FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Whether the orders the subject of appeal are final or interlocutory and require leave to appeal – Leave to appeal required – Whether or not the primary judge had power to alter the time for compliance with final orders – Orders requiring the appellant to make a payment to the respondent and retain property – Where the appellant did not do so and applied for a stay of the operation of those orders – Whether relevant provisions of final orders were substantive or machinery/consequential – The orders did not grant the respondent a substantive right to the property on default – Whether a stay of the final orders operated nunc pro tunc or retrospectively from the date of filing a Notice of Appeal – No error in primary judge’s amendment of the final orders – Application for leave to appeal dismissed – Respondent to pay appellant’s costs of the appeal in fixed sum.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Goldsmith & Stinson (No 2) [2023] FedCFamC1A 25
Case
[2023] FedCFamC1A 25
Decision Date
CaseChat Overview and Summary
The wife, in this case, sought leave to appeal against the July 2022 orders made by the primary judge, which were the subject of her second appeal. The primary judge had amended the final order made on 23 July 2021, pursuant to a liberty to apply provision, by reducing the amount the husband was required to pay to the wife by $100,000 and extending the time for the husband to comply with the final order from 60 days to 14 days. The wife was unhappy with these amendments and sought leave to appeal against the July 2022 orders. The wife’s application for leave to appeal was dismissed by the court. The legal issue that the court was required to decide was whether the amendments to the final order made by the primary judge were substantive or machinery provisions. The wife argued that the amendments were substantive provisions that affected her rights under the final order, whereas the husband argued that they were machinery provisions that did not affect the substantive rights of the parties. The court found that the amendments were machinery provisions that did not affect the substantive rights of the parties. The court held that the power to amend a final order is limited to circumstances where the amendments affect machinery provisions rather than substantive provisions of an order. The court referred to the decisions of the Full Court in Molier & Van Wyk and Ravasini, in which the dichotomy between machinery and substantive provisions of orders was considered. The court found that the amendments sought by the husband were machinery provisions, as they did not affect the substantive rights of the parties. The court further held that the primary judge had correctly exercised her discretion to amend the final order. The court noted that the primary judge had considered the parties’ competing enforcement applications in the event that she was wrong in her determination that the amendments were machinery provisions. The court held that the primary judge had correctly dismissed the wife’s application for enforcement and ordered the wife to pay the husband’s costs of and incidental to his application. The final orders made by the primary judge were upheld, and the wife’s application for leave to appeal and any consequent appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
For the following reasons, we dismiss the wife’s application for leave to appeal.BACKGROUND These are the third appellate proceedings instituted by the wife. After she successfully appealed in 2019 from a final property order made by a judge of the (then) Federal Circuit Court of Australia (“the first appeal”), the proceedings were remitted for rehearing and then transferred to the (then) Family Court of Australia. The proceedings were re-heard by the primary judge and a final property order was made on 23 July 2021 (“the final order”). That order was the subject of a second appeal by the wife (“the second appeal”), which was dismissed by the Full Court of the Federal Circuit and Family Court of Australia on 30 June 2022. In July 2022, after the dismissal of the second appeal, the parties filed competing enforcement applications in relation to the final order, which were heard by the primary judge on 21 July 2022. Alternatively, the husband sought an extension of time to comply with the provisions of the final order pursuant to a “liberty to apply” provision. Her Honour made orders and delivered ex tempore reasons for judgment the following day, being 22 July 2022 (“July 2022 orders”). It is from those orders that the wife now seeks leave to appeal and/or to appeal. The final order required, inter alia, the husband and wife to transfer their joint interest in a farming property (“Property E”) to the husband and, contemporaneously therewith, the husband to refinance the mortgage secured by that property into his sole name and to pay to the wife the sum of $602,415 (paragraphs 17, 18 and 21). Those transactions were to occur within 60 days of the final order, namely, by 21 September 2021. In preparation for complying with the final order, the husband sold two investment properties and made arrangements to borrow the balance of the payment required to be made by him to the wife. However, on 20 August 2021, before the time for compliance with the final order, the wife instituted her second appeal but did not serve her Notice of Appeal on the husband until 1 September 2021. Rule 13.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) only requires that a copy of a Notice of Appeal be served within 14 days after it is filed. Nevertheless, there does not appear to have been any explanation why the wife, who is an officer of the court, waited 12 days before serving the husband in circumstances where she knew, or ought to have known, that time for compliance with his obligations under the final order (the subject of that second appeal) was running. On 7 September 2021, the husband sought the wife’s consent for a stay of part of the final order, including the paragraphs relating to the transfer of Property E to him and the payment by him to her, pending the outcome of her second appeal. The wife was in the process of instructing new lawyers and the husband’s indulgence was requested and sensibly granted. Accordingly, and possibly understandably, the husband took no further steps in relation to seeking a stay at that time.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
