Forster and Forster (No. 4)

[2013] FamCA 198

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (No. 4) [2013] FamCA 198

FAMILY LAW – APPLICATION IN A CASE – STAY – where the husband seeks a stay of orders made on 31 January 2013 pending determination of an appeal to the Full Court – where the wife opposes the application – where the applicant has not laid out any basis for the stay to be granted – where on a preliminary assessment the appeal has no chance of success – application dismissed.
FAMILY LAW – APPEAL – APPLICATION IN A CASE – COSTS – where the wife seeks costs in relation to the orders made today – application adjourned

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT: Mr Forster

RESPONDENT: Ms Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 20 March 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 20 March 2013

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mrs West

SOLICITOR FOR THE RESPONDENT: Catherine Hicks & Co

Orders

1. Paragraphs 1 and 3 of the Application in a Case filed by the husband on
   14 March 2013 be dismissed.

2. Paragraph 2 of the said Application be adjourned to 10:00am on Thursday
   6 June 2013.

3. The oral application for costs made on behalf of the wife today be adjourned for further consideration to 10:00am on Thursday 6 June 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

File Number: ADC 3359 of 2007

Mr Forster

Applicant

And

Ms Forster

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Today I have three applications before me.

2. First, the adjourned application for costs made on behalf of the wife in relation to orders made by me on 15 January 2013 and 31 January 2013.

3. The second application is an application in an appeal filed on 15 March 2013 by the husband seeking, in summary, an order staying the operation or enforcement of three orders that I made on 31 January 2013, pending determination of the husband’s special leave applications filed in the High Court on 25 February 2013, and any consequent appeal.

4. I observe that in that application, Mr Forster by way of the second order sought, seeks a stay in relation to orders that I made on 31 January 2013 in the first instance matter, namely ADC 3359 of 2007, and he seeks that stay pending the determination of the special leave applications.  The problem with that is that those orders are not orders which are the subject of the special leave applications, or indeed if Mr Forster has amongst his documents sought to make them the subject of his special leave application, that is incorrect given that they are, as I say, orders made by me sitting at first instance, and an appeal from them would lie to the Full Court.  In any event, I do not need to deal with paragraph 2 because Mr Forster has repeated that application in the third application which I will come to in a moment and which is the application in the first instance matter that is before me today.  Mr Forster also seeks an order for costs and he seeks that I be disqualified from hearing any costs application.

5. While Mr Forster was present I was able to confirm with him that he was not seeking that I be disqualified from hearing his applications today, and that that application is limited to, as he says in his document, “any costs applications”.  Thus, presumably, it would apply to the application for costs made on behalf of the wife to which I have just referred.

6. The third application before me today is an application in a case filed on
   14 March 2013 in which Mr Forster seeks an order staying the operation or enforcement of paragraphs 1 to 4 of my orders made on 31 January 2013 in the first instance matter, ADC 3359 of 2007.  He seeks that stay pending determination of the special leave applications, and any consequent appeal.

7. Unfortunately Mr Forster left the courtroom before I could raise this issue with him, but I have raised it with Mrs West.  It seems that in that third application Mr Forster has inadvertently sought a stay pending determination of the special leave applications, where he probably intended to seek a stay pending the determination of the Notice of Appeal that he filed on 26 February 2013 (SOA 9 of 2013), also against my orders of 31 January 2013, in the
   Full Court of this court.  That is a problem then, but as I have said to
   Mrs West, I am not going to stand on ceremony, and I propose to proceed on the basis that the application is an application to stay pending the determination of the Notice of Appeal to which I have just referred.

8. Further orders sought in that application are again that I be disqualified, but equally as in the other application, that is limited to the hearing of any costs application, and I do not need to be concerned about that today.  Finally,
   Mr Forster seeks an order for costs.

9. In relation to the first application that I have identified, namely the application for costs, Mrs West sought an adjournment of that application.  Mr Forster opposed that but indicated that if it was to be adjourned, because of his unavailability and his commitments, it should be adjourned to some time towards the end of May.  I gave some brief reasons at the time as to why I am prepared to grant the adjournment, and in summary, I accept Mrs West’s submissions that there has not been sufficient time to prepare that costs application for argument today because of the other matters that have been occurring namely, special leave applications to the High Court, Notices of Appeal to the Full Court, and the application in an appeal and the application in a case which are before me today.  Mrs West quite properly has indicated that before anything can occur in relation to the costs application Mr Forster needs to be informed of what is sought and the reasons for the application.  I am therefore prepared to adjourn the matter, and I propose to adjourn it to Thursday 6 June 2013.

10. Turning then to the other two applications.  In these proceedings it is only the application in a case that is strictly before relevant but because the issues, the arguments and the principles are effectively the same it is convenient to address both applications together.  Further, they seek the same result, namely a stay of the operation and enforcement of my orders made on 31 January 2013 pending determination of appeals filed by Mr Forster.

