Haines & Rader (No 7)
[2023] FedCFamC1F 407
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
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 137 Date of hearing: 20 April 2023 Place: Sydney Counsel for the Applicant: Ms Rusiti Solicitor for the Applicant: Morson Law Solicitor for the Respondent: Dettman Phair Lawyers ORDERS
SYC 1641 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RADER
Applicant
AND: MS HAINES
Respondent
order made by:
BRASCH J
DATE OF ORDER:
23 MAY 2023
THE COURT ORDERS THAT:
1.The following orders will be stayed pending completion of the husband’s Appeal being NAA73/2023 filed 27 March 2023:
(a)Order 7.3 of the orders of 21 December 2022;
(b)Order 7.4(i) of the orders of 21 December 2022;
(c)Order 7.4(ii) of the orders of 21 December 2022, but not Orders 7.4(ii)(A), (B) and (D).
2.The stay of the Orders listed at Order 1 above only comes into effect on the condition that the husband makes the payments referred to in orders 7.4(ii)(A),(B) and (D) of the orders of 21 December 2022 within seven (7) days of the date of this order, being:
(a)Payment of $2,000 to S Pty Ltd;
(b)Payment of $10,522 to Organisation R; and
(c)The wife’s costs of and incidental to the application to set aside the 5 and 6 September 2022 Orders in the sum of $5,184.40.
3.In the event the husband pays the costs orders referred to in Order 2 above, then Orders 7.4 (ii) A, B and D of the 21 December 2022 order are varied to strike out the requirement for the husband to make those payments from his s 79 entitlement.
4.The wife, through her legal representatives, is to cause a copy of this Order to be served on the legal representatives (for the subpoena hearing) of S Pty Ltd and Organisation R as expeditiously as possible.
5.The wife, through her legal representatives, has liberty to ascertain from the legal representatives (for the subpoena hearing) of S Pty Ltd and Organisation R whether the costs have been paid and within the timeframe provided.
6.The continued operation of Order 1 is conditional upon the husband doing all such acts and things as may be required to prosecute his Notice of Appeal filed 27 March 2023 as expeditiously as possible, including compliance with all timeframes to complete all acts required for the Appeal hearing.
7.In the event the husband does not fulfil the condition of the stay set out in Order 6, the wife has liberty on 48 hours’ written notice to re-list the matter for consideration of the continuation or discharge of the stays against orders set out in Order 1 of these orders.
8.The proceeds of sale of the Suburb J property after the payments required by Order 7.1 of the 21 December 2022 order, and Orders 12(g), (h) and (i) and Order 14 of the 7 March 2023 order, are be retained on trust for the parties:
(a)In the trust account of WW Company, but in the event WW Company declines to accept the retention of the proceeds, then;
(b)In the Controlled Monies Account of the wife’s solicitor; and
(c)In either case, both the husband and wife are restrained from directing WW Company or the wife’s solicitors from distributing any of the controlled funds other than as required by orders of the Court.
9.The husband or wife, through their legal representatives, is at liberty to provide a copy of this Order to WW Company.
THE COURT NOTES THAT:
A.The effect of this Order is that the sale of the Suburb J property by the wife may proceed on the terms provided by the 21 December 2022 order, and updated by the 7 March 2023 orders.
B.The Orders being stayed, conditional on the husband fulfilling Order 2 and complying with Order 6 above, are those that would see a distribution to the parties of their s 79 entitlements pursuant to the orders of 21 December 2022.
C.Neither order 12(i) nor order 14 of the 7 March 2023 orders permit distributions to either party of their s 79 entitlements pursuant to the orders of 21 December 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
This is my seventh set of Reasons in this matter, which only came before me for a Case Management Hearing in August 2022.
