (Cth) declaration that a de-facto relationship existed between the parties;
(5)The learned trial judge was clearly biased and failed to bring an impartial and unprejudiced mind to the resolution of the question as to the existence of a de-facto relationship between the parties. Her honour clearly erred.
(6)The learned Justice Thornton J. erred on the facts;
(7)The learned Justice Thornton failed to take into account material considerations. Specifically, too much weight was placed on particular matters and too little weight was placed on other matters.
(8)The learned trial Judge took into account irrelevant matters; [sic]
As to the draft Notice of Appeal filed on 7 June 2019 in relation to orders 6, 7, 9, 11, 13(e) and 16 of the Final Orders, the grounds of appeal are that:-
(1)The Learned trial judge’s decision is plainly wrong.
(2)The learned trial judge failed to provide adequate reasons.
(3)The learned trial Judge clearly erred on the facts.
(4)The learned trial judge was biased and failed to bring an impartial and unprejudiced mind to the proceedings.
(5)The learned trial judge took into account extraneous or irrelevant material and failed to take into account material considerations, accepting hearsay as evidence, facts stated by the Litigant that were not substantiated with evidence, making statements and assertions that were in error.
(6)The learned trial judge in this instance acted under a misapprehension of fact in that significant weight was given to irrelevant and unproved matters.
(7)The decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court.
(8)A substantial injustice would result is leave were refused.
(9)A substantial wrong has occurred.
Finally, in the Notice of Appeal filed 2 July 2019 in relation to the June 2019 Orders the grounds of appeal are:-
(1)The Learned Judge’s decision is plainly wrong.
(2)The learned judge failed to provide adequate reasons.
(3)The learned trial Judge clearly erred on the facts.
(4)The learned trial judge was biased and failed to bring an impartial and unprejudiced mind to the proceedings.
(5)The learned trial judge took into account extraneous or irrelevant material and failed to take into account material considerations, accepting hearsay as evidence, facts stated by the Applicant that were not substantiated with evidence, making statements and assertions that were in error.
(6)The learned trial judge in this instance acted under a misapprehension of fact in that significant weight was given to irrelevant and unproved matters.
(7)The decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court.
(8)A substantial injustice has occurred.
(9)A substantial wrong has occurred.
The affidavits of the respondent filed in support of his stay application does little to assist in the assessment as to the strength of the proposed appeals. The evidence the respondent relies upon in support of his application and set out in his affidavits filed 25 June 2019 and 16 July 2019 may be summarised as follows:-
·    There is no urgent requirement for the respondent to vacate the Suburb C property.
·    It is asserted that the June 2019 Orders were made ex-parte. That contention is clearly an error as the orders made and my Reasons for Judgment confirm that the respondent appeared and represented himself at that hearing.
·    The mortgagee of the Suburb C property is unable to foreclose or initiate a mortgagee sale of that property. Further, the arrears owing under the mortgage are small and can be paid.
·    It is the transfer of wealth to the applicant’s lawyers that is the primary cause of the parties being in a parlous financial position, rather than the respondent’s failure to meet his obligations under the mortgage secured over the title to the Suburb C property.
·    The applicant has access to large sums of money which was disclosed in the proceedings before Cronin J. In contrast, the respondent does not have access to funds and is reliant upon Centrelink benefits.
·    There has been a significant miscarriage of justice in the proceedings and an “impartial review by the Full Court” of the material is required to establish the facts of the case.
·    I erred on the facts and my discretion miscarried when dealing with the proceedings on 7 September 2018 (which orders are not the subject of appeal) and 18 June 2019.
·    The applicant has not complied with orders 12 to 15 of the Final Orders regarding the rolling-out of her entitlements from the self-managed superannuation fund.
·    “The injustice evident in these proceedings requires…the checks and balances of impartial adjudicators who will have the benefit of the transcripts of these proceedings.” It is asserted that fraud is evident in the transcript of the proceedings.
·    The applicant’s lawyer has been active in “perverting the course of justice” over the course of the proceedings.
·    A stay of orders is essential to justice being served in the proceedings.
·    There was no de facto relationship.
·    That leave was granted to the respondent at a directions hearing on 12 July 2019 before Strickland J to file amended submissions with respect to his applications for extension of time to file the Notices of Appeal against the orders of Thornton J and Cronin J made in 2017 and 2018 respectively.
·    He is unable to comply with orders that he vacate the Suburb C property.
·    A balance sheet that “reflects the facts in this matter has never been put before the Court”. As a consequence it is submitted by the respondent that the current orders are “unsafe” and are not just and equitable.
·    The respondent was unrepresented from 11 July 2016. His former solicitors have exercised a lien over his file and this has compromised the conduct of the respondent’s case.
It is evident from the affidavits filed by the respondent in support of his application that he is operating under a misapprehension that if granted an extension of time to appeal against the orders of Thornton J and Cronin J that such appeal will be a re-run of the earlier hearings. That is not the function of an appeal; in order for him to succeed on appeal it is necessary for him to establish an error of law.
During his oral submissions, the respondent sought to emphasise the following factors in support of his application for a stay of the operation of the orders pending determination of his appeals:-
·    The fact that he was unrepresented at the relevant hearings.
·    He is unable to perfect the orders that he vacate the Suburb C property as he has no funds.
·    He seeks the opportunity to have “fresh eyes” look at the proceedings.
·    He does have valid appeal points. The documents filed by him to date are draft documents only.
·    He was unable to appeal against Justice Thornton’s orders within time as he could not afford the costs of the transcripts of those proceedings.
·    An accurate balance sheet as to the parties’ interests has never been put before the Court.
·    He has never had the opportunity to put “the actual facts” before the Court.
· He seeks the opportunity to cause a subpoena to produce documents to issue to his former solicitors to obtain their file so as to support his contention that the s 90RD declaration should not have been made.
·    The Final Orders made by Cronin J are not just and equitable as the Court never had before it “the actual facts”.
The applicant made the following submissions with respect to the respondent’s contentions.
First, it was submitted that there is no proper basis for the stay as sought by the respondent. The draft Notices of Appeal are deficient and have little prospect of success as they do not identify appellable errors. Further, it was submitted that the draft Notices of Appeal are significantly out of time, the grounds of appeal are not particularised and as such the documents are deficient. It was submitted that the explanations proffered by the respondent for the delay in filing the Notices of Appeal are inadequate. That he did not have access to a transcript is not an excuse for the late filing of those appeals. I accept that submission.
In assessing the strengths of the proposed appeals, I must have regard to the grounds of appeal asserted by the respondent and the reasons for judgment with respect to the orders appealed against. When considering those matters, it is my view that the respondent’s appeals have little merit; they do not identify appellable error.
Whilst the respondent asserts error in his appeal notices, he provides no particulars as to the nature of the asserted errors. Similarly, assertions that a decision is “plainly wrong”, that a “substantial injustice” has occurred or that a “substantial wrong” has occurred are not appeal grounds.
As to the applications for extension of time to file Notices of Appeal with respect to the orders of Thornton J and Cronin J, I am satisfied that the respondent provides no acceptable explanation for his failure to file the appeal notices within time.
The applicant also submitted that the respondent’s application is not made bona fide. In support of that submission reliance was placed on the fact that the respondent has not complied with the orders made on 18 June 2019. Further, there have been three enforcement applications filed with respect to the Final Orders made by Cronin J on 29 October 2018. It was submitted that the respondent has no regard for Court orders and has no intention to comply with the orders of the Court.
Further, it was submitted that the timing of the filing of the draft Notices of Appeal is significant. It is only when faced with the prospect of being removed from the Suburb C property that the respondent saw fit to file his applications for extension of time with respect to those appeals. It is submitted on behalf of the applicant, and I accept, that the respondent has filed the draft Notices of Appeal at this late stage in order to thwart the operation of the Final Orders regarding the sale of the Suburb C property
In assessing the bona fides of the respondent, the Court must weigh the balance of convenience and the competing rights of both the applicant and the respondent. The applicant’s position is that these have been long-running and hard-fought proceedings. The parties have had a five-day contested hearing as to the question of whether they shared a de facto relationship. The applicant was successful in that part of the proceedings which culminated in the orders of Thornton J made 15 September 2017. There has then been a further three-day hearing in relation to the applicant’s property application which has resulted in the orders of Cronin J made 29 October 2018. Those orders finalised the property proceedings.
The respondent participated in those proceedings and elected to represent himself throughout the proceedings. Although the respondent submitted that his parlous financial circumstances meant that he could not afford legal representation, orders made 7 September 2018 provided that the respondent be at liberty to borrow the sum of $50,000 from the parties’ home loan account in order to meet the costs of legal representation for the purposes of the hearing scheduled in October 2018. Having regard to that history, it is submitted on behalf of the applicant that she is entitled to the fruits of the judgment.
Although not expressly stated, it is clear from the respondent’s submissions that he now wishes to retain the Suburb C property. The position now asserted does not accord with the concessions made by the respondent that the property needs to be sold as recorded in the judgment of Cronin J delivered on 29 October 2018. Further, it was not contended by the respondent in the hearings of the applicant’s enforcement applications before Cronin J on 7 December 2018 or 22 March 2019 that the Suburb C property should not be sold. Indeed, the respondent at the hearing of those applications sought to be heard as to the identity of the selling agent, the terms and conditions for the sale, including the reserve price for that sale. It is only when there is an imminent sale that the respondent seeks to contend that the Suburb C property should not be sold and it is at that time that he appeals against the final property orders. Given that history, I accept the submission of the applicant that the respondent’s application is not bona fide.
Pursuant to the June 2019 Orders, the Suburb C property has been sold to an arms-length purchaser, with settlement of the sale scheduled to occur on 31 August 2019. The reality is that the respondent has entitlements to the proceeds of sale of the Suburb C property pursuant to the Final Orders and to that extent his rights are preserved.

