GARDEN & GAVIN
[2010] FamCAFC 72
•8 April 2010
FAMILY COURT OF AUSTRALIA
| GARDEN & GAVIN | [2010] FamCAFC 72 |
| FAMILY LAW - APPEAL – Application for leave to appeal against orders made in 2007 – Judge set aside consent orders pursuant to s 79A(1)(d) in relation to property and adjourned the matter – Unusual circumstances of the case – Nearly two years elapsed between adjournment by trial judge and final property hearing in the Federal Magistrates Court – Where substantial injustice could result if the wife’s application for leave to appeal is denied – Application allowed. FAMILY LAW - APPEAL – Whether the Federal Magistrate erred in dismissing the wife’s stay application – Where the wife brought a second stay application against the final property orders made by the Federal Magistrate in 2009 – An earlier stay application in relation to the same orders had been dismissed – In light of the history of the matter and the material before the Federal Magistrate he was entitled to refuse the wife’s second stay application – Appeal dismissed. FAMILY LAW - APPEAL – Whether the Federal Magistrate’s orders should be stayed in light of the wife’s successful application for leave to appeal against the 2007 property orders – The wife has another appeal against the substantive property orders made by the Federal Magistrate – If orders are not stayed the matrimonial home will be sold and the wife left without any remedy – Stay ordered. |
| Family Law Act 1975 (Cth) |
| Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 Simpson and Hamlin (1984) FLC 91-576 The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 |
| APPELLANT: | Ms Garden |
| RESPONDENT: | Mr Gavin |
| TRUSTEE: | Mr S |
| FILE NUMBER: | BRC | 14346 | of | 2007 |
| FIRST APPEAL NUMBER: | NA | 17 | of | 2010 |
| SECOND APPEAL NUMBER | NA | 20 | of | 2010 |
| DATE DELIVERED: | 8 April 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 17 February 2010 and 5 March 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 October 2007 and 1 February 2010 |
| LOWER COURT MNC: | [2007] FamCA 1271 [2010] FMCAfam 81 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Fajardo |
| SOLICITOR FOR THE APPELLANT: | M L D G Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE TRUSTEE: | In person |
Orders
The appeal (NA 17 of 2010) from the orders made by Federal Magistrate Howard on 1 February 2010 be dismissed.
The appellant have leave to file an appeal from orders made by the Honourable Justice Bell on 18 October 2007.
The time within which the appellant may file a notice of appeal against the orders of Justice Bell made 18 October 2007 be extended to 4:00pm on Friday 16 April 2010.
Until the hearing and determination of the appeal from the orders of Justice Bell made on 18 October 2007 and the appeal from Federal Magistrate Howard’s orders made 18 September 2009, the orders made on 18 September 2009, 26 November 2009 and 1 February 2010 be stayed.
The appeals NA 20 of 2010 and NA 75 of 2009 be consolidated and heard together in the next sittings of the Full Court in Brisbane.
The parties attend upon the Appeals Registrar for the purpose of directions at a date and time allocated by him.
There be no order as to the costs of the appeal from the orders of Federal Magistrate Howard made on 1 February 2010 (NA 17 of 2010).
The costs of the application for leave to appeal against the orders of Justice Bell made on 18 October 2007 be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Garden & Gavin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 17 of 2010
NA 20 of 2010
File Number: BRC 14346 of 2007
| Ms Garden |
Appellant
And
| Mr Gavin |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment deals with an appeal by the wife filed 11 February 2010 from orders made by Howard FM on 1 February 2010, in particular the refusal by the Federal Magistrate to grant a stay of his orders (NA 17 of 2010). Secondly, although the events were earlier in time, there is an application filed by the wife (NA 20 of 2010) to appeal out of time from orders made on 18 October 2007.
An appeal was filed on 13 October 2009 from final property orders made by Howard FM on 18 September 2009. An amended notice of appeal was filed on 1 February 2010 (NA 75 of 2009). That appeal is yet to be heard.
Background
On 16 February 2010 the wife filed an application for leave to appeal out of time from orders made on 18 October 2007 by Justice Bell.
The order of Bell J set aside in part a consent order between the parties made on 5 May 2004. Those orders were in relation to the parties’ children and included orders for property settlement. In essence they provided that the wife pay the husband the sum of $15,000, release the mortgage over the former matrimonial home at A and in return the husband would transfer his interest in the house to her. The parties each retained other property including superannuation.
