Forster & Forster (No 2)

[2015] FamCA 788

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO 2) [2015] FamCA 788

FAMILY LAW – PRACTICE AND PROCEDURE – Application filed by husband seeking a stay of execution of the Court’s Orders pending appeal – stay granted in part

Family Law Act 1975 (Cth)

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

APPLICANT: Ms Forster

RESPONDENT: Mr Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 1 May 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 1 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. BY CONSENT property order 2 of the Family Court orders made 10 February 2015 (‘the final orders’) (that the husband pay to the wife the sum of $151,379.50) is stayed; pending the determination of the Appeal from the final orders and IT IS NOTED that nothing in that stay is intended to prevent the operation or attachment of interest to that sum in the event that the order survives the Appeal.

2. BY CONSENT order 5 of the final orders (regarding the return or permanent deletion of medical reports) is stayed pending the determination of the Appeal of the final orders.

3. BY CONSENT order 9 of the final orders (allowing the return of documents on subpoena and documents tendered) is stayed pending the determination of the Appeal of the final orders.

IT IS FURTHER ORDERED

BY DETERMINATION

1. Order 8 of the final orders to provide that any application for costs to be made is extended to twenty eight (28) days after the conclusion of the Appeal of the final orders.

2. Such costs (if any) of both parties be and are reserved in relation to the stay application until twenty eight (28) days of the determination of the Appeal of the final orders.

IT IS DIRECTED

1. Reasons in relation to the stay application be taken out and placed on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No.2) 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 HOBART

FILE NUMBER: ADC 3359 of 2007

Ms Forster

Applicant

And

Mr Forster

Respondent

REASONS FOR JUDGMENT

1. Mr Forster (‘the husband’) and Mrs Forster (‘the wife’) have been engaged in proceedings in this Court and the Federal Magistrates Court, as it then was, over many years.  The property proceeding between the parties were heard by me in September of 2014, primarily in Adelaide.  On 10 February 2015 I made a series of orders, and I published reasons for the making of those orders.  The husband has now lodged an appeal against those orders, that appeal having been lodged on 10 March 2015, about one month after the orders were made by me. 

2. On 1 April 2015 the husband filed an application in a case seeking various orders, and I have that application in a case before me.  That application in a case was supported by an affidavit of the husband, attached to which is a document he asserted was to be a true copy of the notice of appeal.  This in turn had attached to it the orders made by me on 10 February 2015.  I have also had regard to my reasons, which I delivered on the same day.  The matter was sought to be heard on an expeditious basis, and the Court accommodated the husbands’ application in that respect.  It was heard today. 

3. The wife is now self-represented, and as a result I asked her which parts of the orders that she agreed to, and I assume that some of the orders may or could have been opposed.  She has filed no documents in relation to the stay application and no evidence in the stay application, and I am satisfied that she is entitled in any event to rely upon the determinations made by me in the hearing.  There was some implied criticism of her in that she had not filed a response to the application in a case.  Given the application by the husband to have the matter heard as soon as is possible, I make no adverse comment in relation to the wife in that respect. 

4. The principles applied in determining an application for stay are well known.  The principles relevant to this matter include the following:-

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

   (2)a person who has obtained a judgment is entitled to the benefit of the judgment;

   (3)a person who has obtained judgment is entitled to presume the judgment is correct;

   (4)the mere filing of an appeal is insufficient to grant a stay;

   (5)the bona fides of the applicant;

   (6)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;.

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

   (8)some preliminary assessment of the strengths of the proposed appeal - whether the appellant has an arguable case.

   (9)the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and[1]

   (10)any other relevant matter.

   [1] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18].

1. Order 2 of those made by me on 10 February 2015 provides that the husband pay to the wife the sum of $151,379.50 within 60 days from that date of that order.  The wife has indicated to me that she does not oppose a stay of that order, pending the outcome of the appeal.  Given that concession, I intend to make that order, but I make it clear that this does not stay any accumulation of interest that may arise under the rules of court in the event that the husband’s appeal against that order is unsuccessful. 

2. Order 5 of the orders provides that the husband return to the wife or permanently delete medical records of the wife which he has in her possession.  The wife says she is content for that order to be stayed pending the outcome of the appeal.  Order 9 of those made by me in February of this year provides for the return of documents on subpoena.  Clearly that order would need to be stayed and ought to be stayed pending the outcome of the appeal.  Accordingly, I make those orders by consent.

3. That leaves a number of orders to which I have to have some consideration.  I will first deal with those where I do not believe they are an application for stay order.  The first of those is order 2 sought by the husband in his application in a case filed 1 April 2015.  In that order the husband seeks a direction or a requirement that the wife obtain material from the Department of Treasury, Bureau of Fiscal Services in the United States.  It is by its nature, it seems to me, a discovery-type order.  It is not a stay of any order of which I have made.  My task in relation to this matter is limited to a determination of a stay, perhaps some limited mechanical orders and, given the orders made by consent earlier,, the question of costs.  Accordingly, that seems to me to be more a matter for the Full Court, and if the Full Court decides to remit the matter to another judge for further hearing, to that judge. 

4. Order 4 sought by the husband is not a stay order as such.  What he is seeking is some sort of confirmation that the wife has complied with the order made by me in order 6, in that she has sent a United States military identification card to the Consulate-General in St Kilda Road, Melbourne, Victoria.  That appears more of a mechanical order or an enforcement order.  There was no requirement made by me to forward the material provided in that order in the form sought by the husband.  That six weeks has passed, and given those circumstances, it is not a stay order.  It is beyond being a mechanical order, and I will decline to make that order. 

