GALLOWAY & MIDDEN - [2014] FamCAFC 22

FAMILY COURT OF AUSTRALIA

GALLOWAY & MIDDEN

[2014] FamCAFC 22

FAMILY LAW – APPLICATION IN AN APPEAL – Where stay of trial judge’s orders sought – Where counsel for applicant sought application be withdrawn – Where the application was not properly brought – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the application could not succeed –The costs of the respondent to the application in an appeal be paid by the applicant.

APPELLANT:

Ms Galloway

RESPONDENT:

Mr Midden

FILE NUMBER:

DNC

199

2012

APPEAL NUMBER:

2013

DATE DELIVERED::

11 February 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

11 February 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 December 2013

LOWER COURT MNC:

[2013] FCCA 2264

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Gordon

SOLICITOR FOR THE APPELLANT:

Powell & Co Legal

SOLICITOR FOR THE RESPONDENT:

DS Family Law

Orders

It is ordered by consent:

The application in an appeal filed 13 January 2014 be dismissed.

It is further ordered:

The costs of the respondent to the application in an appeal be paid by the applicant to be assessed if not agreed.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 79 of 2013
File Number: DNC 199 of 2012

Ms Galloway

Appellant

And

Mr Midden

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

By way of application in an appeal filed on 13 January 2014, Ms Galloway seeks a stay of three orders made by Judge Harland on 25 October 2013 and 23 December 2013: the former being final property orders, the latter being orders amending and partially staying those final property orders.
The first order sought to be stayed is order (1) made on 23 December 2013 pursuant to rule 16.05(e) of the Federal Circuit Court Rules 2001. Order (1) amends under the “slip rule” what the trial judge found to be accidental errors in the final property orders of 25 October 2013.
The second order the subject of this application, order (4) of 23 December 2013, related to the controversy of Ms Galloway’s caveats over certain properties. Order (9) of the final property orders provided that within seven (7) days Ms Galloway cause all caveats lodged by her against any properties in which Mr Midden has an interest to be withdrawn. Order (3) of 23 December 2013 stayed that order only in so far as it applies to two Northern Territory properties. Order (4) of 23 December 2013 required that within three (3) business days Ms Galloway provide Mr Midden with signed withdrawals of caveats over two properties located in South Australia.
Order (14) in the final property orders is the final order sought to be stayed. That order compelled Ms Galloway to return to Mr Midden certain personal items including clothing and personal diaries.

THE APPEALS

Ms Galloway has filed two appeals. The first is NA 71 of 2013 where Ms Galloway appeals from orders made by Judge Harland on 25 October 2013. For the purpose of these reasons that appeal will be described as the “substantive appeal”. The second appeal is NA 79 of 2013 filed on 24 December 2013. It relates to certain orders of the trial judge made on 23 December 2013.