I understand that the wife paid the money to the husband and made the necessary arrangements with the bank to be solely responsible for the mortgage. The wife has, as envisaged by the order, met all the outgoings on the home, including the mortgage since the order was made.
The other significant part of the consent order related to the children, V born November 1993, and J born June 1996. The terms of the order provided that the children live with the mother and have what was then described as contact with their father. Essentially the time with their father was half holidays and during the school term five nights per fortnight.
It seems that some nine months after the consent order was made the children commenced living with the father and have continued to live with him.
It was these circumstances primarily that led to Bell J determining that the property orders should be set aside. I set out part of his Honour’s reasons:
2.This application was shortened, if I may put it that way, by the orders of Carmody J wherein on 17 September 2007 he made orders, certain notations and there was a list of agreed facts prepared. From those lists of agreed facts the following is not in dispute: That the parties were married for 11 years or thereabouts from December 1992 to August 2003; two children, being [V] …, and [J]…. That on 5 May 2004 a consent order was made before O'Reilly J in which the property, totalling $313,579, was divided between the parties, 66.7 per cent, or $209,305 to the wife with the balance of $104,274 or 33 per cent to the husband by consent order.
...
7.Since 2005 the children have resided with the father and had no contact with the mother from approximately 22 August 2005 to 8 May 2007 for reasons which are not agreed.
…
10.It is noted that the issues for trial were whether, since the making of the order circumstances of an exceptional nature relating to the care, welfare and development of the children of the marriage have arisen and; whether the final property orders made by consent between the parties by the Honourable O’Reilly J should be varied or set aside, and another order substituted pursuant to s.79A(1)(d). That order of Carmody J’s was made on 17 September 2007. Notwithstanding the clearness of the order, the respondent mother objected and indicated that the whole proceedings were unfair because she was not entitled to refer to other affidavits which had been filed in this Court before the order of 17 September and two affidavits subsequent thereto.
…
19.Is there hardship? Of course there is hardship. The children were living in a very comfortable home in the [A] area. They are now living in circumstances which are comparatively restricted and that in itself is sufficient hardship and I am satisfied that it is hardship. Consequently I am clearly of the opinion that the order should be set aside.
His Honour then proceeded to consider whether he should decide the parties applications for property settlement and said:
20.The next question for me to determine, and this is an exceptionally difficult question, is whether I should proceed with the application for property settlement today or no. I hesitate because of the following reasons which are self evident. The value of the property was agreed to by the parties as far back as 2004, I think the earlier part of 2004, at $405,000. I can take judicial notice of the fact that the value of real estate has increased enormously since that time and I can, with particularity, refer to [A] as being one of the suburbs which has increased enormously as well. I do not have any valuation as to that property and consequently I am loathe to embark upon a determination in so far as property is concerned without some valuation of that and up to date evidence of the applicant father’s superannuation. I do have some evidence from the mother.
RECORDED: NOT TRANSCRIBED
21.Regrettably I will have to adjourn the application to the trial list in order for the parties to prepare documents to place before the Court in relation to a property settlement. I dislike that but I cannot at this stage accept that $405,000 is the valuation of a property which was valued at least three and a half years ago in the [A] area. It could be doubled. I don’t know. I order accordingly. The application for a property settlement will be transferred to the list of the Registrar.
The judge then dealt with other applications and concluded that both parties were vexatious litigants and said:
22.There are other matters which are set out in the original application but I feel somewhat bound by the order of Carmody J. However, there is the question of so-called vexatious litigants. I have not set out in full the number of times that these parties, both of them, have come before this Court. I think it would weigh more heavily against the mother than the father. I will emphasise the matters which are contained in [Ms J’s] report, and in fact she suggests that an order should be made against both of them to stop them coming back to the Court, to let the children settle down. Since there is an application before me for declaring the mother a vexatious litigant, I think the jurisdiction of this Court has been excited and I will declare both of them vexatious litigants, and that means they cannot institute any action other than the ones which are in existence at this stage without leave of a Judge. Yes, transfer the application to the Registrar.
It remains unexplained why the property settlement proceedings were not heard until 18 September 2009 in the Federal Magistrates Court.
