Forster and Forster (No 8)

[2013] FamCA 582

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO 8) [2013] FamCA 582

FAMILY LAW – Stay application pending appeal – Ample opportunity for appellant to place material before the Court having regard to previous applications – Experienced litigant knowing what was required but failing to produce any material that would justify a stay – Stay refused – Costs – s 117 considered – Order for costs thrown away.

Family Law Act 1975 (Cth)

Forster and Forster (No 3) [2013] FamCA 51
Forster and Forster (No 7) [2013] FamCA 522

APPLICANT: Mr Forster

RESPONDENT: Ms Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 8 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 July 2013

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Cox

SOLICITOR FOR THE RESPONDENT: Catherine Hicks

Orders

1. That the husband’s application for a stay set out in the application in a case filed 18 July 2013 is dismissed.

2. Upon the wife’s response to the husband’s application, the sum of $1928.85 held by the Ms D Trust Account be applied in part satisfaction of the wife’s outstanding costs order made on 2 July 2013.

3. That the husband pay the wife’s costs fixed in the sum of $880.

4. That the response to the application in a case filed 26 July 2013 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster 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. By an application filed 18 July 2013, Mr Forster sought a stay of final orders I made on 2 July 2013.  He sought a stay pending his appeal being determined by the Full Court of the Family Court of Australia.  In effect, he sought that money deposited in the wife’s solicitor’s trust account remain there until the Full Court determination.  A stay is opposed by a response filed by the wife on 26 July 2013. 

2. In his affidavit in support of the application, Mr Forster said (and I am summarising only the matters I consider relevant to my determination) the following:

   ·    At paragraph 24, he said there were special and extraordinary circumstances that justified a stay which was in effect, the need to preserve the subject matter of the appeal but secondly, if the stay was not granted, such an order would render his appeal nugatory;

   ·    At paragraph 25, he said Strickland J’s orders of 31 January 2013 were void in addition to which, I had abused my discretion (his expression) by excluding previous affidavits when I ordered the matter be set down for trial in March 2013.  Further, that I had erred in law by imposing restrictions about the service by him of documents.  He said I had also abused my discretion by failing to allow his legal representative an adjournment to prepare for trial and to allow him to acquire financial documents from the wife as well as the issuing by the Court of subpoenae;

   ·    At paragraph 26, he set out that on 26 June 2013, he received my order in the mail refusing his application to stay the orders I made in March 2013 setting the property case down for trial;

   ·    At paragraph 27, he referred to my order directing him to file material for the property trial but he noted that I gave him leave to issue subpoenae.  He then set out his endeavours after he realised that his stay application had been refused;

   ·    At paragraph 35, he said he was unaware that the property trial would be heard in Adelaide since all previous proceedings had been held in Melbourne.  I must comment at this stage that that is not an accurate statement.  All hearings have been in Adelaide but because there was no judge in Adelaide available to hear the matters, I conducted the various hearings by video link from Melbourne.  Everyone except me was in Adelaide;

   ·    At paragraph 38, he said that he had been unable to obtain details from financial records to be provided by the wife;

   ·    At paragraph 40, he set out that he had been requesting documents but the wife had failed to provide them;

   ·    At paragraph 43, he said that with his counsel withdrawing after being refused an adjournment of the trial, he sought not to participate because to do so, absent counsel, would result in significant prejudices to him;

   ·    In paragraph 44, he said he could not examine the wife and her legal practitioners and in particular their conduct absent having legal representation;

   ·    At paragraph 47, he observed that all of the funds that were accrued from the sale of the home were ordered to be distributed to the wife;

   ·    At paragraph 52, he noted that he anticipated his appeal would be heard in October 2013;

   ·    At paragraph 55, he said his appeal would be rendered nugatory because of people having exploited the case and taking his house in circumstances where the funds would never become accountable.  He then observed that it was important to justice that he regained his house;

   ·    At paragraph 77, he said that what had occurred was a denial of procedural fairness as well as having costs being awarded against him as a punishment.

3. The rest of the affidavit related to matters that I do not propose to consider because they were not in evidence before me at the final hearing or I do not consider relevant to the issue before me.

4. When the matter came on for hearing before me by video link on 30 July 2013, the wife had filed a response to what was then two applications in a case by Mr Forster.  The first application was simply to seek to have his application for a stay expedited.  I granted that application without any further consideration.  Thus, the matter before the Court on 30 July 2013 related to the stay of the orders.  The wife’s response related to issues associated with the distribution of monies and was really not a matter concerning the stay application.  Unfortunately, Mr Forster indicated that he had not received the wife’s response nor the affidavit in support of it.  He was provided a copy of both of those documents in the courtroom. 

