Geer and Bilson - [2015] FamCAFC 250

FAMILY COURT OF AUSTRALIA

GEER & BILSON

[2015] FamCAFC 250

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks to expedite an appeal against final property orders – Whether a case should be given priority to the detriment of other cases – Where the wife opposes the application for expedition – Where the application is dismissed.

Family Law Act 1975 (Cth) s 75(2)

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Geer

RESPONDENT:

Ms Bilson

FILE NUMBER:

SYC 6220

2013

APPEAL NUMBER:

172

2015

DATE DELIVERED:

14 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

14 December 2015

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

17 September 2015

LOWER COURT MNC:

[2015] FCCA 2511

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Applicant in person

COUNSEL FOR THE RESPONDENT:

Ms Shearman

SOLICITOR FOR THE RESPONDENT:

Meehans Solicitors

Orders

(1)The Application in an Appeal filed on 9 November 2015 is dismissed.
(2)Parties are to bear their own costs of the Application in an Appeal filed 9 November 2015.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 172 of 2015
File Number: SYC 6220 of 2013

MR GEER

Appellant

And

MS BILSON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed 9 November 2015, Mr Geer (“the husband”) seeks an order for expedited hearing of his appeal.
The Notice of Appeal was filed on 13 October 2015 and an Amended Notice of Appeal on 9 November 2015. He appeals against property orders made by Judge Brewster on 17 November 2015 that provided for Ms Bilson (“the wife”) to pay to the husband $90 000. At the time of the payment, the husband was to furnish the wife with a withdrawal of caveat with respect to a caveat lodged by him over the property in Suburb M in western Sydney (“Suburb M property”). A further order provided that if the wife was unwilling or unable to pay that amount, the parties were to sell the Suburb M property and to divide the net proceeds of sale between them so that the wife receives 75 per cent and the husband 25 per cent.
The application for expedition was opposed by the wife.
In order to understand the husband’s application, it is necessary to set out some background. The wife was aged 64 at the time of the hearing and the husband aged 63. They commenced to live together in August 2000 and married in 2004. They separated for about seven months in 2007 but reconciled. They finally separated on 21 December 2012.
At the time of the commencement of the relationship the wife owned a property in Suburb H in western Sydney (“Suburb H property”). This was sold in 2001. The net proceeds amounted to $290 000. The proceeds were used to buy another property in Suburb L in western Sydney, to renovate that property and to pay some general expenses. That property was sold for $340 000 in 2005. A block of land in Town T on the Mid North Coast was purchased in joint names for $255 000 and a house built on it (“Town T property”). It seems uncontroversial that at least a large part of the construction work was undertaken by the husband.
The Town T property was sold in 2010 for $430 000. The net proceeds were $362 000. Of this, $300 000 was used to purchase a property in Town H on the Central Coast (“Town H property”), $15 000 was spent on renovations, and further sums spent on motor vehicles and holidays. The Town H property was sold in 2013 for $339 000. The Suburb M property was then purchased for $280 000. The evidence did not disclose what had happened to the balance of the sale proceeds of the Town H property, and the trial judge speculated that it had been simply spent.
The trial judge found that the only significant property to be divided between the parties was the Suburb M property. The parties had motor vehicles, furniture and the like and some other assets, which were of such a value that the trial judge did not take them into the property pool to be divided. There seems to be no challenge to that approach.
The Suburb M property had been valued in May 2014 for $300 000. In oral evidence, the valuer accepted that property values had risen since then, but was not prepared to quantify the increase without undertaking a full valuation. He agreed that a sale in late 2014 of the property next door was a good indication of the value of the parties’ Suburb M property at that time. The sale price was $358 000. Somewhat reluctantly, but in the absence of any other evidence, the trial judge accepted that value.
The trial judge accepted that the wife made an additional contribution to the Suburb H property and carried out the majority of the housework. The husband’s primary contribution was found to be building the home at Town T. The evidence did not enable the trial judge to determine what may have been any increase in value in the property as a result of construction work undertaken by the husband.