After giving reasons Howard FM made the following orders on 18 September 2009 by way of final property orders:
(1)That within thirty (30) days of the date of these Orders, the Wife vacate the former matrimonial home … .
(2)That no earlier than 19 October 2009, the former matrimonial home … be listed for sale by private treaty with a Real Estate Agent nominated by the President of the Real Estate Institute of Queensland (REIQ).
…
(6)That upon the completion of the sale of property, the proceeds of sale shall be applied as follows and in the following order:-
(a)To discharge the registered bill of mortgage granted to Suncorp;
(b)To pay all costs, commissions and expenses of the sale including statutory rates and charges in respect of the property, real estate and auctioneers commissions; and
(c)The Wife shall be solely responsible for any other debt or encumbrance on the property from her share of the nett sale proceeds.
(7)Subject to Order 6 hereof the nett proceeds of sale of the former matrimonial home shall be divided 62.5% to the Husband and 37.5% to the Wife.
(8)Neither party shall further encumber the subject property without the consent in writing of the other party previously had and obtained.
(9)Save for the contents of paragraph 7 each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and in the possession of such party as at the date of lodgement of these Terms of Settlement and that for this purpose:
(a)Bank accounts are deemed to be in the possession of the person whose name appears on the bank records;
(b)Insurance policies are deemed to be in the possession of the beneficiary thereof;
(c)Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements;
(d)That each party bear all debts in their respective names in regard to credit cards, personal loans and the like; and
Further each party will indemnify the other and keep the other indemnified in respect of any debts incurred by each of them subsequent to the date of separation.
(10)That the Wife be solely responsible for the payment of her outstanding legal debts.
(11)That the Husband be solely responsible for the payment of his outstanding legal debts.
(12)That both parties do all acts and things and execute all such documents as are necessary to give effect to the terms of these Orders.
(13)In default of the parties or either of them doing all acts and things and executing all such documents as may be necessary to give effect to these orders, a Registrar of the Federal Magistrates Court of Australia at Brisbane be appointed pursuant to Section 106A of the Family Law Act 1975 to execute all such documents in the name of the party in default and to do all such acts and things necessary to give efficacy to these orders.
(14)That each party bear their own costs of and incidental to these proceedings.
As can be seen, the final orders provided for a division of the net proceeds of the sale of the former matrimonial home, with 62.5 per cent attributed to the husband and 32.5 per cent to the wife.
I set out below parts of the Federal Magistrate’s reasons which are a necessary background to understand the matter on appeal:
1.This is an application for property settlement proceedings. The parties in this case were married in December of 1992. The applicant husband is aged 60 years the respondent mother is aged 43. The parties have two children, the two children’s names are [V] … born … November 1993 and [J] … born … June 1996. These parties have a long history of Family Law litigation. There are in place final parenting orders which are as per the orders made by Jordan J on 28 June 2007. Those orders remain in place except for order number (3) which was varied by an order made by me on 30 April 2009.
2.Essentially the children live primarily with the father in [C]. The daughter, the younger child, spends alternate weekends with the mother. Currently the son, who is 15 years of age, does not spend time with the mother.
…
7.I note further by way of background the following:-
a)as noted earlier the parties were married in December 1992;
b)the parties were separated under the one roof in approximately 2001;
c)in August 2003 the husband left the matrimonial home;
d)the husband is [an engineer] and the wife is [a chemist];
e)the best evidence available to the Court is that of the husband who says that it is his understanding that the wife remains working for [her employer].
It is important to appreciate that the wife did not participate in the final hearing. Of this, Howard FM said:
33.Whilst it is somewhat unconventional the wife did send a letter to the Court dated 10 September 2009 making it clear that she did not intend to take part in the proceedings. I am not going to admit that letter into evidence. It has not been sworn. It has not been properly proved. But I am going to take into account one aspect of it where the wife makes it clear that her current contract expires at the end of this month saying that she will most likely be unemployed from October 2009. The wife has not come to Court to explain that or give any particular evidence about it.
The wife, despite an apparently deliberate failure to appear at the hearing, sought a stay of the final property orders. The hearing of that application (described as the “first stay application”) was on 26 November 2009.