These Reasons should be read in conjunction with my previous judgments:
(a)Haines & Rader (No 2) [2022] FedCFamC1F 685 (“Haines & Rader (No 2)”): this was delivered on 6 September 2022 and concerned the husband’s “application by email” to adjourn the trial, which I did not entertain;
(b)Haines & Rader (No 3) [2022] FedCFamC1F 1007 (“Haines & Rader (No 3)”): this was delivered on 20 December 2022 and concerned the husband’s application pursuant to r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to set aside orders I made with respect to some subpoena issued by the husband (see orders made 5 September 2022), but primarily, my order dismissing the husband’s “application by email” to adjourn the trial, along with orders wherein the transcript from the trial was provided to him and he was given the opportunity to make submissions (orders made 6 September 2022); I dismissed the application;
(c)Haines & Rader (No 4) [2022] FedCFamC1F 1008 (“Haines & Rader (No 4)”): this is the Order and Reasons in the substantive s 79 proceedings, delivered on 21 December 2022;
(d)Haines & Rader (No 5) [2023] FedCFamC1F 132 (“Haines & Rader (No 5)”): Orders were made on 7 March 2023 concerning:
(i)The wife’s application for enforcement of the substantive orders, primarily seeking a Warrant of Possession for the former matrimonial home, which the husband, contrary to orders, had neither vacated nor facilitated the orders for sale. I made orders for enforcement and for the wife to conduct the sale. Quite properly, the husband’s counsel said there was little she could say to the resist the enforcement if I was against the husband on the s 79A application;
(ii)The husband’s application to set aside the substantive 21 December 2022 orders pursuant to s 79A of the Family Law Act1975 (Cth) (“the Act”). I dismissed that application; and
(iii)The husband also sought to file some subpoena, but as his counsel appropriately accepted, if I dismissed the s 79A application (which I did), then the subpoena issue also fell away;
(e)Haines & Rader (No 6) [2023] FedCFamC1F 255 (“Haines & Rader (No 6)”): this concerned the wife’s application for costs arising out of the disposition of Haines & Rader (No 5) above. I delivered Orders on 6 April 2023 which provided for the husband to pay the wife’s costs in the sum of $21,921 (including GST) for the wife’s Application in a Proceeding filed 25 January 2023 (the enforcement application); and $17,503 (including GST) for her Response filed 27 February 2023 in relation to the husband’s Application in a Proceeding (the s 79A application).
This time, I had two applications before me, which were listed for hearing on 20 April 2023.
The first application was filed on 24 March 2023 by the husband, Mr Rader, born 1968 (“the husband”). He sought a stay of the orders dated 21 December 2022 (Haines & Rader (No 4)) and 7 March 2023 (Haines & Rader (No 5)), pending the outcome of an appeal filed on 27 March 2023. Whilst the husband sought a stay of the of the substantive s 79 orders made on 21 December 2022, he has not appealed those s 79 orders. Further, whilst he seeks a stay of all of the 7 March 2023 orders, he only appeals two specific orders made on that date – one about leave to issue subpoena and the other dismissing his s 79A application.
At the hearing, the husband’s counsel narrowed the orders sought to be stayed. I will set that out later.
The second application was filed on 30 March 2023 by the wife, Ms Haines, born 1970 (“the wife”). That application was to re-open her application that the husband be declared a vexatious litigant, by adding the husband’s applications made to Court since her application was filed.
With respect to the wife’s application, the parties agreed that it would be more appropriate to await the outcome of the husband’s appeal before determining this application. I made a Consent Order to that effect.
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.
This web of litigation is against a back drop where the husband has at least twice applied to have the s 79 proceedings adjourned to await the outcome of personal injury proceedings he and the parties’ daughter have against the wife in the New South Wales District Court.
Justice Austin in Rader & Rader [2022] FedCFamC1F 375 dismissed a previous application to stay the proceedings made by the husband pending the outcome of the District Court proceedings. I then again dismissed the husband’s application to stay these proceedings pending the outcome of the District Court proceedings in Haines & Rader (No 4) as the issue had been decided and I would not entertain it again (Blair v Curran (1939) 62 CLR 464 at 531; Jackson v Goldsmith (1958) 81 CLR 446 at 466).
The relevance of the District Court proceedings, at least to the husband, is that the damages he says he and the parties’ daughter will be awarded, in the yet to be heard State Court proceedings, will allow him to pay out the wife in these Family Law Act proceedings. Either those damages and/or a loan will allow him to keep the Suburb J property:
8.In the event of an adjustment of the final orders in my favour including an adjustment to both my and the Applicant’s superannuation interests, there are a number of avenues available to me by which I anticipate that I will be able to purchase the Applicant’s then share in the Property, including:
(a) In circumstances where there is also a redistribution of the pool which results in me retaining less superannuation and more of the Property, I expect to be able to obtain a loan which would allow me to purchase the Applicant’s adjusted share of the Property.
(b) My daughter and I are currently involved in District Court Proceedings against the Applicant, seeking damages […]. Those proceedings are being heard in [mid-2023]. I expect that the combined damages to be awarded to my daughter and me will be in an amount of up to $750,000, which will enable my children and me to purchase the Applicant’s share of the Property.