THE APPLICATION IN AN APPEAL

In submissions before me counsel for Ms Galloway asked that the application be withdrawn. The proper order of the Court is an order dismissing the application.
The only issue for determination in these proceedings is whether an order for costs should be made consequent on the dismissal of the application or whether the question of costs should be reserved to the hearing of the substantive appeal before the Full Court. It is necessary to appreciate the nature of the application to properly determine the question of costs.
The application asked for a stay of the following orders, which I now set out in full:
Order made 23 December 2013
1.That pursuant to rule 16.05(e) of the Federal Circuit Court Rules 2001 the Orders made 25 October 2013 be amended as follows:
(a) Order 1(e) of the Orders be amended with the years “2007 and 2008” be substituted for the words “2011 and 2012”:
(b) That Order (1) of the orders be amended with “$340,000” to be substituted with “$239,817”;
(c) That Order (13) be amended with the inclusions of sub Order (e) and (f) stating as follows:
e)That the respondent be restrained from continuing proceedings … in the Supreme Court of the Northern Territory.
f)That the respondent be restrained from instituting further proceedings against the applicant in respect of the property of the parties, trusts of the parties or either of them in any Court, apart from the Family Court of Australia or the Federal Circuit Court of Australia.
…
4.That within 3 business days the respondent provide to the applicant signed withdrawals of caveats for the [M street property] and [B street property] in South Australia.
Order made 25 October 2013
14.That within 14 days of the date of these orders, the Respondent shall return to the Applicant, the following items:
(a)Entirety of the file removed from [the A street property] containing, amongst other things, building permits, applications, construction inspection certificates and payment receipts, relating to the extensions and construction at [the M street property]:
(b) The Applicant’s LP vinyl collection;
(c )The Applicant’s personal photographs and diaries of his overseas voyage;
(d)The Applicant’s personal diaries;
(e)The Applicant’s winter clothing; and
(f)The Applicant’s dress trousers.
I understand that there is a real dispute about these issues in the appeal proceedings.
The application before me was principally brought because of a concern about the caveats Ms Galloway has over the two properties in South Australia. Counsel for Ms Galloway submitted that the application was brought to maintain what he called the “status quo”.
Some of the immediate difficulty has been resolved, as the regional appeals registrar has now made directions allowing the hearing of the two appeals in the 7 April 2014 sittings of the Full Court in Brisbane. The stay appeal will become unnecessary after the hearing of the substantive appeal.
In fairness to Ms Galloway and her lawyers, when the application was filed it could not have been known that the substantive appeal would be heard so quickly.
One curious aspect to the application is that the stay is sought in relation to paragraphs (1), (4) and (14). In the reasons of the judge at [10] it is said that the stay is agreed except for orders (9), (13) and (14).
The judge observed that there was no evidence that Mr Midden intends to sell assets. This lead in [14] for her Honour to conclude:
The respondent has not shown that keeping the caveats on the South Australian properties is necessary to protect her interests. These properties are owned by the applicant and a third party and there is no reason why [a] third party should be restricted from dealing with property if she decides she wants to sell the interests and the applicant agrees to that course. I will require the respondent to remove the caveats on that the [sic] South Australian properties. If she fails to do so in accordance with the orders I shall make the registrar of the court will sign the withdrawals of caveats. It will not be necessary for the applicant to make any further application to the Court. I refer to the affidavit of the applicant’s solicitor filed on 3 December 2013 indicating that the registrar of the land titles registration office in South Australia will accept the withdrawal of caveat signed by [a] registrar of this court.
It can thus be seen that the judge dealt directly with the question that was sought to be the issue contained in this application in an appeal. In relation to order (14) the trial judge said at [18]:
Order (14) requires the respondent to return various personal items to the applicant. The respondent was well aware of that order at the hearing and did not allege that certain items were no longer in existence. She only raised this with [sic] the matter was before me in court for the argument about the stay and other orders. I will not stay order (14).
The judge did deal in the second decision of her Honour directly with these orders.
The affidavit of the applicant reveals that her primary concern is that she is obliged pursuant to order (4) and (5) to withdraw the caveats over properties in South Australia failing such action the registrar of the Federal Circuit Court be empowered to sign the necessary documents.
18.If the Appeal is upheld on the basis that the Husband has appropriated to himself trust funds in excess of $1,853,333, there is insufficient equity in the remaining property pool to satisfy an order made in my favour that the property pool be split evenly.
…
37.I remain greatly concerned that if the Husband is allowed to deal with the properties as he pleases, he will dispose of them and divert or dissipate the proceeds of sale. There will be nothing left if I am successful in Appeal NA 71/2013 and there is a different order made as to the distribution of the assets of the relationship.
Mr Norrington who appeared for Mr Midden submits that this is simply not correct. That is a matter that will need to be decided by the Full Court when the appeals are properly before it.
The application in an appeal could never have been successful because these matters were directly dealt with by Judge Harland. The only way that those orders can be challenged is by way of an appeal that has already been filed.

Costs

The applicant should pay the costs of the respondent. It was submitted by Mr Norrington that the application raised a discrete issue, and that the costs of the application should not be reserved for the Full Court to consider. I understand that some offers were made yesterday, it is a great pity that the matter was not resolved.
Bearing in mind that costs do not follow the event, s 117(2) of the Family Law Act 1975 (Cth) provides the circumstances that would justify an order for costs. The main circumstance being that the application in an appeal filed 13 January 2014, as drafted could not have been successful.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Justice May delivered ex tempore on 11 February 2014.

Associate:

Date: 13 February 2014