Howard FM dismissed the first stay application. In doing so, he varied the orders of 18 September 2009 by extending the time by which the wife must vacate the home to 8 January 2010. He further ordered that the sum of $65,000 be retained by the trustee after the sale of the house. It was thought by the Federal Magistrate that this sum represented 15 to 16 per cent of the net proceeds of the sale of the house and thus provided a sufficient buffer should the appeal succeed. A notation attached to the orders provided:
B.That in the event that the Wife has failed to vacate the property by 8 January 2010, the matter will come back to Court for mention before FM Howard on 1 February 2010 at which time the Court will consider making the following orders:
(1)The appointment of [Mr S], Solicitor as Trustee to take possession of the property in order to effect the sale of the property (such trustee to be appointed pursuant to section 80(1)(e) and/or section 80(1)(k) of the Family Law Act 1975);
(2)The issuing of an injunction requiring the Wife to vacate the property and a further injunction restraining her from re-entering and/or resuming occupation of the property; and
(3)The issuing of a warrant for the arrest of the Wife in the event that she fails to comply with these orders and continues to remain in occupation of the premises.
The wife did not appeal from those orders.
The wife refused to vacate the premises and filed a “second stay application” on 21 December 2009. This application came before Howard FM on 1 February 2010. The Federal Magistrate dismissed the second stay application and it is those orders which are the subject of the appeal I am asked to determine.
In considering the second stay application, Howard FM observed that there were two matters to be addressed.
The preliminary point was whether he had the power to “entertain a second application for a stay of the same orders” when the first had been “rejected substantially”. He determined that he was functus officio in respect of the issue and said “I do not consider that I have either the power or the jurisdiction at this stage to consider a further application for a stay”. (Reasons, [10])
Howard FM then considered the merits of the wife’s stay application, in the event he was not functus officio. He found that there was no further evidence which would persuade him to “change the approach…adopted on 26 November 2009.” He continued:
13.Substantially for the same Reasons that I gave on 26 November 2009 therefore, I do not accede to the wife’s request to stay the orders. The orders that have been made, including the variation made on 26 November 2009, should be carried into effect.
The orders made by the Federal Magistrate on 1 February 2010 were:
(1)That [Mr S], Solicitor as Trustee, be appointed to take possession of the property situated at [A] in order to effect the sale of the property (such trustee to be appointed pursuant to section 80(1)(e) and/or section 80(1)(k) of the Family Law Act 1975).
(2)That a Mandatory Injunction issue requiring the wife to vacate the property at [A] by 4.00 p.m. on 22 February 2010.
(3)That a further Injunction issue and become operative at 4.00 p.m. on 22 February 2010 restraining the wife from re-entering or resuming occupation of the said property after that time, being 4.00 p.m. 22 February 2010.
(4)That once [Mr S] has sold the property, that he file and serve an Affidavit giving an account to the Court of what has occurred in relation to the sale of the property.
(5)That [Mr S] is to determine whether or not the property is sold by auction or private treaty and [Mr S] is to decide the list price, et cetera.
(6)That this matter be adjourned for Mention to 9.30 a.m. on 22 April 2010 in the Federal Magistrates Court of Australia at Brisbane.
(7)That the Applicant wife’s second Application for a stay filed 21 December 2009 is dismissed. (original emphasis)
By her appeal the wife asks that the orders of FM Howard dated 1 February 2010 be set aside and the orders of Howard FM made 18 September 2009 be stayed until the determination of her appeal against the substantive property orders.
The application for leave to appeal (NA 20 of 2010)
In support of the application the wife filed an affidavit which annexed a draft notice of appeal. An amended draft has subsequently been provided.
In accordance with settled authority it is necessary for the applicant to:
1. Explain the delay in seeking to appeal;
2. Demonstrate some prospects of success in an appeal; and
3.Demonstrate, taking into account those matters that the prejudice to the respondent is either of limited significance, can be ameliorated by costs orders or for other reasons should not determine the application for leave.
The amended grounds of appeal in draft are as follows:
1.Bell J erred in law in applying s 79A (1) (d) of the Family Law Act 1975 by finding that the “moving of the children from the father (should be “mother”) to the mother (should be “father”) is a matter of exceptional nature”. His Honour relied on two unreported cases. Authorities have held that the change of residence of children is not by itself an exceptional circumstance but part of “ordinary vicissitudes of life” and more is required to render the movement of children as exceptional circumstance.