(Emphasis added)
(Husband’s Affidavit filed 24 March 2023, paragraph 8)
In the s 79 Reasons, I ordered the property be sold. In his s 79 trial affidavit, the husband accepted sale of the property was a possibility; see paragraph 74 of the husband’s affidavit filed 2 September 2022. As said, the husband was given the trial transcript and given the opportunity to file written submissions about any aspect of the s 79 trial, but he did not.
THE CURRENT APPLICATION
I now turn to the husband’s application which is before me. It is expressed in the following terms:
1.The Orders made on 21 December 2022 and the Orders made on 7 March 2023 be stayed pending determination of the husband’s Appeal to be filed by close of business on 24 March 2023.
(Application in a Proceeding filed 24 March 2023)
The husband filed his application to stay orders pending appeal before he had filed the appeal on 27 March 2023.
The husband in fact filed three Appeals on 27 March 2023.
It is not clear on the face of his stay application which of the three appeals is referable to his stay application.
Further, the husband did not put the relevant Notice of Appeal into evidence. It was not attached to his affidavit in support of the stay. Even after the mother’s solicitor made this submission at the hearing, the husband’s counsel did not seek to tender it in her submissions in reply. Obviously one on the principles is to consider the grounds and their prospects. That would require having the Notice of Appeal in evidence.
The wife’s solicitor helpfully advised that of the three appeals filed on 27 March 2023, one had been discontinued and one had been dismissed.
Despite the husband not putting the Notice of Appeal into evidence, I have sourced what appears to be the surviving Notice of Appeal. I formed the view at the stay hearing that if I dismissed the stay application for an inability to consider the grounds of appeal because the Notice of Appeal was not before me, then, the husband may file another stay application and affidavit, this time attaching the Notice. Mindful of the overarching principles in the Rules, I determined it was more efficient to hear the matter using the surviving Notice of Appeal that I had sourced.
The surviving Notice of Appeal identified the following Orders subject to appeal:
Order 1 of the Orders made on 7 March 2023, namely “That the leave sought by the husband to issue further subpoena is refused”.
Order 2 of the Orders made on 7 March 2023, namely “That Orders 1 to 5 contained in the Application in a Proceeding filed by the husband on 13 February 2023 is dismissed”.
(Notice of Appeal filed 27 March 2023 and Orders 1 and 2 of orders made on 7 March 2023)
The subject matter of Order 1 is clear on the face of the surviving Notice of Appeal. Order 2 relates to the dismissal of the husband’s s 79A application.
A narrowing of orders sought to be stayed
At the hearing on 20 April 2023, the husband’s legal representatives narrowed the application as set out below:
7 March 2023 Order
(a)Orders 1 and 2: The husband pressed for the stay of these orders, which are subject of appeal. An appeal is an entirely appropriate vehicle to attack an Order, but it is hard to see how a refusal or dismissal can be stayed:
Subpoena - leave
1.That the leave sought by the husband to issue further subpoena is refused.
Section 79A application
2.That Orders 1 to 5 contained in the Application in a Proceeding filed by the husband on 13 February 2023 is dismissed.
(b)Order 3: The husband continued to press for the stay of this order, being that the husband vacate the Suburb J property within 14 days of the 7 March 2023 Order. Time has passed. The husband has since vacated the property after a Warrant of Possession was executed. I asked the husband’s counsel how or why I would stay an order where the action required by the order had occurred. The husband’s counsel seemed to accept this dilemma, so made an oral application (without notice to the wife) whereby the husband could retake possession of the property. I determined that an oral application seeking something as substantive as retaking possession of the property would be grossly unfair to the wife; I must do justice between both parties. In any event, the husband continued to press the stay of Order 3 even though he had vacated the property;
(c)Orders 4 and 5: the stay was not pressed against these orders. They concerned the Warrant of Possession. As the Warrant had been executed, it was conceded there was no utility in staying these orders;
(d)Order 6: The husband continued to press the stay of Order 6, being the restraint from him entering the Suburb J property, notwithstanding Order 6 is not the subject of appeal and the husband has vacated the property. I indicated to the husband that this would more properly form an Application in a Proceeding as foreshadowed for Order 3 above;
(e)Orders 7-9 inclusive: were not pressed. Order 7 and 8 were essentially asset preservation orders. Order 9 required the husband to remove his belongings from the Suburb J property within 14 days of the 7 March order. Plainly, time has passed for Order 9;
(f)Order 10: The husband continued to press the stay of Order 10. This order only arises if the husband did not comply with Order 9, which the husband is not seeking to stay;
(g)Order 11–14 inclusive: the husband pressed for the stay of Orders 11 to 14, which concern the sale of the former matrimonial home and distribution of sale proceeds;
(h)Order 15: the husband sought this be stayed. This gave the wife liberty to apply in respect of the sale or implementation of these orders. The stay that is sought seems, respectfully, obtuse. It is a machinery provision which will live or die depending on whether I stay substantive orders such as selling the property. No submissions were made about this;
(i)Orders 16–19 inclusive: this concerned a process for making any costs submissions. Despite now seeking a stay of these orders, the husband’s counsel agreed to this process. Yet, the husband did not file any submissions. Haines & Rader (No 6) is the outcome of this process, which I delivered on 6 April 2023. Whilst these orders were pressed, no submissions were made about them.