5. I asked Mr Forster whether he wished to say anything further that was not already contained in his application having regard to its extensive nature.  He told me that he did have some further matters and he was content to put those in writing and provide them to the Court and to the wife’s solicitors by the end of the coming week.  He agreed that I should make orders to that effect.

6. A discussion also took place about the question of costs and Mr Forster indicated that he would deal with that in his response.  I gave him the opportunity of electing whether it was in the form of an affidavit or a written submission.  Counsel for the wife did not oppose either of those courses.

7. Mr Forster filed the written submission as he was ordered to do in Adelaide.  It was received on 1 August 2013.  A summary of it can be seen as follows.  The early part of the submission repeated the history of the matter and indeed, much of his earlier material (see paragraphs 2 to 15 of the affidavit). 

8. At paragraph 17, Mr Forster asserted that Strickland J instructed the “subordinate court” to conduct the trial proceedings in mid-May before me.  That is not what happened at all.  As the Part VIII orders had been set aside and there was a live application by the wife, the Court had an obligation to have it listed for trial.  Mr Forster had every opportunity to participate in those proceedings.

9. Under the heading of “The Stay Application”, Mr Forster set out that the wife’s solicitor had been instrumental in the high cost and behaviour of this case by the filing of false affidavits.  At first blush, that looks like an allegation of some wrongdoing by the solicitor but I interpret it as meaning that the wife had sworn false affidavits and the solicitor knowingly filed them.  The husband went on to assert that the financial documents for the calendar year 2008 were purposely omitted from discovery.  There is no evidence of either of those assertions and the husband had every opportunity to file that affidavit material prior to trial.  This is part of a consistent theme of a conspiracy between the wife and her solicitor but it remains unfounded.

10. The husband then drew attention to the fact that the wife had sworn an affidavit setting out that she had disposed of some of the funds but not accounted for the large bulk of it.  In my view, she does not need to because the money is hers.

11. At paragraphs 32, 33, 34 and 49 of the submission, the husband repeats accusations that have no relevance to the appeal that I can see.

12. At paragraph 40 of his submission, Mr Forster said that if the stay was not granted the wife through her solicitor would diminish funds “absent natural justice”.  That might be said to address the issue relevant to a stay application that a refusal of a stay would render the appeal nugatory but then in paragraphs 42 and 44, Mr Forster seemed to be suggesting that the wife’s financial interest would be enhanced by her current financial circumstances.  What he said at paragraph 42 was that there is an interest that the wife has in her late father’s estate and at 44, “all of the husband’s funds” were placed under the control of the wife and her solicitor.  Having regard to the findings that I made, that is clearly not correct.  There were many accounts that the husband had conceded in his own affidavit material that he had retained.  It would appear to me that if the orders I made were set aside, the wife would have sufficient property to contribute to an adjustment in the husband’s favour.  However, that is not what the husband is seeking.  He maintains his house must be returned to him (he repeats that in paragraph 52 of the submission).

13. At paragraph 50 of his submission, the husband said that his right of appeal was fundamental but at the same time acknowledged the discretionary power relating to the stay.  He asserted that the discretion should not be unfettered.  I agree with all of those matters.

14. I turn then to the other matters that required consideration bearing in mind that much of what Mr Forster said was not helpful.

15. It is important to note that the appeal against my orders has to be viewed in the context of the Notice of Appeal filed.  Mr Forster filed that Notice of Appeal within time and it contains 22 grounds.  It is important that this application is not distracted by examining those in minute detail and I propose to only refer to the matters which I consider relevant to the stay application.  Before doing so, I simply observe from what I said in the final reasons for judgment which are reported as Forster and Forster (No 7) [2013] FamCA 522:

    1.This modest property dispute has an extraordinary history for reasons which will be obvious from the many court events. In simple terms, the Federal Magistrates Court proceeded to hear and determine the property dispute at a time when the husband’s interests were represented by a case guardian. Much later, and after a significant expenditure of the parties’ money and, in particular the wife’s money, was spent on costs, the Full Court set aside the case guardian order. A little later again, Strickland J discharged the orders that were made under s 79 of the Family Law Act 1975 (Cth) (“the Act”). A variety of appeals, “stay” applications and other interlocutory hearings occurred both before and after the orders of Strickland J. Indeed the husband made an application for special leave to the High Court of Australia. About a week ago Hayne and Crennan JJ refused the husband’s special leave application.

