FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haines & Rader (No 7) [2023] FedCFamC1F 407
File number: SYC 1641 of 2019 Judgment of: BRASCH J Date of judgment: 23 May 2023 Catchwords: FAMILY LAW – STAY APPLICATION – Where the husband filed a Notice of Appeal against an order dismissing his application for leave to issue subpoena and an order dismissing his application pursuant to s 79A(1)(a) of the Family Law Act1975 (Cth)– Where the husband seeks a stay of orders subject to appeal – Where the husband also seeks a stay of orders not subject to appeal including the final orders made on 21 December 2022 and enforcement orders made on 7 March 2023, the latter of which has been complied with – Where the wife opposes the stay application – Where the husband has not established on balance that he can keep the home - Where the husband puts on no evidence when the appeal might be heard – Where the husband does not put the Notice of Appeal into evidence - Where a partial stay of the final orders is granted on conditions. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 79, 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.06, 5.07, 5.08 and 10.13(1)(a)
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685
Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300; [1993] HCA 6
B & the Estate of Coburn and Ors [2020] FamCA 548
Blair v Curran (1939) 62 CLR 464
Brennan & Shaw (Stay Appeal) [2008] FamCAFC 138
Clemett & Clemett (1981) FLC 91-013; [1980] FamCA 90
Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; [1986] HCA 13 citing The Annot Lyle (1886) 11 PD 114
Friscioni & Friscioni [2009] FamCAFC 43
Haines & Rader (No 2) [2022] FedCFamC1F 685
Haines & Rader (No 3) [2022] FedCFamC1F 1007
Haines & Rader (No 4) [2022] FedCFamC1F 1008
Haines & Rader (No 5) [2023] FedCFamC1F 132
Haines & Rader (No 6) [2023] FedCFamC1F 255
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Investments Pty Limited (1986) 161 CLR 681; [1986] HCA 84
Jackson v Goldsmith (1958) 81 CLR 446 at 466.
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; [1986] HCA 84
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329; [1998] HCATrans 263
Kellner & Kellner [2019] FamCA 139
Rankin & Rankin (No 2) [2016] FamCA 512
Rader & Rader [2022] FedCFamC1F 375
State Central Authority & Ustinov (No. 2) [2008] FamCA 368
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220; [1986] HCA 13; (1986) 160 CLR 220
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- AGLC
- Haines & Rader (No 7) [2023] FedCFamC1F 407
- Case
- [2023] FedCFamC1F 407
- Decision Date
CaseChat Overview and Summary
In the case of Haines & Rader, the husband sought a stay of the orders made by the Family Court on 21 December 2022 and 7 March 2023, pending the outcome of his appeal. The husband had previously not participated in the substantive proceedings and had filed multiple unsuccessful applications to set aside the orders. He argued that his tender bundle, which was not before the court at trial, contradicted the wife's allegations and that the wife might have secured employment after the trial closed, based on hearsay evidence. The court dismissed his application to set aside the orders, leading to the husband's appeal of the dismissal and the refusal to grant leave to issue a subpoena.
The legal issues before the court included whether the husband had established a basis for the stay, and whether his application was made in good faith. The court considered the principle that a litigant is entitled to the fruits of their litigation pending the determination of an appeal, and that a person who has obtained a judgment is entitled to presume the judgment is correct. The husband's concession that the wife would suffer hardship if the stay were granted was also considered.
The court found that the husband had not demonstrated any special or exceptional circumstances to justify a stay. The husband's multiple attempts to delay the proceedings and his reliance on irrelevant material and mischievous arguments were noted. The court concluded that the husband's application was not made in good faith and that the wife was entitled to the benefit of the judgment. The husband's appeal of the dismissal of his application to set aside the orders and the refusal to grant leave to issue a subpoena was dismissed, and the stay application was refused.
The court ordered that the stay application be dismissed, and that the husband pay the wife's costs of the stay application, to be taxed on an indemnity basis if not agreed. The court further ordered that the husband pay the wife's costs of the appeal, to be taxed on an indemnity basis if not agreed.
The legal issues before the court included whether the husband had established a basis for the stay, and whether his application was made in good faith. The court considered the principle that a litigant is entitled to the fruits of their litigation pending the determination of an appeal, and that a person who has obtained a judgment is entitled to presume the judgment is correct. The husband's concession that the wife would suffer hardship if the stay were granted was also considered.
The court found that the husband had not demonstrated any special or exceptional circumstances to justify a stay. The husband's multiple attempts to delay the proceedings and his reliance on irrelevant material and mischievous arguments were noted. The court concluded that the husband's application was not made in good faith and that the wife was entitled to the benefit of the judgment. The husband's appeal of the dismissal of his application to set aside the orders and the refusal to grant leave to issue a subpoena was dismissed, and the stay application was refused.
The court ordered that the stay application be dismissed, and that the husband pay the wife's costs of the stay application, to be taxed on an indemnity basis if not agreed. The court further ordered that the husband pay the wife's costs of the appeal, to be taxed on an indemnity basis if not agreed.