Thus, stays were pressed against Orders 1, 2, 3, 6, 10, 11-14, 15, 16-19 of the 7 March 2023 orders, even though some of those orders had been executed, been determined, or the time for compliance had passed.
The husband also pressed a stay of the entirety of the substantive s 79 orders of 21 December 2022, save for the orders for paying costs to third parties and the wife.
The husband had not given the third parties any notice that he had sought a stay against the orders in which they had an interest. That was unhelpful on the part of the husband. To cure that problem, the husband’s counsel submitted the husband’s payment of those costs be a condition of the stay. The husband’s counsel conceded she could not cavil with the payment of the wife’s costs set out in the December Order.
The husband’s stay of the entire 21 December 2022 order is an oddity. Some of the orders have been complied with, such as the husband vacating the property. Others have been overtaken by the 7 March 2023 orders including the process of selling the property. Time has passed for other orders.
MATERIAL
The husband relied upon the following material for the stay application:
·Application in a Proceeding filed 24 March 2023;
·Affidavit of Mr Rader (the Husband) filed 24 March 2023;
The husband also filed an Outline of Case Document on 2 March 2023, which related to the stay of the Enforcement Application heard on 3 March 2023. Counsel sought to rely upon those submissions for this stay application. In addition, the husband’s counsel made oral submissions on 20 April 2023.
The husband also sought to rely upon an affidavit filed on 19 April 2023, being the day before the hearing. The filing of this affidavit did not comply with rr 5.06, 5.07 and 5.08 of the Rules and was not received into evidence.
Instead, Annexure F of that affidavit was tendered by counsel for the husband, over the objection by the wife. This was marked as Exhibit 1 in the hearing.
Given the nature of a stay application and mindful of the overarching principles, I did not require the wife to file an affidavit or Response. I took the same approach to the husband with respect to the wife’s application to re-open her vexatious litigant application.
The wife relied upon an Outline of Case Document filed 20 April 2023, and made oral submissions on 20 April 2023.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge to refer to every piece of evidence or argument presented during the trial in reaching a decision. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
LEGAL PRINCIPLES - STAYS PENDING APPEALS
The law applicable to the granting of a stay against orders was set out in both parties’ Case Outlines. The principles were agreed. The dispute pertained to how those principles applied to the facts and circumstances of this case.
The grant of a stay is “wholly discretionary and the circumstances that would justify an order for a stay depend on the circumstances of each case. The onus of establishing a proper basis for a stay is on the applicant for the stay” (Friscioni & Friscioni [2009] FamCAFC 43 at [54]).
The principles for granting astay pending appeal are well settled and the following quote from Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (Bryant CJ, Boland, Crisford JJ) is often cited in support:
18. 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] HCATrans 263; (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 list then goes on to consider parenting matters and are thus largely irrelevant here. Before me is a property matter, not parenting.
Yet, in so far as the arrangements for the children may be relevant, it is common ground that the enforcement has now taken place. The father and children have vacated the home. In his trial affidavit, the father contemplated the possibility of moving into a three bedroom apartment with the children should the Suburb J property be sold.
Other factors that are relevant are:
·Whether there is delay in bringing the application for a stay; and
·When the appeal will be heard and whether it can be dealt with promptly (State Central Authority & Ustinov (No.2) [2008] FamCA 368).
I now consider each in turn.
The onus to establish a proper basis for the stay is on the applicant for the stay
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)
Those submissions really go to the wife’s vexatious litigant application, which I will consider (by agreement) at a later date.
The husband has embarked upon the previously described circuitous path to attack the substantive s 79 decision via his s 79A application, appeal and stay. I have already referred to the husband’s earlier application under r 10.13 to set aside my order dismissing his “application by email” to adjourn the trial. At that r 10.13 hearing, his then counsel acknowledged that the r 10.13 application was really a re-run of the adjournment-by-email application. As I indicated in those r 10.13 reasons, had I been asked by the wife, I would have said that was an abuse of process.
