Grange and Grange and Ors (No. 2)

[2018] FamCA 241

FAMILY COURT OF AUSTRALIA

GRANGE & GRANGE AND ORS (NO. 2) [2018] FamCA 241

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – where the husband and second respondent’s application to appear by telephone is not opposed and is granted – where the husband seeks a stay of orders made 30 January 2018 pending determination of his appeal – where the orders made 30 January 2018 do not cast any obligation upon the husband but instead require the third respondent to pay monies into the wife’s solicitor’s trust account – where there is no appeal from the subject orders filed by the third respondent – where there is no evidence that the third respondent supports the application for a stay – where the third respondent chose not to participate in the proceedings – where the husband stands to receive a payment in excess of $500,000 upon compliance of the orders made 30 January 2018 by the third respondent – where it is difficult to discern merit in the husband’s grounds of appeal as contained in his Notice of Appeal – where it is not demonstrated that the husband’s appeal from the subject orders, if successful, will be rendered nugatory by the failure to grant a stay of those orders – the husband’s application for a stay is dismissed – the husband is ordered to pay the wife’s costs of and incidental to the application fixed in the sum of $1,632.81

Family Law Act 1975 (Cth) s 117(2)
Family Law Rules 2004 (Cth) r 22.11

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Kelly and Kelly (1981) FLC 91-007; [1980] FamCA 88
Molier and Van Wyk (No. 2) (1981) FLC 91-001; [1981] FamCA 5
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT: Mr Grange

FIRST RESPONDENT: Ms Grange

SECOND RESPONDENT: Ms A Grange

THIRD RESPONDENT: Ms B Grange

FILE NUMBER: ROC 580 of 2011

DATE DELIVERED: 18 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 April 2018

REPRESENTATION

THE APPLICANT: In person via telephone

COUNSEL FOR THE FIRST RESPONDENT: Mr Shoebridge

SOLICITOR FOR THE FIRST RESPONDENT: Madden Solicitors

THE SECOND RESPONDENT: In person via telephone

THE THIRD RESPONDENT: No appearance

Orders

IT IS ORDERED THAT:

1. The applicant, Mr Grange and the second respondent have leave to appear by electronic communication on the hearing of this application.

2. The applicant’s Application in a Case filed on 28 March 2018 is dismissed.

3. The applicant, Mr Grange pay the costs of the first respondent, Ms Grange fixed in the sum of $1,632.81 within thirty (30) days of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange and Ors (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 580 of 2011

Mr Grange

Applicant

And

Ms Grange

First Respondent

And

Ms A Grange

Second Respondent

And

Ms B Grange

Third Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is the application of Mr Grange (“the husband”) for the grant of a stay of orders made on 30 January 2018 pending the determination of the husband’s appeal from those orders. 

2. The husband’s application is opposed by Ms Grange (“the wife”).  The application is supported by Ms A Grange (“the second respondent”).  The husband and the second respondent appeared by telephone on the application, the Court having granted the husband’s request to attend the hearing of the application by electronic communication. 

3. On 30 January 2018 I delivered reasons for judgment and made final orders in these proceedings.  Relevantly for present purposes, I declared that the third respondent Ms B Grange (“the third respondent”), the husband’s mother, had received an amount of $1,024,600 as bare trustee for the husband and the wife.  A consequential order was made that the third respondent pay that amount into the trust account of the solicitors for the wife within 30 days of the date of those orders, that is by 1 March 2018. 

4. Further orders were made in terms of the beneficial entitlement of each of the husband and the wife in the funds so paid into the trust account.  That is, by way of property settlement between the husband and the wife, orders were made for each of the husband and the wife to receive the beneficial entitlement as to one half each of the sum paid into the trust account.  Again, relevant for present purposes to this application, the orders made did not include any orders obliging the husband to transfer any property to the wife, nor to pay the wife any money. 

5. The declaration and orders were as follows:

   (1)Pursuant to s 78(1) of the Family Law Act 1975 (Cth) (“the Act”) it is declared that the amount of $1,024,600 of the total amount of $1,129,060 received by the Third Respondent on or about 8 November 2008 in respect of the sale of Sales Permit No. …2 was received by the Third Respondent as bare trustee for [Mr Grange] and [Ms Grange].

   (2)Pursuant to s 78(2) of the Act it is ordered that the Third Respondent pay to the trust account of the solicitors for the wife, Madden Solicitors, within thirty (30) days of the date of these Orders the amount of $1,024,600 to be held by those solicitors on trust for [Mr Grange] and [Ms Grange] (“the trust fund”).