2.Bell J, further erred in applying s 79A(1)(d) by holding that the change of residence of the children from “a very comfortable home in the [A] area ….. now living in circumstances which are comparatively restricted and that in itself is sufficient hardship and I am satisfied that it is hardship ….. I am clearly of the opinion that the order should be set aside.” His Honour based this finding on a wrong knowledge of fact that the home where the children live with the father was a two-bedroom home compared to the three-bedroom former matrimonial home. In fact, the home that the father occupies was and is a three-bedroom unit in an expensive suburb of [C]. Authorities have held that “hardship” under the section requires more than just mere inconvenience.
3.His Honour, Bell J, erred in exercising his discretion in setting aside the more than 3-year old final property orders without considering other factors established by authorities such as (a) whether either party has restructured their financial affairs in reliance of the orders; (b) whether any hardship is of such a serious nature and results in such inequity that can only be rectified by the extreme step of setting aside the existing order; (c) whether heavy weight was placed on the residency of the children being with the mother in arriving at the Consent Orders approved by O’Reilly J; or (d) whether the final property Orders of O’Reilly J were just and equitable and should not be set aside or varied even considering the circumstances that have arisen after the final property orders were made.
4.His Honour, Bell J, erred in law by ignoring the duty of the Court under s 81 of the Act by setting aside on 18 October 2007 more than three years after the final property Orders were made by O’Reilly J by Consent of the husband and wife on 5 May 2004. His Honour should have given effect to s 81 of the Act as the final property settlement Orders of 2004 ended the financial relationship of the husband and wife.
5.His Honour, Bell J, denied the wife natural justice at the trial by treating the wife with contempt clearly demonstrating his bias against her and resulting in a decision favourable to the husband without carefully considering the factors that he needed to consider in making the orders.
6.The setting aside of the 2004 final property Orders resulted in injustice and inequity for the wife because she has already restructured her financial affairs and have been paying the mortgage, interest, insurance, rates and other costs incidental to keeping and maintaining the property. The wife, by the way the property settlement was structured, in effect took on the position of a purchaser of the former matrimonial home.
In the affidavit supporting the application the wife complains that Bell J exhibited bias towards her:
13.During the hearing, His Honour, Bell J was very biased with me particularly in the way his Honour treated me at the hearing.
The only explanation for failure to file an appeal within time appears in paragraph 14:
14.I did not appeal the order of Bell J of 18 October 2007 setting aside the final property settlement of 5 May 2004 because I misunderstood Order 3 to mean that an appeal against the orders is not allowed. Instead, I wrote a number of letters to the Court protesting against the order.
To some extent, an explanation for the delay may be inferred from paragraphs 15 and 16:
15.I expressed my complaint and disappointment. In a letter dated 19 October 2007 addressed to the Chief Justice, Family Court of Australia. Among others, His Honour, Bell J treated me very unfairly if not rudely. He effectively put himself in the place of the applicant and degraded me in every opportunity he had, over and over again. …
16.I sent another letter dated 12 December 2007 to the Chief Justice and the senior judges and I clearly stated that I will not be participating in any more hearings of this kind until the trial of Bell J be declared mistrial. …
There is no reference to the merits of the appeal other than an assertion that she has an “arguable case”.
The court was also provided with a copy of the transcript from the hearing before Justice Bell.
The husband, who appeared for himself relied on three documents:
·Response to Applicants Summary of Argument filed 3 March 2010 (this document was prepared for the wife’s application to stay the order of the Federal Magistrate);
·Response to Applicants Draft Notice of Appeal filed 3 March 2010; and
·Response – Applicants Affidavit 16 February 2010.
The husband opposes the application for leave. While the response largely contains subjective and argumentative material he does point out the considerable benefit to the wife of having the occupation of the home for many years.
In addition, the husband is concerned that the effect of the orders of Bell J is that neither party can file further applications, including appeals. For the purpose of the hearing of this appeal and the application, it is my view that the order was limited as his Honour expressed it and does not include appeals or applications associated with appeals.