Frankly, the husband seems intent on thwarting the finalisation of this matter where both parties would otherwise receive their entitlements from the sale of the former matrimonial home.
I consider this stay application to be another attempt to delay the outcome of these family law proceedings in the hope the husband may be able to obtain a loan and/or will be successful in his District Court proceedings and, whenever those proceedings will be determined, he will then be able to buy the wife out of the home (Affidavit of Mr Rader filed 24 March 2023, paragraph 8).
In those circumstances, I consider his stay application is not bona fides but another delay technique. That favours the wife’s positon in not granting the stays.
Further, the unsuccessful party cannot, in the language of Mason CJ in Autodesk Inc v Dyason (1993) 176 CLR 300 try to engineer a backdoor appeal. That is what the husband is trying to do here.
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;
This is a ground that attracts significant weight when considering whether there is a real risk that if the stay is refused, it would render a successful appeal nugatory, or would make it impossible or impractical to restore the situation presently existing (B & the Estate of Coburn and Ors [2020] FamCA 548 at [35]).
The husband’s path to challenging the s 79 orders would see him hoping to keep the Suburb J property. This requires he be successful on appeal, then success in arguing the resulting re‑hearing of the s 79A application, and then successfully arguing the re-hearing of the s 79 application so he can keep the house and payout the wife. For the purposes of this application, I am prepared to accept all those possibilities may occur
However, as already canvassed, the husband also says an (unspecified) adjustment in his favour and an (unspecified) adjustment to his superannuation in a new s 79 trial, along with some kind of loan and/or a payout in the yet to be determined District Court proceedings may be avenues by which he could pay out the wife in these proceedings and keep the house.
Yet this is all in circumstances where his trial affidavit acknowledged the property might need to be sold.
Two issues arise under this factor. First, is the husband’s contention that he can keep the home probable on the evidence before me? Second, if I am against the husband on staying the orders relating to the sale of the Suburb J property, what should I do with the sale proceeds?
Keeping the home: a probable proposition?
In the s 79 Reasons, I determined the Balance Sheet as follows:
·Assets of $4,604,890, including the Suburb J home at an agreed value of $4,525,000. The balance of assets comprised a car, some bank accounts and contents;
·Mortgages over the Suburb J property of ($764,726);
·Superannuation of $714,590, with just over $586,000 attributable to the husband;
·Nett Total Assets (excluding Superannuation) $3,840,164; and
·Nett Total Assets (including Superannuation) $4,554,754.
At a nett value of $3,760,275, the home is obviously the single biggest item of property in the pool.
In reality, for all the orders the husband seeks to stay, the bottom line is (as submitted) that he wants a chance to keep the Suburb J property. That was what he sought in the s 79 trial by his material and outline of case, all of which I took into account. Section 79 proceedings and stay applications are not conducted by reference to the ‘wants’ of one party. Rather justice and equity must be done for both parties.
I turn then to the question of whether it is probable for the husband to contend that he can keep the home and pay out the wife if he was successful on all the steps in the litigation he charts in both this court and the District Court and is able to obtain some kind of loan.
In other words, if the husband cannot satisfy me he will it be able to keep the house on the evidence before me, then there is no need to stay the orders for sale (see for example, Kellner & Kellner [2019] FamCA 139). I again observe it is the husband who has the onus to establish a proper basis for the stays.
The husband’s position is that the appeal will be rendered nugatory if the orders are not stayed. He submitted:
In the event that the Husband succeeds in having the s 79 Orders set aside pursuant to s 79A and the Court exercises its discretion to make new orders pursuant to s 79, it does not necessarily follow that such new orders would require the sale of the [Suburb J] property. The s 79 entitlement of the Wife pursuant to any new orders may be such as to leave scope for the Husband to re-finance the mortgages secured over the [Suburb J] property in order to borrow sufficient funds to pay the Wife her entitlement.
Self-evidently, if the Husband’s stay application is not granted and the Wife is permitted to enforce the s 79 Orders and sell the [Suburb J] property, the opportunity of the Husband to retain the [Suburb J] property, subject to the outcome of his s 79A Application and any new s 79 orders, would be irrevocably lost.
(Case Outline of husband filed 2 March 2023, paragraphs 91- 92)
Those submissions lacked an evidential foundation to demonstrate there was “scope” the husband could keep the house. Saying it is so does not make it so.
