Forster and Forster (No.3)

[2013] FamCA 51

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO.3) [2013] FamCA 51

FAMILY LAW – PRACTICE AND PROCEDURE - Stay pending appeal - refused.

Family Law Act 1975 (Cth)

Bryant & The Commonwealth of Australia [1996] HCA 3
Federal Commissioner of Taxation v Myer Emporium Limited (1986) 60 ALJR 300
Jennings Construction Limited v Burgundy Royal Investments Proprietary Limited (1986) 161 CLR 681
Kelly & Kelly (1981) FLC 91-007
Molier & Van Wyk (1981) FLC 91-001
PetroTimor Companhia de Petroleos SARL v the Commonwealth of Australia [2003] FCAFC 83

APPLICANT: Mr Forster

RESPONDENT: Ms Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 25 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Adelaide/Melbourne by video link

JUDGMENT OF: Cronin J

HEARING DATE: 25 January 2013

REPRESENTATION

THE APPLICANT: Mr Forster in person

SOLICITOR FOR THE RESPONDENT: Ms Hicks

SOLICITOR FOR THE RESPONDENT: Catherine Hicks & Co

Orders

1. That the application by the husband for a stay of the orders made on 23 January 2013 is dismissed.

2. That the costs of the wife of this day fixed in the sum of $425 are reserved to the trial judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 3359 of 2007

Mr Forster

Applicant

And

Ms Forster

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed late yesterday afternoon and has been brought on urgently.  The Court’s resources in this particular case have been provided in this Adelaide case.  Two days ago I had an urgent application brought before me because the resident Adelaide judge was in Darwin and unable to hear it.  The application before me was that I direct the Registrar General of the Land Titles Office in Adelaide issue a new certificate of title to the purchaser of a property arising from a sale under orders of the Court.

2. This is an extremely complicated matter going back a long time and I can understand why Mr Forster, (“the husband”) has considerable concern about what happened and I have some sympathy for his position.  But as I explained two days ago, I was then dealing with a discrete application and the orders were extant and I was simply carrying the orders out.  The husband, as is his right, has filed this application today seeking seven orders.  The first of those orders is the one that I need to separate from the others.  It is an application that I stay the order that I made two days ago. 

3. That application must fail for a number of reasons.  First, the title did issue and the settlement of the sale was completed, I am told, at 11.30 am yesterday.  The husband has been provided, I am told, with all of the details about the sale.  The money from that sale is to be retained in a trust account pursuant to an injunction against the wife so there is no prejudice to the husband in terms of the money, albeit he may say that he wants now to keep the house.  The reality is the house has gone.  Whether that is right or wrong, no doubt the Full Court will sort it out.

4. On a stay application, the law is quite clear.  Ordinarily, a party is entitled to the fruits of a judgment but there are obviously circumstances in which a stay can be granted until an appeal is heard.  The stay power is clearly discretionary.  The authority for that proposition is in Kelly & Kelly (1981) FLC 91-007; Molier & Van Wyk (1981) FLC 91-001; Jennings Construction Limited v Burgundy Royal Investments Proprietary Limited (1986) 161 CLR 681; Federal Commissioner of Taxation v Myer Emporium Limited (1986) 60 ALJR 300; PetroTimor Companhia de Petroleos SARL v the Commonwealth of Australia [2003] FCAFC 83, and of course, Bryant & The Commonwealth of Australia [1996] HCA 3.

5. The applicant for the stay has to show some basis for it.  The principles that have been set out are clear.  Will the refusal of the stay render the appeal nugatory?  In this case, it will not, because of the fact that the settlement has already gone through.  Are there merits in the grounds of appeal? 

6. The husband has paid the $1200 filing fee for his appeal so I am treating this as a serious appeal.  The application sets out four grounds.  First, that I did not have all of the information before me to assist in making a just and equitable decision.  The fourth ground says that I could not have all of the relevant information before me due to the expediency of the application for the title.  I am putting those two grounds together.