5. In determining the remainder of the matters, I am satisfied that the husband has lodged his appeal promptly and that he is bona fide in his appeal.  The appeal itself is quite voluminous.  It contains some eighteen grounds of appeal, which under each ground seem to be divided into sub-grounds.  Some of them are grounds, whereas some of them are allegedly assertions of fact.  There are 100’s of sub-grounds of appeal.  There are some 34 with ground 1, 27 with ground 2, 11 with ground 3, 7 with ground 4, 12 with ground 5, 10 with ground 6, 5 with ground 7, 12 with ground 18, 1 in grounds, 9,10,11,12,13,14 and 15, 76 with ground 16, 13 in grounds 17 and 1 in ground 18. 

6. In ground 1 the husband asserts as a general proposition the following:-

   The Husband’s legal representation was inadequate, absent the level expected from the profession that appeared prejudicially influenced and condoned by judicial official [sic] and their Honours as to marginalize the husband’s credibility and deny procedural fairness.

7. This ground is then divided into 34 sub-grounds, where there are criticisms made of other judges of this Court and the legal representatives who were assisting the husband and onwards.  Reading that ground, it does not seem a particularly strong ground.  Many of them, it would seem to me, would be irrelevant to the determination of the appeal with regard to the orders made by me and consideration of the reasons upon which they were based.  I treat this as a relatively weak ground of appeal. 

8. Ground 2 of the appeal is:-

   His Honour abused his Honour’s discretion through denial of discovery and prohibition on the husband’s cross-examination of $15,000.00 unaccounted for in any financial statement from its deposit in April 2008 until trial in Sept [sic] 2015.

9. The husband then sets out some 27 subparagraphs in relation to that.  Likewise this ground appears not to be the strongest or a particular strong point, in any event, although at least it seems to relate to the proceedings before me.  I treat this as a not particularly strong ground of appeal. 

10. Ground 3 of the appeal is a general complaint that the husband was deprived of procedural fairness and natural justice.  It is divided up into some 11 sub-grounds and again is a general complaint against the processes that occurred in the hearing and are not particularly strong grounds of appeal. 

11. In ground 4 the husband asserted that I prejudicially erred by proceeding to trial absent counsel’s compliance with the court order of 24 June requiring the tender of trial books and a schedule of assets.  That matter is then divided into a purported seven sub-grounds, but on a count back it appears that there are more likely 10 sub-grounds.  That matter was dealt with in the reasons and again is not a particularly strong ground of appeal. 

12. In ground 5 the husband asserts that I demonstrated biases in the face of evidence, provided a result for the husband that was manifestly unjust, and failed to arrive at a fair determination under the just and equitable clauses.  That is then divided into some 12 sub-grounds.  Again, comparing the affidavit of the husband and the reasons, it is not a particularly strong ground. 

13. The final grounds are grounds 6 to 18.

14. The language in the grounds is convoluted, and there are complaints about the whole litigation process and the outcome of the litigation process.  These do not seem particularly strong grounds.  I am therefore satisfied that the grounds of appeal, at least on the surface, are not strong. 

15. There is no evidence as to the period of time in which an appeal can be heard.  I will assume that it will take the normal time, which will be somewhere between 12 months and 18 months, which is a relatively long period of time. 

16. I am then left to consider the application for a stay in respect of the contested parts of the orders in the light of that approach.  In terms of order 3, the Court made an order:-

    3.Subject to these Orders; as between the husband and the wife it is declared that the following property is the wife’s property;

    3.1the proceeds of sale of P Street, Suburb N property previously held in interest bearing account with CBA Netbank Saver in the wife’s name,

    3.2the wife’s interest in property I Street, Suburb A (owned by wife jointly with Mr E),

    3.3the wife’s savings and investments held in any bank accounts in her name,

    3.4the wife’s interest in and entitlements in her HESTA Superannuation Fund, and 

    3.5the wife’s chattels and personal effects in her possession and/or control.

17. That includes: the proceeds of sale of P Street, Suburb N, which were disbursed to the wife after a determination by Cronin J about 18 months ago, and which, on the findings made by me, have been applied in various ways and is no longer in the form which the husband seeks; and her interest in the I Street property, owned by the wife with Mr E, and there is no evidence that the wife is taking any steps to sell that property, as far as I can determine from the affidavit material.

18. There seems in all of the circumstances no reason why those orders ought not to remain in place, and there seems no utility in staying that order, given the circumstances to which I have broadly alluded.  The husband also seeks a stay in relation to order 4.5, and I struggle to understand his reason for that application.  In statements made in submission the husband said there was some money which may be payable to the wife and perhaps to his children in relation to those proceedings.  There seems no utility in that stay, as order 4.5 vests the proceeds of that litigation in the husband.  There is no evidence, as far as I am aware, of any application by the wife for indemnity pursuant to the indemnity provided later in that order.  Accordingly, there is no utility in making that stay order. 

19. Finally there is the question of costs.  I intend to reserve the costs of this stay application until the outcome of the appeal.  It is unlikely that there is to be any costs in any event, because neither party is represented, but there may be something of which I am not aware.  Accordingly, I will reserve those and make orders in that respect.  There is an order, which is order 8 in the orders made by me, giving the parties leave to apply for costs including reserved costs and costs not otherwise dealt with in the proceedings.  Given the lengthy background of this matter, I intend to stay the operation of that order and provide that any application for costs should be made in accordance with the Family Law Rules 2004 (Cth) within the time permitted under those rules after the completion of the appeal proceedings.

20. I direct that my reasons in relation to the stay application be taken out and placed on the court file once settled.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 May 2015.

Associate:     G Doyle

Date:              1 May 2015