Conclusion – leave out of time
Although a significant time has elapsed since the making of the orders on 18 October 2007, the circumstances of this case are unusual. Without prejudging the success or otherwise of the appeal, it may cause the wife substantial injustice if she is not able to appeal from those orders in view of subsequent events.
These include that the wife paid the husband the sum of $15,000 and renegotiated the mortgage, becoming solely responsible for the payments. Of course, the wife continued to have the benefit of living in the home. In part, caused by her deliberate absence, these historical matters do not seem to have been considered by the Federal Magistrate when he made the final orders.
Secondly, it may have been an error for Bell J to have set aside the orders and adjourned the matter rather than rehearing the property issues at a time when the evidence necessary had been gathered. Reliance was placed on Simpson and Hamlin (1984) FLC 91-576, particularly at page 79,659.
Certainly this difficulty was compounded by the unexplained delay between 18 October 2007 and the hearing on 18 September 2009, the date of hearing before the Federal Magistrate.
The other alleged error in the decision of Bell J was the conclusion that the change in the children’s circumstances was such an exceptional circumstance that the orders should be set aside pursuant to s 79A(1)(4D). Again reliance was placed on Simpson and Hamlin, particularly at page 79,659.
It was submitted that the delay in seeking to appeal from the orders of Bell J is explained by reason of the order preventing the parties from instituting proceedings for property settlement without leave of a court. It is understandable that the parties might have found this order confusing in the circumstances.
The possible prejudice to the husband is a serious consideration. The husband did receive the benefit of the original orders. He has not received the benefit of the orders made by the Federal Magistrate. However, the argument on appeal may demonstrate that there was a substantial injustice to the wife in the orders being set aside without a hearing on the merits at the same time or shortly thereafter. It seems that the wife took other actions including corresponding with the Court.
In the unusual circumstances of this case, it is appropriate that leave be given to appeal the orders of Bell J made 18 October 2007.
Appeal from the refusal of the Federal Magistrate to grant a stay (NA 17 of 2010)
The principles to be applied in hearing a stay application pending an appeal are not in doubt and do not require extensive restatement. I refer to the judgments in The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 and Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681.
The onus was on the wife to satisfy the Federal Magistrate that there were circumstances justifying the granting of a stay.
Brennan J in Jennings Constructions considered an application for stay pending the determination of an application for special leave to appeal to the High Court of Australia. His Honour set out some of the relevant considerations to be taken into account at 685:
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies. (emphasis added)
Whilst it is a matter of discretion, in the present appeal from the order of the Federal Magistrate on 1 February 2010 the relevant consideration was whether the refusal of the stay would render the wife’s appeal nugatory. This necessarily requires some preliminary assessment of the strength of the wife’s appeal from the substantive property orders and an appreciation of the order made by the Federal Magistrate on 26 November 2009.
The grounds of appeal in relation to the refusal to grant a stay are rather curious. They include a complaint that the Federal Magistrate should have refused to hear the second stay application and instead given directions to lodge an appeal against his earlier refusal to grant a stay.
In view of the history of the matter, as known by the Federal Magistrate and the case as presented to him, the Federal Magistrate was entitled to refuse, for a second time, to stay the orders and made appropriate orders on 1 February 2010. I would not allow the appeal.
It is a different question whether the orders should be stayed in view of the appeal from the orders of Bell J and the appeal from the substantive orders of the Federal Magistrate.
As observed, the matter to be heard by the Full Court will now include the appeal from the orders of Bell J in addition to the appeal against the final property orders made by Howard FM. It is obvious that should either of those appeals be successful the matter will need to be reheard and the orders of the Federal Magistrate may not stand.
Whilst taking into account the failure of the wife to appear before the Federal Magistrate, to refuse a stay of the orders would mean that the property would be sold, being the house which the wife has lived for many years. Should that event take place there would be no other remedy. In those circumstances, emphasising the unusual history of this matter, although the appeal from the refusal of the stay should be dismissed, orders for a stay should be made until the hearing and determination of the appeals.
Costs
At the conclusion of the appeal hearing, submissions were heard as to the costs of this appeal.
Although Ms Fajardo explained that she was appearing on an “almost pro bono” basis for the wife, it is appropriate that each party should bear their own costs in relation to the appeal.
The costs related to the application to file an appeal out of time from the orders of Bell J should be reserved to the Full Court.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 8 April 2010
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