Orders
Orders of the court
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Background
Background to the litigation
These Reasons therefore concern the husband’s application (“the stay application”) seeking a stay of the orders made 21 December 2022 and 7 March 2023, pending the outcome of his appeal.BACKGROUND On 21 December 2022, I handed down Reasons and Orders in the substantive s 79 proceedings (Haines & Rader (No 5)). The husband chose not to attend the s 79 trial. Nor did he take up the opportunity to make submissions after the Court provided him with the transcript from the trial. The husband has not appealed the substantive s 79 orders made on 21 December 2022. Instead, he has engaged in a rather elaborate course of litigation to apply to set aside my dismissal of his application by email to adjourn the trial, and when that failed, applied to set aside the s 79 orders pursuant to s 79A of the Act. That s 79A application was filed on 13 February 2023. In that s 79A application the husband deposed to two grounds under s 79A(1). First, he argued that his tender bundle contradicted things the wife alleged, particularly about initial contributions. The problem with that was his tender bundle was not before me at trial, as his counsel rightly accepted. Further, the husband did not appear at the s 79 trial to prosecute his case. Second, he relied on rank hearsay (as his counsel also rightly accepted) to agitate a ground that the wife might have secured employment after the evidence in the trial closed. Oral submissions were made that the wife was not truthful about various things, especially with respect initial contributions. However, the foundation for that submission was the tender bundle which was not before me at the s 79 trial. It was also submitted that the wife had failed in her duty of disclosure but that rested on the rank hearsay about the wife having a possible job. I dismissed that s 79A application on 7 March 2023. As the husband’s counsel appropriately conceded, if the s 79A application was dismissed then the leave sought to issue subpoena also fell away. Leave was not granted. The s 79A application is the second time the husband has applied to set aside orders, at least since the matter has been before me. Haines & Rader(No 3) concerned the husband’s earlier application pursuant to 10.13 of the Rules to set aside orders I made, inter alia, dismissing the husband’s “application by email” to adjourn the trial. I dismissed the r 10.13 application on 7 March 2023. The husband now appeals the dismissal of his s 79A application. He also appeals the refusal to grant his application for leave to issue subpoena. To be clear, the husband only appeals these two specific orders. Yet, he seeks a stay of all of the 21 December 2022 orders (the s 79 orders) and all of the 7 March 2023 orders, even though many have now been complied with. The husband’s logic appears to be that if the Appeal Division upholds his appeal, then his s 79A application will be re-heard. If he is successful at that re-hearing of the s 79A application, then the s 79 orders will be set aside and he may be granted leave to issue the subpoena. Then, the s 79 dispute can be re-litigated; he proposes a five day trial.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Whilst the onus to establish the basis for the stay is on the applicant for the stay, it is not necessary that he demonstrate any “special” or “exceptional” circumstances. A person who has obtained a judgment is entitled to the benefit of that judgment; and, A person who has obtained a judgment is entitled to presume the judgment is correct I will consider these two allied considerations together. It has long been a settled principle of the law that a litigant is entitled to the “fruits of his litigation pending the determination of any appeal”(Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220 at 222 citing The Annot Lyle (1886) 11 PD 114 at 116). As the wife’s solicitor submitted, the wife is entitled to the benefit of the judgment, and entitled to presume the judgment and orders made are correct. The husband accepted that to be so in his Case Outline at paragraph 82. If I stay the orders sought by the husband (being all of the orders of 21 December 2022 and some of 7 March 2023 orders) the wife is left with a further period of time where the fruits of the litigation will be placed beyond her grasp. The husband conceded in his Outline of Case filed 2 March 2023 at paragraph 98 that the wife would suffer hardship if the stays were granted. Both of these factors favour the wife’s position. The mere filing of an appeal is insufficient to grant a stay Nothing turns on this. The husband filed an Application in a Proceeding seeking a stay of orders pending appeal, even though he filed his application to stay before he filed three appeals. Further, he did not identify which of the three appeals he moved upon. I will not take a technical approach to this, which would be contrary to the overarching principles in the Rules to efficiently deal with matters. The bona fides of the application I accept that the husband is fervent in his desire to get to a point where he can overturn the s 79 orders, albeit by the circuitous path he charts. I also accept the husband is doing all he can to delay the family law proceedings in the hope he is successful in his District Court proceedings, and if so, will have proceeds to buy the wife out of the matrimonial home, and/or with an unspecified loan. The husband has twice applied to delay the s 79 proceedings pending the outcome of his District Court proceedings and those applications have been dismissed. In those circumstances, it is hard to see that the husband is doing anything other than trying to achieve the same outcome of delay, by new means. In the meantime, the wife submitted the husband lacked bona fides: The husbands bona fides in filing the application seeking a stay should be questioned given that he relies on irrelevant material in his affidavit, continues to press mischievous arguments in relation to his tender bundle and the suppression of evidence. Further, the husband has repeatedly filed irrelevant material from previous affidavits, filed flawed applications on flimsy evidence and groundless claims all of which have formed a theme throughout these proceedings. See [Haines & Rader] (No 6) [2023] FedCFamC1F 255 at 60- 67 (Wife’s Outline of Case filed 20 April 2023, page 6)
Ratio Decidendi
Legal Principle Established
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