It is worth repeating what the husband deposed to in his affidavit:
8.In the event of an adjustment of the final orders in my favour including an adjustment to both my and the Applicant’s superannuation interests, there are a number of avenues available to me by which I anticipate that I will be able to purchase the Applicant’s then share in the Property, including:
(a) In circumstances where there is also a redistribution of the pool which results in me retaining less superannuation and more of the Property, I expect to be able to obtain a loan which would allow me to purchase the Applicant’s adjusted share of the Property.
(b) My daughter and I are currently involved in District Court Proceedings against the Applicant, seeking damages […]. Those proceedings are being heard in [mid-2023]. I expect that the combined damages to be awarded to my daughter and me will be in an amount of up to $750,000, which will enable my children and me to purchase the Applicant’s share of the Property.
(Emphasis added)
(Husband’s Affidavit filed 24 March 2023, paragraph 8)
The highlighted propositions at paragraph 8 and 8(a) are meaningless. I have no idea what any of these assertions actually mean:
…an adjustment of the final orders in my favour including an adjustment to both my and the Applicant’s superannuation interests…
…
…where there is also a redistribution of the pool which results in me retaining less superannuation and more of the Property…
Further, the husband’s “expectations” with respect to a loan and the damages are speculation.
Similarly, the husband also deposed:
If my Appeal is successful, my application is that the ultimate s 79 property adjustment orders would reflect a larger proportion of the net matrimonial assets being distributed to me.
(Husband’s Affidavit filed 24 March 2023, paragraph 7)
I have no idea what a “larger proportion” means and how that demonstrates he could keep the home.
Further, he deposed:
In circumstances where it is highly likely that even a small re-adjustment of the s 79 alteration of property interests orders made on 21 December 2022 will mean that I am able to purchase the Applicant’s share of and thereafter remain living in the Property with my two children, the prejudice of moving out of the Property and allowing it to be put up for sale and potentially sold outweighs the little prejudice of a stay pending the Appeal.
(Husband’s Affidavit filed 24 March 2023, paragraph 9)
I have no evidence or submissions that indicate what “even a small re-adjustment” means. I will not guess what this re-adjustment sought may be. That also seems at odds with the case the husband ran in the s 79 trial, at least by his Outline, being that the wife have 104% of the pool. In the s 79 Reasons, I took that to be an error and he actually sought 104% of the pool for himself.
None of that assists me in being satisfied that there is a probable chance that the husband could retain the home. I do not know what he proposes by way of an adjustment or redistribution. The onus is on the husband.
The husband’s sweeping submissions about unspecified adjustments in his favour do not help the husband discharge the onus upon him.
I turn to the idea that the husband could “obtain a loan” in his paragraph 8(a). Curiously, the Financial Statement the husband relied upon in the s 79 trial revealed income of $3,026 per week gross, but an excess of expenses over income. There was no evidence to explain how he met the shortfall. The husband also said he pays $900 per week in mortgage payments, that is, $46,800 per annum, but I had no evidence that he actually pays that from income, as opposed to, say, redraws on the matrimonial mortgages. The evidence in the s 79 trial was that the mortgage had increased considerably since separation, but I do not know why. What he deposed to in his Financial Statement does not sit comfortably with the idea that he could “obtain a loan”.
Indeed, I have no evidence how the husband will be able to service a mortgage if such re-financing occurred.
Exhibit 1 from the hearing on 21 April 2023 is said to be evidence of the husband’s borrowing capacity and an apparent ability to refinance. I allowed this email into evidence over the objection of the wife. The wife then submitted at the hearing this evidence is weak and should be given little weight. I accept that submission for the following reasons:
(a)I have no idea who Mr YY is or what ZZ Finance is. I have no idea what qualifications Mr YY has to assess borrowing capacity, if any;
(b)The email begins “Thanks for the confirmation”. I have no idea what was confirmed;
(c)It goes on, “Based on the information you provided, I’ve done some basic calculation”. I have no idea what information was provided or the nature of the basic calculation;
(d)The email says the husband would have the borrowing capacity of approximately “$2‑$2.2 mil”. There is no basis provided for that conclusion;
(e)Yet that amount is subject to the following:
Financial information including your income and expenses provided at the time of the bank application remains unchanged as you stated
The completed application meets the banks normal lending criteria.
(Exhibit 1)
(f)The husband has not put his financial information upon which the estimate is based in to evidence. I am also unsure how anyone can estimate someone’s borrowing capacity without the assurance of the two ‘subject to’ factors above. I also have no evidence before me of what the bank’s normal lending criteria means and what that entails;
(g)Plainly, the email is not an offer from a bank/financial service to re-finance, nor is it an offer that can be accepted.