Having regard to the history of the litigation, the concessions of the respondent recorded in the judgments of Cronin J and the position taken by the respondent in the earlier enforcement applications, I am satisfied that the balance of convenience when considering the competing rights of the parties favours the applicant.
The applicant also submitted that there was no evidence before the Court to indicate that the mortgagee of the Suburb C property had suspended their action to pursue their rights under the mortgage. As was observed in my judgment of 4 July 2019, the parties have been served with notices from the mortgagee as to its intention to exercise its rights under the mortgage due to the respondent’s failure to make payments in accordance with the mortgage facility. Whilst the respondent asserted that the mortgagee was not pursuing its rights as against the Suburb C property, he adduced no evidence to support that contention. Rather, the credit recovery notes of the lender which are exhibited to the respondent’s affidavit filed 25 June 2019 (Exhibit A-2) confirm action taken by the mortgagee, including the issue of default notices on 16 April 2019, confirmation that those notices are due to expire on 27 May 2019, a note as to the respondent’s complaint to AFCA regarding the lender’s conduct (23 April 2019) and finally, a note confirming that as there is an extant Family Court judgment that the Suburb C property be sold, a determination by the mortgagee to inform AFCA that the issue as between the applicant and the respondent has already been determined by the courts (26 April 2019). I am satisfied, having regard to the respondent’s evidence, that there is no basis for his assertions that the action of the mortgagee has been held in abeyance.
Having regard to all of those matters, I am satisfied that there is no basis for a stay of the operation of the orders of Thornton J, Cronin J or the June 2019 Orders. Accordingly, the respondent’s application for a stay of the operation of orders must be dismissed.