    2.In March 2013, I listed the unresolved property dispute for final hearing.  I made directions for filing of trial material.  There was even an interlocutory hearing after that where the husband sought a stay of my directions pending an appeal.  As I have previously observed, the husband and his approach has been his own pursuit of justice mostly about the return to him of a house that has now been sold. 

    3.Yesterday, counsel appeared for the first time for the husband with a specific remit.  That was to seek an adjournment to enable lawyers to get on top of the material.  The husband had instructed them only days ago.  For reasons elsewhere given, the adjournment application was refused and counsel withdrew.  The husband then applied for an adjournment again.  This time, his application was based on the fact that he could not conduct a trial without legal representation.  For reasons also given at the time, that application was also refused.  Suffice to say, a litigant who has conducted hearings both here and it would appear overseas, prepared documents including a special leave application and appeared before the Full Court would normally be expected to conduct a modest property dispute hearing.  An argument that he needed representation to conduct a trial has little substance or merit.

    4.One of the issues raised by the husband was that he would not get a fair trial. I advised him that I would ensure otherwise and pointed out my obligation as described by the Full Court in Re F: Litigants in Person Guidelines (2001) FamCA 348.

    5.Having refused the husband’s applications, he said he would not participate in the trial notwithstanding he had filed a response seeking orders and an affidavit.  He left the bar table but it was noticeable that he did not leave the court room entirely.  I dismissed his response and gave the wife leave to proceed on an undefended basis.  At no time did the husband seek to again involve himself. 

16. The principles relating to a stay do not need to be repeated here but I otherwise incorporate into these reasons what I said in Forster and Forster (No 3) [2013] FamCA 51.

17. Mr Forster’s grounds numbered 1, 2, 6, 8, 15, 16, 17, 20 and 21 relate to discretionary issues.  He had from March 2013 onwards to get ready but was obviously not prepared to do so.

18. At ground 3, he asserted that I had failed to determine the assets.  Quite the contrary, I found on his own documents which were produced by the wife, there were significant funds in his possession and they needed to be taken into account in the just and equitable determination.

19. At grounds 4, 5, 9, 10, 11 and 18, Mr Forster asserted the manner of the trial impeded procedural fairness.  Having regard to the vagueness of those assertions, I have presumed it is much the same as the assertions set out in grounds 1 and 2 to which I have referred.

20. At ground 7, Mr Forster asserted that I had prejudicially allowed the wife and her sister to avoid the issue of a subpoena.  There is no evidence to support that assertion.

21. At ground 12, Mr Forster said the costs assessment impeded his ability to have a legal representative put forward that the wife’s conduct and that of her solicitor was prejudicial.  There is nothing in his affidavit that would justify such an assertion and I do not know that I could even say it is a recognisable ground of appeal.

22. At ground 13, Mr Forster asserted that there was insufficient reasons given for making the order for costs.  The reasons are at paragraph 66 to 73 of the judgment.  To a large degree, this is an assertion that discretion miscarried.

23. Ground 14 of the grounds of appeal relates to a complaint that the dismissal of his application for discovery ensured the wife’s solicitor’s conspiratorial efforts with lawyers in the United States of America were concealed.  I will not dignify that assertion by suggesting that it is even a ground of appeal.

24. At ground 19, Mr Forster said that I had erred by failing to allow him to sue for damages.  Absent some indication or evidence that might suggest there was jurisdiction to hear such an assertion, it too does not seem to me to be a ground of appeal in the true sense.  Nothing I said precluded Mr Forster from instituting a damages claim appropriate against the people that he wished to sue and in the proper forum.

25. At ground 22, Mr Forster repeated that he had been denied natural justice.

26. It is important that I make the following observations about those grounds of appeal because in context, they become important when I consider the authority to which I have referred in relation to what the applicant has to establish to succeed in the stay application. 

27. The power to grant a stay is in itself discretionary and should be determined on its merits.  The discretionary principles relevant include that the onus to establish a proper basis for the stay lies with the applicant but he does not need to establish any special or exceptional circumstances.  Other matters which guide the discretion include the fact that in this particular case, the wife has waited a long time for the case to be ultimately resolved.  This case began over six years ago and a person such as the wife who has obtained a judgment is entitled to presume that the judgment is correct particularly in this case where the application for the adjournment was refused after several months of being given the opportunity to prepare and having failed to do so. 

28. It is equally important to point out as I observed at the time that Mr Forster has been to both the Full Court and made an unsuccessful special leave application to the High Court of Australia.  He prepares his documents thoroughly, quickly and with great thought even if, in my view, they are misguided.