11. Mr Forster has filed supporting affidavits in relation to both those applications.  He did not annexe the Notice of Appeal to the Full Court filed on 26 February 2013, nor either of the applications for special leave to appeal to the High Court to those affidavits.  That is not necessarily a criticism, but strictly they should have been put before the court in that way.  Fortuitously, as always happens with appeals, copies of any Notices of Appeal or applications for special leave to appeal are forwarded to this court and then provided to me, being the judge sought to be appealed from.  Thus, I have been able to peruse the Notice of Appeal filed on 26 February 2013 and the two applications for special leave to appeal that Mr Forster has filed in the High Court on 25 February 2013.  Thus, I consider that I have sufficient material before me to properly determine these applications.

12. While Mr Forster was present I enquired of him as to whether he was pursuing the applications and whether he wanted me to deal with them today.  He indicated that he did, but unfortunately not long afterwards Mr Forster chose to leave the courtroom and not return.  I also invited Mr Forster to make any further submissions that he wished in support of the applications, and also to respond to the submissions of Mrs West, but he chose not to take up either of those invitations.

13. In terms of the principles to be applied in stay applications, they are well settled and I refer to the Full Court decision in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. In paragraph 18 of that decision the
    Full Court reiterated and summarised the relevant principles as follows:

    18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

    •the onus to establish a proper basis for the stay is on the applicant for the stay.  However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

    •a person who has obtained a judgment is entitled to the benefit of that judgment;

    •a person who has obtained a judgment is entitled to presume the judgment is correct;

    •         the mere filing of an appeal is insufficient to grant a stay;

    •         the bona fides of the applicant;

    •a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

    •a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

    •some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

    •the desirability of limiting the frequency of any change in a child’s living arrangements;

    •the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

    •the best interests of the child the subject of the proceedings are a significant consideration.

14. In the application in an appeal filed on 15 March 2013 the orders sought to be stayed are paragraphs 1, 2 and 3 of my orders made on 31 January 2013.  Those orders were as follows:

    SOA 44 of 2010

    1.That part of paragraph 1 of the amended application in an appeal filed by the husband on 27 July 2010 seeking an extension of time to appeal against final property settlement orders made on
    27 October 2010 by Federal Magistrate Lindsay be dismissed.

    2.The application in an appeal tendered and filed by the husband on 31 January 2013 be dismissed.

    SOA 46 of 2010

    3.The Notice of Appeal filed on 14 July 2010 and the application in an appeal filed on 10 August 2010 be dismissed.

15. To properly appreciate the reasons for making those orders it is necessary for me to refer to my reasons for judgment delivered on 19 December 2012, and of course, my reasons for judgment delivered on 31 January 2013.  In brief compass, the reason for dismissing those applications and appeals was because prior to the making of those orders I had set aside the orders which were the subject of those applications and appeals.  Thus, on that basis, there was no utility in allowing those applications and those appeals to proceed.

16. To go back a step further, and this is the thrust of my reasons for judgment of
    19 December 2012, I found that those orders that I ultimately set aside on
    31 January 2013, were voidable, and that was because those orders were made with the involvement of a Litigation Guardian appointed for the husband by Federal Magistrate Lindsay.  What had happened in relation to that was the husband appealed against the orders made by Federal Magistrate Lindsay appointing the Litigation Guardian.  I facilitated extensions of time to enable the husband to pursue that appeal, and that appeal was eventually heard by the Full Court.  The Full Court found that his Honour was in error in making the order for the appointment of a Litigation Guardian and set aside that order.

17. It then fell to me as the judge handling these proceedings to address the next step, which was what should then happen, and as I say, and to repeat, I ultimately found that those orders were voidable.  On 31 January 2013, on an application made by the wife to set aside those orders, I made the orders sought setting them aside, and as I have indicated, having set those orders aside I then dismissed the appeals and the applications

18. That then is the relevant background to the orders made on 31 January 2013.

19. Mr Forster has sought to appeal those orders and, as I have said, he has filed applications for special leave to appeal to the High Court.  It seems though that Mr Forster, although he has done his best, has doubled up and also made those orders the subject of the Notice of Appeal to the Full Court on
    26 February 2013.

20. I also mention that, with one of his applications for special leave to appeal, the husband has sought to appeal against four other orders that I made on
    31 January 2013, they being the orders whereby I set aside the voidable orders.  It seems to me that there is some confusion in Mr Forster’s mind about that because those orders were made by me sitting as a first instance judge, and any appeal from those orders would be to the Full Court of the Family Court of Australia.  Mr Forster has done that in his Notice of Appeal filed on 26 February 2013, but as I say, he has sought to also bring them into one of his applications for special leave to appeal.  On my reading of the documents there is a doubling up and an overlapping of those matters.  I had hoped to sort that out with Mr Forster today but I have not had that opportunity, and that will now have to be sorted out by the respective appeal courts.