I put no weight on that email in terms of the husband demonstrating actual borrowing capacity.
As to the second of the propositions in the husband’s paragraph 8(b), I place no weight on the prospects of retaining the Suburb J property through the proceeds of any potential damages awarded to the husband and his daughter in District Court Proceedings.
I am not prepared to speculate on what may or may not happen in the District Court proceedings or the quantum that may or may not be involved. The currency of this Court is evidence, not hope or speculation. It is also the case that a stay application is not just about what one party wants and hopes for, but consideration must be given to the positon of the other party too.
In short, the husband has not demonstrated that keeping the house is probable. He does not tell me what adjustment he would seek that would make that feasible. He has spoken of a potential to re-finance to be able to keep the Suburb J property, but Exhibit 1 attracts no weight for the reasons given. Looking at his Financial Statement with an excess of expenses over income, I do not know how he would service borrowings. He does not favour me with evidence that he can.
It was for the husband to establish that selling the home would render his appeal nugatory. He has failed to do so.
The proceeds of sale
The distribution of the sale proceeds is clearly a separate issue. The Orders pertaining to distribution of the proceeds ought be stayed. Put differently, if the proceeds were distributed consistent with the substantive s 79 orders, then the appeal may well be rendered nugatory as the proceeds may be dissipated.
This is, according to principles, one of the most substantial matters for consideration in the exercise of the discretion to grant the stay or not.
It was submitted by the husband’s counsel at the hearing of the stay application, “if the money goes, it goes”. I accept this to be the case.
Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
In State Central Authority & Ustinov (No. 2) [2008] FamCA 368 at [12]), and as the Full Court has agreed (Brennan & Shaw (Stay Appeal) [2008] FamCAFC 138 at [64] per Bryant CJ, Boland and Stevenson JJ), it is difficult for a Judge at first instance to review their own decision when determining the potential for success of any appeal from that decision. Nevertheless, it is a task which I must perform.
The grounds of appeal are too voluminous to include here. They are annexed to these Reasons at “A”.
The husband submits in the Outline of Case Document filed 2 March 2023 that:
The merits of that application are a factor the Court will take into account in determining his stay application.
The Husband submits that, when the Court takes into account the merits of his s 79A Application and the other factors relevant to the exercise of the Court’s discretion to stay enforcement of the s 79 Orders and the Wife’s Application in a Proceeding, the Court ought to conclude that, at least for the time being, the Wife is not entitled to enforce the s 79 Orders and enjoy the fruits of the judgment.
(Husband’s Outline of Case Document filed 2 March 2023, paragraphs 85 and 86)
With respect to the last part of this outline, the husband did not appeal the enforcement Orders, and did not press his stay against those orders which have been executed.
The wife submits the proposed appeal is groundless and has no prospect of success, and therefore the application ought be dismissed.
Some of the grounds, for example Ground 1 and 8(a) in essence go back to the husband’s choice not to attend the trial or make written submissions.
Grounds 2 and 3 concern the receipt (or not) of the Administrative Appeals Tribunal prohibited material. The husband’s counsel abandoned an attempt to tender the material saying:
MS RUSITI: Your Honour, I think I – the difficulty appears to me, with the notice to produce, that, were my friend to produce the documents to me, I could not, then, do anything with them.
(Transcript 3 March 2023, p.29 lines 7-9)
I said this at paragraph 81 of Haines & Rader (No 5) [2023] FedCFamC1F 132
81. To give context to this ground, it must be recorded that the husband’s Case Outline relied upon information, which had been used contrary to a s 62C Administrative Appeals Tribunal Act1975 prohibition order. To the husband’s Counsel’s great credit, when this prohibition was brought to her attention, she did not press the tender of documents which were referred to in her Outline. I therefore disregard what was said in the husband’s Case Outline that relied upon the prohibited material.
It is hard to see the husband can now run appeal grounds contrary to his conduct before me. When asked about the basis of this ground when the tender was not pressed at the hearing on 20 April 2023, the husband’s counsel submitted the tender was not pressed in light of my interpretation of the meaning of orders of the Administrative Appeals Tribunal. An appeal against that interpretation was discontinued by the husband on 5 April 2023.
Grounds 4 to 6 and 8(b) rest on the wife’s possible employment. The husband’s counsel accepted the husband’s affidavit about this topic constituted rank hearsay and attracted little weight. The wife denied she had misled the Court as to her earning capacity and denied having a job at the time of trial nor did she have an offer of employment (Wife’s affidavit filed 27 February 2023, paragraph 3).