   (3)That as and by way of property settlement pursuant to s 79 of the Act:

   (a)The wife is beneficially entitled to $512,300 of the trust fund and is entitled to retain that amount to the exclusion of the husband;

   (b)The husband is beneficially entitled to $512,300 of the trust fund and is entitled to retain that amount to the exclusion of the wife;

   (c)Each party shall be solely entitled to the exclusion of the other to all property and chattels in the possession of such party as at this date including any jewellery, furniture and furnishings;

   (d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

   (e)That the injunction granted by Order of this Court on 18 March 2013 be varied only for the purpose of the Third Respondent complying with the declaration in paragraph 1 and the consequential order in paragraph 2 and pending such compliance the injunction remain in full force and effect.

   (4)Each party shall do all acts and things reasonably necessary to give

   effect to these Orders.

   (5)If any party refuses or neglects to sign or execute and return any document necessary to give effect to these Orders within seven (7) days of a written request to do so then a Registrar of the Brisbane Registry of the Family Court of Australia is appointed pursuant to s 106A of the Act to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of the requesting party or a solicitor on behalf of the requesting party as to the said neglect or refusal.

6. On 27 February 2018 the husband filed a Notice of Appeal from the orders made on 30 January 2018.  As best as I can tell from his Notice of Appeal, the husband seeks that all orders made on 30 January 2018 be set aside.  It is unclear from the Notice of Appeal whether the husband seeks to have the Full Court re-exercise the discretion, or whether he seeks to have the proceedings remitted for a further trial.  What seems clear enough, though, is that the husband challenges the whole of the orders and seeks that they all be set aside.  That is, there is not any separate or alternate challenge directed to the apportionment of the trust fund as ordered as between the husband and the wife. 

7. It is centrally important to note on this application, as counsel for the wife emphasised, that there is no appeal from the subject orders filed by the third respondent.  Nor does it seem that the third respondent wishes to be heard on this application.  Notably it was on 28 March 2018, and thus well after the 30 day period provided in the orders which expired on 1 March 2018, that the husband filed this application.  That is, this application for a stay of the orders was first filed well after the time for performance by the third respondent of the obligation to pay the sum ordered had elapsed.

Applicable principles

1. Rule 22.11 of the Family Law Rules 2004 (Cth) (“the Rules”) provides for stay applications. Subrules (1) and (2) of that rule are in the following terms:

   (1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

   (2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

2. In Kelly and Kelly (1981) FLC 91-007, Justice Fogarty adopted and refined the principles articulated in two Victorian cases in the following passages at pages 76,104 and 76,105:

   In Klinker Knitting Mills Pty. Ltd. v. Union Fire Insurance and General Insurance Co. Ltd. (1937) V.L.R. 142, an application was made under the equivalent rules of the Victorian Supreme Court before Sir Charles Lowe. His Honour, in a typically brief judgment, said this:

   “There is the general principle laid down in the rule that ‘an appeal shall not operate as a stay of execution or of proceedings under the decision appealed from’, and then one gets an exception ‘except so far as the Court or a Judge may so order’. I think that the decisions cited show that under the exception there is a general discretion reposed in the Court. But in the exercise of that discretion one has to bear in mind that the rule is that there shall be no stay. The language used suggests that there must be some exceptional circumstances shown to take the case out of the general rule, and I think that is the proper construction of the rule. If no facts are shown on which the Court can base its discretion then apart from consent there will be no stay. The facts must justify the stay.”

   In a later judgment before Adam J. in the Supreme Court of Victoria, the matter was further considered in Scarborough v. Lews Junction Stores Pty. Ltd. (1963) V.R. 129. His Honour adopted the same approach where he said, at p. 130:

   “The rule says that an appeal does not operate as a stay of execution. That is so, and an application for a stay of proceedings is not granted as of course. There must be special circumstances existing to justify an order staying the execution of the judgment — some special circumstances which must be relevant to the purpose for which the stay is granted. Such circumstances would exist where a successful appellant would be deprived of the fruits of his appeal if a stay of execution were not granted. It has been stated that the applicant for a stay of execution should show that he will ‘probably’ not be able to recover from the other party the amount of judgment which he has been compelled to pay under execution, in order to satisfy the court that a stay should be granted. I do not think that the word ‘probably’ has any particular merit. The test, I think, is, whether there is a real risk that the appeal would prove abortive if the applicant were not granted a stay.”

   That latter case I think demonstrates what is relatively obvious, namely that a stay is not granted as of course and that appropriate (or if one likes the term “special”) circumstances must be shown. In that particular case, what was argued was that there was a real risk that if the appeal was successful it would be abortive if no stay was granted and the judgment has to be read in that light, that is the statement of his Honour in relation to that was not intended to be an exhaustive statement of the application of the rule, but a particular instance of its application in the particular case.