29. Another factor relevant to the stay application is the weighing up of the balance of convenience.  Although Mr Forster says that the appeal will be rendered nugatory, the wife has said in affidavit form that she wants to use the funds to acquire a house.  If Mr Forster is successful in his appeal, it is difficult to see that a stay rendering it nugatory or prejudicing him in any way just because the wife has access to the cash sums.  On his own evidence, Mr Forster had retained a variety of banking accounts and financial resources.  I must therefore reject that a stay would render his appeal nugatory.

30. It is appropriate to also consider whether the appeal is bona fide.  My concern is that this seems to be another part of a pursuit by Mr Forster for the return of his house.  He made that clear in his submissions and in his documentation.  The house has been sold to bona fide purchasers for value who now have legal title.  It is hard to see how his appeal was really about money at all but about the principle that he insists relates to justice.

31. I find that even if I did make the errors asserted by Mr Forster, there are two fundamental principles that he has to establish.  The first is that he was given an opportunity to participate in the trial process notwithstanding he had made clear that he was appealing to the Full Court.  He chose not to prepare for trial at a time when he had ample opportunity.  The case was set down in March and on his own evidence, he did not seek legal advice until the very last moment.  The second point is that even after being refused the adjournment, he specifically chose not to participate in the trial in circumstances where he was arguing that he was not capable of getting a fair trial or indeed conducting the trial himself yet he had extensive litigation experience.

32. In my view, I find there is little merit in any of the grounds to which I have referred above and I find that I cannot see the husband has an arguable case.

33. Even if I am wrong about that, the appeal may be heard later in the year and nothing I have read would indicate that a refusal of a stay would render the appeal nugatory particularly to the findings I have made as to the assets that Mr Forster has retained.

34. Taking into account all of those matters, the stay application must be dismissed.

35. As I indicated, the wife filed a response on 26 July 2013.  She sought orders that the sum of $1928.85 held in her solicitor’s trust account be applied towards costs.  She set out in affidavit form how that money remained and indeed there are orders outstanding for costs in her favour.  In my view, having regard to what has occurred in this case and the facts set out in that affidavit, nothing Mr Forster said would convince me that the wife is not entitled to those funds from the solicitor’s trust account.  She must therefore succeed.

1. When the matter was adjourned on 30 July 2013, the wife sought costs of $880 for counsel’s fees thrown away as a result of the adjournment.  The matter had to be adjourned predominantly because Mr Forster indicated that he had not received the affidavit material.  There is no evidence before me one way of the other.  With the failure of the stay application by Mr Forster, it must be seen as inevitable that the wife would have succeeded on her application for the part payment of the trust funds towards outstanding costs orders.

2. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party in proceedings in this Court shall bear their own costs save that if there are circumstances that justify a departure from that principle, the Court may make an order after taking into account the matters set out in s 117(2A) of the Act.

3. In his written submission, Mr Forster very appropriately dealt with the legal issues flowing from s 117 of the Act. He had thought about it carefully but what he was submitting was that he was now lacking in financial resources because the Court had placed the majority of his assets under the wife’s control pending appeal. He again ignores the fact that I made findings about what assets he had under his control. He then referred to the fact that he had been unsuccessful but that was on the basis that the orders had been made against him at a time when he had no legal representation. Again he ignores the fact that he had the opportunity to participate but chose not to do so.

4. Because of the matters that I have indicated above about the stay application and in particular the two main grounds that I see as a problem for Mr Forster, the stay application was almost certainly doomed to fail. The wife had little choice but to participate. In my view, there are justifiable circumstances to depart from the principle that each party pays their own costs. In respect of the matters set out in s 117(2A) of the Act, I am able to rely upon the findings I made as to the financial circumstances of the husband. He had assets which I have referred to in the judgment and having regard to the permanent pension that he receives from the United States, I find that he is not impecunious. On the other hand, the wife is living in very limited circumstances. In relation to the conduct of the proceedings, it was almost inevitable that Mr Forster would appeal and seek a stay as that has been his method of doing things since the proceedings began. He completes documents on time even if they are as I pointed out, misguided. There are no legal aid considerations in this case. It must be said that Mr Forster has been wholly unsuccessful in respect of all of the matters. In my view, there ought to be an order for costs in relation to the stay application not so much because of the costs thrown away but because of the wife having to attend with counsel to resist the application. Costs are not intended as a punishment but rather to compensate the party who has had to participate in the proceedings. That is most unfortunate in cases where the wife is the recipient of a judgment which she is entitled to presume is correct until it is set aside by a higher court. On that basis, the claim for $880 is not unreasonable and I propose to make that order.

I certify that the preceding Thirty Nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 August 2013.

Associate: 

Date:  8 August 2013