7. Quite clearly, I can only operate on the information provided to me.  No application was put to me that there was information that I was not given.  Indeed, Ms West of counsel for the wife went through and gave me a chronological detailed history of this particular case and the various decisions that have been made along the way.  There is no merit in that ground.  The second ground is that procedural fairness was denied.  The husband has told me this morning that what he really means is that he was alluding to the whole process and not necessarily the process before me. 

8. It is hard to see how he was provided with procedural fairness.  A Federal Magistrate made an order that he have a litigation guardian and then various orders were made and without his knowledge.  The Full Court set aside the litigation guardian order.  Those are matters that need to be taken up in another place and certainly, there is little I can do about them.  The third of the four grounds is that natural justice was denied.  His point here is that all that had gone before him denied him natural justice.  It is similar to the second point but he also adds that it would be unfair because of the fact that he did not have the opportunity to have some say in the sale of the property to simply make an order that the title be replaced.  The reality was Dawe J dealt with the issue of the sale and her order is still extant.

9. I am not the Full Court and I am not determining the husband’s appeal.  It is always difficult for the trial judge who has made an order to consider how a Full Court would look at such a case.  On any view of the facts here, it is very difficult for me to see how those grounds of appeal have any merit.  Thus, on the basis of those grounds, it is not appropriate that I grant a stay, particularly having regard to the important point that the settlement has already gone through. 

10. I turn then to the other orders that the application seeks.  The second of the seven orders is, and I quote:

    That an expedited hearing is scheduled for hearing of the application in a case scheduled for 22 February 2013.

11. It makes little sense as it reads but I understand the husband to be saying that he has lodged an application in a case seeking a stay of an order made by Dawe J on 30 November 2012.  For reasons that escape me, that application was not listed by the Court in Adelaide until 22 February 2013.  When it was filed and how it was filed are completely beyond me.  All of that seems to me however, to be irrelevant.  I have read the orders of Dawe J of 30 November.  Her Honour dealt with the property sale issue and made an order.  Her Honour said that the husband made an oral application for a stay of her orders pending the appeal.  Her Honour dismissed the stay application.  That issue therefore, seems to me, to face the inevitable hurdle on 22 February 2013 that her Honour will say she is functus officio. 

12. The third order sought is that if an expedited hearing of the application of the stay cannot be heard then the duplicate certificate of title be stayed.  I do not have the power to stop the registrar issuing a new title once the order has been made.  Indeed, what I ordered the other day was that the registrar issue a title to the purchaser, not to the vendor.  On that basis, it would seem to me having regard to what happened yesterday, the purchaser already has the title.  I therefore, do not see I have any power to stop the Registrar General in Adelaide doing anything. 

13. The fourth order sought is that the restraining order imposed against the husband – and this morning the words “be terminated” were added because otherwise, it is nonsensical.  That restraining order, as best I can understand it, relates to an order precluding the husband from going to the house.  The order is still extant and, as he points out, there is probably no reason for him to go to the house now that it has been sold.  Be that as it may, there is no evidence before me in the affidavit that he filed yesterday which would justify me discharging an order granted some time ago on the basis that it was then proper.

14. The fifth order sought is that the property be returned to the husband pending resolution of appeal.  For the reasons already outlined, I do not have the power to do that. 

15. The sixth order sought is connected with the seventh.  Six reads, quote:

    That a litigation guardian is appointed for the wife.

    The seventh reads, “Medical examination” and then in parenthesis “PSY” which I understand to mean “psychology” or “psychiatry,” “be undertaken for the wife.” 

16. At its highest, the husband asserts that the wife is an obsessive compulsive disordered person who does not take her medication and drinks alcohol and he has this information provided by his son.  That information is not set out in any evidentiary form.  He concedes he has not spoken to the wife for four or five years, other than through the cross-examination he undertook on 30 November 2012.

17. As I pointed out, even if there was some indication in layman’s terms that the wife had a psychiatric or a psychological disorder, I certainly would not take it from the husband who is neither qualified in psychology or psychiatry.  On that basis, the application as a whole must fail and I propose to dismiss it. 

RECORDED  : NOT TRANSCRIBED

1. I will fix the wife’s costs at $425 being two hours or thereabouts on the scale and I will reserve those to the trial judge. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 January 2013.

Associate: 

Date:  11 February 2013