   Regulation 120(8) restates the general position that an appeal does not as such operate as a stay but grants to a Judge of the Court a discretion to grant a stay in an appropriate case. Clearly, there must be circumstances shown which would justify the exercise of that discretion. It is, I think, unhelpful to attempt to circumscribe the exercise of that discretion by particular phrases or by reference to particular categories. Each case must be looked at in the light of its own circumstances against the background of that general approach, and a decision made in each case as to whether a stay is proper in the light of the words of the regulations considered against the background of the decided cases. That the discretion should be wide and untrammelled by reference to particular categories is particularly important under the Family Law Act. Confining oneself to property orders, experience shows that the scope and impact of orders under sec. 78 and sec. 79 of the Family Law Act can vary considerably and the relevance of an application for a stay would vary markedly. For example, the ordinary type of order encountered frequently in this jurisdiction is an order for the sale of the only asset of the parties, namely the matrimonial home, which may be occupied by one of them and perhaps the children of the marriage. Ordinarily, one would anticipate that it would be proper to grant a stay in respect of such an order because it may prove impossible or impractical to restore the previously existing situation if the appeal were successful but the sale had been carried through in the meantime. Numerous other instances come to mind.

   (Emphasis added)

3. In Molier and Van Wyk (No. 2) (1981) FLC 91-001, Justice Elliot stated at 76,071:

   It is the general rule that the courts do not “make a practice of depriving a successful litigant of the fruits of his litigation and locking up funds to which prima facie he is entitled” pending an appeal (The Annot Lyle (1886) 11 P.D. at p. 116).

4. In Trahn & Long (No. 2) [2008] FamCAFC 194, a Full Court comprising Justices Warnick, Boland and Dessau stated at [37] and [38]:

   In determining that the father’s stay appeal should be dismissed we had regard to the principles which the trial Judge was obliged to apply when determining such an application, and considered whether or not his Honour had correctly applied the relevant principles.

   These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [1986] HCA 13; (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681; Clemett and Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:

   ·the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·the person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to ground a stay;

   ·the bona fides of the applicant;

   ·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;

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

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   …

   ·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

   …

5. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, a Full Court comprising the then Chief Justice Bryant, Justices Boland and Crisford made similar observations at [17] and [18] as follows:

   This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King [1936] HCA 40; (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716).

   The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited[No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

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

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the bona fides of the applicant;

   ·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;

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

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   …

   ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   …

Onus of proof

1. At the outset of the hearing of this application, I set out for the husband the relevant principles emanating from the authorities to which I have just referred, and requested that he address those principles in his oral submissions.

2. In terms of the onus of proof, as it seems to me it is of critical significance on this application by the husband that not only has the third respondent not appealed the subject orders, but there is no evidence whatsoever that the third respondent actually supports the application for a stay, or her attitude otherwise in relation to the application. 

3. Given the terms of the orders made on 30 January 2018, it is the third respondent who is to be legitimately viewed (in comparison to the applicant husband) as having a particular right or interest affected by the subject orders made, as it is she who is obliged by the orders to pay the sum of money ordered.  No evidence whatsoever is forthcoming from the third respondent addressing the stay application, or any reasons for her views in relation to it. 

1. In this respect submissions were made on the application by both the husband and the second respondent as to what they describe as the “catastrophic” effect, if the orders are enforced and carried into effect.  As was pointed out to them in the course of the argument, there is absolutely no evidence before the Court that that is so.  For example, it is unknown whether the third respondent actually retains the substantial funds in bank accounts or the like; there is no evidence of her asset or financial position generally.

2. In my judgment this is significant to the exercise of discretion in this case given the presumptions that, first, the wife is entitled to the fruits of the judgment, and secondly, the wife is entitled to presume the correctness of the judgment under appeal.  As was noted in argument, the husband’s appeal will not likely be heard until next year.

3. As regards his own personal position the husband does not by evidence demonstrate how it could be to his personal benefit or advantage for a stay of the subject orders to be granted, given that the effect of these orders see him receiving a payment in excess of $500,000. 

Bona fides

1. In terms of the bone fides of the applicant I accept that the husband is bona fide in bringing the application.  That is, I do not as a discretionary consideration determine that the application lacks bona fides.

Conditions

1. There was no argument addressed by the husband as to the stay being granted on conditions.  That is, it was not suggested that the wife would receive any payment towards the ordered obligation as a condition of the grant of the stay, as but one example.

Merits of appeal

1. In terms of some preliminary assessment of the merits of the appeal, Mr Shoebridge counsel for the wife emphasised that it was difficult to discern any such merit from the grounds of appeal contained in the husband’s Notice of Appeal filed on 27 February 2018.

2. The stated grounds of appeal are as follows:

   1.Joinder made and rejected on inconsistent standards resulting in catastrophe.

   2.Double Jeopardy and no compensation.

   3.Natural gender phenomena prejudice.

   4.Recusal application treated with contempt.