Warrant for possession of real property

Legal principles

Pursuant to r 20.54, the Court may issue a warrant for possession of real property. The Rule provides as follows:-
(1)An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days notice of the order to be enforced before the warrant is issued.
(2)A court may issue a warrant for possession authorising an enforcement officer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.
(3)If a person other than the respondent occupies land under a lease or written tenancy agreement, a warrant for possession may be issued only if the court gives permission.
Pursuant to the June 2019 Orders, the respondent was required to:-
· Facilitate inspection of the Suburb C property by any valuer acting on behalf of the purchaser’s lending institution within 48 hours of a written request to so inspect (Order 4);
· Vacate the Suburb C property within 21 days of the date of the orders, save that in the event that he fails to comply with Order 4, he was to vacate the property within seven days of the date nominated for inspection by the valuer (Order 5).
In her affidavit filed 11 July 2019, the applicant deposes that:-
· On 5 July 2019 she forwarded an email to the respondent informing him of the proposed attendance by the purchaser’s valuer to the Suburb C property at 8 July 2019. That notice was given to the respondent at his two nominated email addresses. The respondent notified the applicant’s lawyers at 4.48pm on 5 July 2019 that he had blocked the applicant’s access to his phone and email accounts. As a result of that information, the applicant deposes at paragraph 7 of her affidavit that she caused two further emails to be sent to the respondent’s email addresses from a newly created email account.
· On 8 July 2019 the valuer attended the Suburb C property. He was unable to access the property as it was unattended (paragraph 8). As a result of the respondent’s failure to comply with the orders to permit the valuer access to the property as well as his failure to vacate the Suburb C property within 21 days as provided at paragraph 5 of the June 2019 Orders, the applicant seeks a warrant to issue in accordance with paragraph 7 of her Application in a Case filed 12 June 2019. The respondent opposes that application.
During his oral submissions, the respondent maintained that he had been denied procedural fairness. Further, he asserted that the arrears owing under the mortgage to the Suburb C property were modest and had the applicant complied with the Final Orders regarding the rolling-out of her superannuation entitlements he would be in a position to discharge those arrears. He also asserted that there had been “a rip-off” and “cover-up”. Ultimately, in conclusion he conceded that his arguments were “loose at the moment” and not well defined.
There are outstanding orders for the sale of the Suburb C property. The applicant, exercising her rights as trustee for the sale has executed a contract for sale which is due to settle on 31 August 2019. As a result, she requires vacant possession of the Suburb C property in order to ensure its readiness for completion of sale.
Pursuant to the June 2019 Orders, the respondent was required to give vacant possession of the Suburb C property within 21 days, that is by 9 July, 2019. That did not occur.
Given the history of the respondent’s non-compliance with orders of the Court, the applicant seeks a warrant for possession issue to ensure that she is able to give vacant possession of the property to the purchaser on the settlement date.
I am satisfied having regard to the history to which I have earlier referred that the time has come for such warrant to issue. The respondent was ordered to provide vacant possession of the property by 9 July 2019. He failed to do so. He was also required to provide the purchaser’s valuer access to the property for inspection. The respondent proffers no acceptable reason for his failure to comply with those orders.
In the circumstances, I am satisfied that it is appropriate that orders be made in the terms sought by the applicant. Therefore the orders I make are set out at the forefront of these reasons for judgment.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 August 2019.

Associate:

Date: 2 August 2019

[2019] FamCA 520

2 August 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Stay of Proceedings

Appeal

Costs

Remedies