At the hearing of the competing applications on 21 July 2022, it was common ground that, if the primary judge amended the final order pursuant to the liberty to apply provision, as sought by the husband, both enforcement applications should be dismissed.The July 2022 orders and judgment Paragraph 1 of the July 2022 orders, which are the subject of this application for leave to appeal and any consequent appeal, provides:Pursuant to the liberty to apply provision in paragraph 27 of the Order made on 23 July 2021, paragraphs 17, 18 and 21 be amended such that the words “within 60 days of the date of this Order” be replaced with the words “within 14 days of the date of the Order made 22 July 2022” and that the sum of “$602,415” in paragraph 21 of the Order made on 23 July 2021 be replaced with the sum of “$502,415”.(Bold emphasis added) The primary judge otherwise considered, in the event that she was wrong in that determination, the parties’ competing enforcement applications. Her Honour said at [50]–[52]:50The final order included a substantive order providing for the husband to retain the farming properties. The final order also included time frames for compliance, and default provisions which are the “secondary orders made as a consequence of the substantive order, to give it operation and effect” and, as such, that part of the final order can be varied by way of enforcement.51I am persuaded that paragraphs 17, 18 and 21 should be enforced. As the time for compliance with paragraphs 17, 18 and 21 has passed, it will be necessary to include a time frame in aid of the enforcement of the obligations created by those provisions. As already indicated, I propose to provide 14 days subject to an indication from the parties that 14 days is not required and that seven is sufficient.52It follows, that the wife’s application for enforcement will be dismissed.(Footnotes omitted) Her Honour ordered the wife to pay the husband’s costs of and incidental to his application, fixed in the sum of $5,500. Her Honour correctly noted at [24] that the power to “amend, vary, alter or modify” a final order made pursuant to s 79 of the Family Law Act 1975 (Cth) (“Act”) is confined to circumstances coming within s 79A of the Act (which was not applicable in this case) or where the amendments affect machinery, rather than substantive, provisions of an order. At [26]–[28], her Honour referred to the decisions of the Full Court in Molier & Van Wyk (1980) FLC 90-911 (“Molier & Van Wyk”) and Ravasini & Ravasini (1983) FLC 91-312 (“Ravasini”), in which the dichotomy between machinery and substantive provisions of orders was considered. The husband submitted at first instance that the amendments sought by him were machinery provisions, whilst the wife submitted that the effect of the amendments would be to vary the substantive provisions of the final order, in that, once the default provisions were triggered (namely, after the expiration of 60 days of the date of the final order), substantive rights for her in Property D were created. She argued that the amendments sought by the husband, namely, to extend the time for him to comply with the final order (to within seven days of the date of the primary judge’s order on the parties’ competing enforcement applications), would affect her substantive rights because she had a current entitlement by virtue of paragraph 22 of the final order to acquire Property D from the husband for the sum specified.
Ratio Decidendi
Legal Principle Established
On 8 October 2021, prior to a decision on the stay application being handed down, the parties consented to an order (“stay order”) that “the operation of paragraphs 17, 18, 19, 21, 22, 23, and 24 of the Orders made by the [primary judge] on 23 July 2021 … be stayed pending the outcome of the Wife’s Appeal … / the wife’s discontinuing the appeal” (emphasis added) but requiring the husband to make a payment of $100,000 to the wife. The stay order provided that the payment was made by the husband and accepted by the wife on the basis that:…3.1The husband contends that the $100,000 is part payment of his obligation pursuant to clause 21 of the Orders, however the wife contends that she is entitled to [Property D], as a result of the husband’s non compliance [sic] with clause 21 of the Orders and the sum is treated as a part payment of property settlement to be credited against the husband’s liability to pay a sum to the wife pursuant to Order 21 of the Orders made by the [primary judge] on 23 July 2021 in the event that the stay of those orders is ended by the appeal being determined / discontinued; or3.2the sum is to be repaid by the wife to the husband in addition to the sum payable by the wife to the husband in the event that the wife is able to rely on Order 22 of the Orders made by the [primary judge] on 23 July 2021. To our minds, nothing turns on sub-paragraphs 3.1 and 3.2 of the stay order; it was a reservation by the parties of their respective positions and may more appropriately have been the subject of a notation to, rather than contained within, the stay order. However, it is the nature of the stay order which is relevant for the purposes of this application for leave to appeal and any consequent appeal. Paragraph 17 of the final order provided for the parties to transfer Property E to the husband. Paragraph 19 was a default provision requiring the sale of Property E in the event the husband did not refinance the mortgage as required by paragraph 18, namely, within 60 days (i.e. by 21 September 2021), and the net proceeds of sale to be paid to the husband. Paragraph 20 provided that, subject to paragraph 21, which required the husband to pay to the wife the sum of $602,415 also by 21 September 2021 (i.e. within 60 days), he was to retain the other farming properties (Property D and Property P). Paragraph 22 was also a default provision requiring the transfer of Property D to the wife in the event that the husband did not pay her the sum of $602,415 within 60 days, as required by paragraph 21, in which case she was to pay the sum of $447,585 to him within a further 60 days. Paragraph 23 required the husband to provide to the wife a right of carriageway through Property P, in the event that he was required to transfer Property D to her. Paragraph 24 was a further default provision in the event of the wife failing to pay the sum of $447,585 to the husband. Paragraph 27 reserved liberty to each party to apply, upon the giving of 14 days’ notice in writing, in relation to the implementation of the final order.