   5.Argumentum Ad Absurdum mistrial directive treated with contempt.

   6.No fair or equitable outcome.

   7.Time elapsed between hearing and Judgment – 2 years, many issues forgotten/prejudiced

   8.Massive over turning status quo order

   9.Massive overturning order disjointed to; fact, evidence, motive, reasons for judgment

   10.Massive over turning Order not consistant to all other findings.

   11.Costs no considered

   12.Maintenance not considered facts and circumstances not considered or forgotten

   (Errors and omissions as per original)

3. It must be accepted that the husband represents himself in these proceedings and in the appeal proceedings, and he has no relevant legal experience or qualifications.  However, it must also be observed that, self-evidently, his stated grounds of appeal are, as it seems to me, not proper grounds of appeal in that there is no articulation, by way of particulars, of the specific errors of fact or law said to have been made.  That is, it is difficult to assess merit in circumstances where the grounds of appeal as identified are as stated.  It may be that the husband can or will amend his grounds of appeal in a meaningful way, and it may be that when he files a Summary of Argument for his appeal there will be better elucidation of the errors for which he contends.

4. In terms of a preliminary assessment, I would not conclude that the appeal is hopeless, but simply observe that in circumstances where the husband bears the onus on this application, he does not establish with any great force that his appeal has merit.

The risk of the appeal being rendered nugatory

1. In terms of weighing any risk of the husband’s appeal being rendered nugatory if a stay is not granted, as it seems to me the nature of the orders made render the opposite conclusion.  That is, it is not shown by the husband that his appeal from the subject orders, if successful, will be rendered nugatory from his perspective by the failure to grant a stay of those orders.  I repeat the orders do not cast any obligation upon the husband to transfer any property or to pay any money.  There is no appeal by the third respondent who is the person obliged to pay money under the terms of the orders.  This is not a case where the applicant for the stay is at risk of non-recovery of funds paid or property transferred pursuant to orders if his appeal from those orders succeeds.

2. In any event, there is no evidence provided in the husband’s case that, even if the appeal were to succeed, that there would not be the availability of the third respondent seeking recovery of any funds paid to the wife as a result of a successful appeal by the husband.  That, in fact, is an interest or right of the third respondent.  From the point of view of this applicant, the husband, he secures the advantage of the subject orders of receiving a sum in excess of $500,000; whilst ever those orders are stayed, he does not receive that benefit. 

3. As it seems to me, to the extent that it can be identified in his grounds of appeal that the husband seeks to agitate the question of spousal maintenance on the appeal or by way of re-hearing, that aspect of the appeal is unaffected by the staying or not of the subject orders.  That is, it is still open to the husband to agitate error in respect of any purported spousal maintenance claim at trial, irrespective of a stay being granted or not of the subject property orders made.

Conclusion

1. For all of these reasons, in my judgment the overwhelming preponderance of relevant considerations to the discretion operates in favour of refusing the husband’s application for a stay of the subject orders.  The application will be dismissed.

Costs

1. The wife seeks her costs of resisting the application. Handed up to me in the course of argument (and which will be marked Exhibit 1 on this application) is a schedule of the wife’s costs in respect of this application totalling $1,632.81, by reference to relevant scale items. The Rules make provision for an order for costs being in a fixed sum, rather than an order being made for an assessment, and it is obviously desirable to fix costs and avoid the parties in an assessment of costs and the time and inconvenience attending that, where it is possible to do so.

2. As to whether an order should be made, as it seems to me the financial circumstances of each of the parties to the proceedings does not preclude in this case the making of the order sought.  Under the terms of the subject orders the husband will have the benefit of a payment in excess of $500,000 and clearly would have the capacity to meet the costs order sought.  This is aside from the observations recorded in my reasons for judgment delivered on 30 January 2018 as to the husband’s financial position albeit against the background of findings concerning his failure to make full and frank disclosure in the proceedings.

3. The fact is that the husband has been wholly unsuccessful on this application and it has necessitated the wife incurring expense. 

4. The subject proceedings involve a financial case and financial consideration. As it seems to me there are justifying circumstances within the meaning of s 117(2) of the Family Law Act 1975 (Cth) for an order for costs to be made and by reference to the factors to which I have referred, I consider an order in the fixed sum as sought by the wife is in a reasonable amount and is just within the meaning of subsection (2) of s 117.

5. For these reasons I make the following orders:

   1.The applicant, Mr Grange and the second respondent have leave to appear by electronic communication on the hearing of this application.

   2.The applicant’s Application in a Case filed on 28 March 2018 is dismissed.

   3.The applicant, Mr Grange pay the costs of the first respondent, Ms Grange fixed in the sum of $1,632.81 within thirty (30) days of the date of these orders.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 18 April 2018.

Associate:

Date:  19 April 2018