21. Further, it is quite apparent on reading the appeal documents that Mr Forster has sought to bring in and address many other orders made in these proceedings, but not all made by me.  He has also sought to support his application for a stay by trawling far and wide back into the history of this matter and referring to proceedings before and orders made by Federal Magistrate Lindsay and the Full Court of this court, as well as orders made by me.  For example, Mr Forster is seeking orders from the High Court, and also from the Full Court, that his house be returned to him, that all property obtained from him be returned to him, and that “the wife’s solicitor … deposit all money to include interest be redeposit into the Husband’s appropriate Australian bank account before seized on in May 2010”.  Certainly those matters occurred in that the house was sold, the contents of the house were distributed, and money was withdrawn from bank accounts, but pursuant to orders made by others.  What Mr Forster also appears to overlook, and I recall mentioning this to him at a previous hearing, is that there is now in train a further application for property settlement as a result of the earlier order being found to be voidable, and then being set aside.  In the context of the hearing of that application, all historical financial matters will be relevant and will need to be taken into account by the trial judge.  But unfortunately, and this is another area where Mr Forster would benefit from taking legal advice, that comment seems to be lost on Mr Forster.

22. To highlight one further matter, and I mentioned this when Mr Forster was present in court whilst submissions were being made to me, Mr Forster is wanting to resurrect the past, yet one of the orders that he seeks from the High Court, is that there be a new property trial.  As I have said, I am bemused by that because that is of course what is happening.  Thus, confusion reigns.

23. Mr Forster of course is still unrepresented, and he would benefit greatly from obtaining legal advice about these appeals, including his applications for special leave to appeal, but that is a matter for him.  However, the problem that that creates today, both for him, and for me in trying to make sense of his appeal and his applications for special leave to appeal, is that as his applications stand, I do not consider that he has any chance of success in respect of either the appeal to the Full Court or in respect of the applications for special leave to appeal to the High Court.

24. I say that advisedly, because, of course, it can sometimes be that as matters progress arguments arise and become relevant which change what might have been the prima facie view of these matters.  I stress that I am proffering a prima facie view of these matters, but coming from the position of having an extensive knowledge of this case.

25. In any event, that is a problem for Mr Forster in terms of his stay application given that as I indicated earlier one of the relevant matters to address is to make a preliminary assessment of the likelihood of success of the appeal concerned.

26. Perhaps more importantly, Mr Forster has simply failed to lay out in his documents any basis for a stay to be granted.  He has failed to set out anything, for example, that would indicate that the failure to grant a stay would render the appeals nugatory. 

27. But I have jumped ahead.  I have only been referring at this point to
    Mr Forster’s application to stay the operation and enforcement of orders 1, 2 and 3 of the orders I made on 31 January 2013.  Of course, as I have said, he also seeks a stay against orders 1 through 4 that were also made by me on
    31 January 2013, and which preceded the other orders, and which were the orders that I made setting aside the voidable orders.

28. To bring that application into focus.  The comments that I have made to date in relation to the likelihood of success or otherwise of the appeal, or the special leave applications, or whether Mr Forster has laid any foundation for the stay orders to be made, and in particular whether he has provided a basis to find that if the stays are not granted the appeals will be rendered nugatory, apply equally to that application in a case seeking a stay in relation to the other orders made.

29. This is also Mrs West’s submission as I understand it.  For example orders 1, 2 and 3 that I made on 31 January 2013 dismissed the appeals and the applications.  Thus, there is in effect no operation of those orders which is continuing, and there is no enforcement of those orders which is on foot or proposed.  The same comment can be made in relation to orders 1 through 4 also made by me on 31 January 2013, and which are the subject of the application in a case filed by Mr Forster on 15 March 2013.

30. In relation then to the application in an appeal filed on 15 March 2013 I propose to dismiss paragraphs 1, 2 and 3.  Paragraph 3 is an order for costs.  Mr Forster is no longer here to pursue an application for costs, and, given the lack of success of his application today, I fail to see on what possible basis he would succeed on costs.  However, I propose to leave on foot Mr Forster’s application in paragraph 4 which seeks that I be disqualified from hearing any costs application.  Likewise in the application in a case filed on 14 March 2013 I propose to dismiss paragraphs 1 and 3 but leave on foot paragraph 2.

31. I note that as a result of the orders that I have made, Mrs West makes an application on behalf of the wife for costs in relation to the paragraphs of the two applications that I have dismissed.  However, she seeks that that application be adjourned to a date in June 2013.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 20 March 2013.

Associate:     

Date:              3 April 2013