The trial judge rejected the husband’s claim that the Town T property had been sold at an undervalue or that its sale had been a fast sale undertaken recklessly, negligently or wantonly by the wife. This led to the trial judge finding that the parties’ contribution to their property was 75 per cent to the wife and 25 per cent to the husband. After considering the section 75(2) factors, the trial judge thought no further adjustment was required.
Whilst there is no provision in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) (“the rules”) which deals with the criteria to be applied on an application for expedition, rule 12.10A of the rules, which deals with applications for expedition of trials, suggests some relevant considerations.
The application for expedition was filed some three weeks after the filing of the original Notice of Appeal, which is not a significant delay. The husband has not yet filed the draft index for the appeal books, which was due on 7 December 2015. He has not explained that delay, and that is a matter of some concern. Ordinarily, one would expect a person seeking expedition to be meticulous about compliance with the rules.
The wife asserts that there will be a prejudice to her, in that if the appeal comes on quickly there may be some difficulty in raising the funds in which to pay for it. There is no evidence to that effect, and I do not place any significant weight on it.
Although the Notice of Appeal is not ideally expressed, it having been prepared by the husband himself, it is sufficient to say that the appeal is not devoid of merit. The husband also seeks to adduce further evidence which he says will show that the Suburb M property was sold at an undervalue. Whether that evidence is admitted is, of course, a matter for the Full Court hearing the appeal.
There must be a consideration of the circumstances that would justify this appeal being given priority over other appeals awaiting determination.
The affidavit in support of the application consists almost entirely of complaints about the wife and does not deal with the present circumstances of the husband in any detail. The Amended Notice of Appeal, however, says that:
[An order for expedition is sought] as I have been living [at] No Fixed Address since 04/04/2013 … [and since] the $1000 caravan I have been living in is not fit for habitation.
In the course of submissions today, the husband explained that this meant that he was living on a road in a caravan which was valued at $1000. The husband has given no evidence of attempts to obtain alternative accommodation. He said this morning that he could afford to live in fixed accommodation, but that doing so would drive him mad.
The husband receives a disability support pension. He has given no evidence as to his health, either mental or physical, other than to what I have just referred.
It seems to be uncontroversial that the wife has, in fact, offered to pay the husband the sum of $90 000 in accordance with the order of Judge Brewster. The husband has refused to comply with the order to provide a withdrawal of caveat at the time of the payment. He says in submissions that this was because the wife has failed to agree with certain conditions that he wishes to impose upon providing the withdrawal of caveat. No such conditions are provided for by the orders.
If the husband wishes to preserve property pending the appeal, there are appropriate steps that he could take if the circumstances otherwise justify it. The position remains, however, that he could have received the $90 000 referred to in the judgment, but has taken steps such that he presently has not received it.
Ultimately, the task is to weigh the above factors to determine whether the urgency of this matter is such that it should proceed ahead of other appeals that are yet to be listed. On balance, I am not persuaded that it should. The Application in an Appeal filed on 9 November 2015 is dismissed.
The wife has applied for an order that the husband pay her the costs of this application on the grounds that the application was wholly unsuccessful, that she has been put to expense in defending the appeal, and the financial circumstances of the parties. She sought an order that if costs be ordered, they not be paid forthwith, but paid at the conclusion of the appeal.
It is most unusual for an application for expedition to be opposed. It is a matter that very much weighs in the discretion of the court, but one of the factors that the court takes into account are the other matters that are awaiting appeal dates. All appeals deserve to get on quickly. It is unfortunate that they do not. The failure of the application is not due to any lack of urgency in the present case, but rather simply that there are other matters of equal urgency that are entitled to come on for hearing in the ordinary course.
The evidence is that although the wife has apparently offered to pay the sum of $90 000, it is not unequivocally available to the husband upon the provision of the caveat. Taking all those matters into account, I am not satisfied there should be an order for costs, and the order will be that each party pay their own costs of the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 14 December 2015.

Associate:

Date: 10 March 2016