These grounds also say things such as I found the wife did not have a duty to disclose once the evidence closed. Respectfully, [42], [86] and [90]-[93] of Haines & Rader (No 5) may be a better portrayal of what I said and why.
Ground 7 does not seem to accord with how the husband ran his s 79A case, nor my reasons on the section 79A application.
I do not understand Ground 9, especially when having regard to how the husband ran his s 79A case.
Similarly, Ground 10 complains about failing to afford the husband procedural fairness by not determining the application for leave to grant a subpoena prior to determining the section 79A application. However, the process adopted at the hearing was one specifically agreed to by the husband’s counsel. Counsel agreed that if I was against the husband on the s 79A application, then the subpoena issue fell away. At no time did the husband’s counsel ask I determine that matter first.
Many of the grounds really come back to how the trial was conducted and what evidence was before me, or not. But that was in circumstances where the husband chose not to prosecute his case or make submissions as he had the opportunity to do. It is hard to see how the husband’s choices can be employed by him to now complain.
It will be for other minds to determine whether the husband’s appeal is upheld or is dismissed. In my preliminary assessment though, I am not persuaded the husband has an arguable case on appeal. The grounds of appeal rest on the consequences of the husband’s choice not to attend the trial, or grounds that are contrary to appropriate concessions made by the husband’s counsel when before me, or is at odds with how the husband ran the section 79A application in the first place.
Any delay in bringing the application for a stay
The decision from the hearing on 3 March 2023 was handed down on 7 March 2023. The husband filed his application to stay those orders on 24 March 2023, and three Notices of Appeal on 27 March 2023. One of those appeals survive. There is no delay there.
However, that 24 March 2023 stay application also sought a stay of the substantive s 79 proceedings which were made on 21 December 2022. That is a substantial delay and goes to the back door appeal to which I have already referred.
When can the appeal be heard?
Unhelpfully, the husband had no information, let alone evidence, when the appeal might be heard. Just as I had to find the husband’s Notice of Appeal (as opposed to the husband putting it into evidence) I also was left making inquiries of appeal hearing weeks. The publically available court calendar showed the Appeal Division was sitting in the week of 26 June 2023, but I had no idea (and was given no information or evidence by the husband) if the week was already listed out.
It would have been helpful if the husband had provided even basic information about when the appeal might realistically be heard.
I therefore have no evidence of the likelihood of when the appeal will be listed in this matter. That does not help the husband.
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;
The tensions that arise in any stay application are that, on one hand, a successful litigant should not be deprived of the “fruits of the litigation” but on the other, the maintenance of the status quo pending appeal when it is appropriate to do so.
Whilst I accept the husband wants to keep the house, I have also found the husband has brought this application as part of an overall strategy to delay finality. His two applications (that I am aware of) to delay these proceedings until the outcome of the District Court proceedings were dismissed. He is just trying other ways to achieve the same outcome.
The wife is entitled to the fruits of litigation, but the orders I will make staying the distribution of sale proceeds to the parties means she will be held out from her entitlement (as will the husband) until the appeal is resolved. Yet, at least steps toward resolution can be progressed by the sale of the property.
There have been significant delays in the finalisation of the matter and it is my view that the husband must take all reasonable steps to ensure that his appeal is pursued in a timely fashion (Rankin & Rankin (No 2) [2016] FamCA 512). In the event the husband brings application/s to adjourn the appeal or does not prosecute it with diligence, then the wife will have liberty to bring the matter back before me.
To my mind, that is fair to all parties. The proceeds of sale will be preserved but the wife will have recourse if the husband does not prosecute his appeal with diligence.
That is the way that I can preserve the assets, being the proceeds of sale, on one hand, but ensure as best as I can that the appeal does not drag on at the husband’s doing in a way detrimental to the wife.
I am satisfied the conditions imposed on the husband for the granting of the stay are reasonable when considering the hardships caused to the wife of such stay.
ORDERS TO BE STAYED
I will deal with the orders in turn.
7 March 2023 Order
I will:
(a)Not stay Orders 1 and 2 being the refusal of leave to issue further subpoena and the dismissal of the husband’s s 79A application. The correct vehicle to attack these orders is an appeal. That is what the husband has done. However, the husband has failed to demonstrate to me how or why I would stay a refusal or a dismissal. I do not understand what effect the granting of a stay on such orders will have. I will not stay these orders;
(b)Not stay Order 3, which was to the effect the husband is to vacate the Suburb J property. This has occurred. I will not stay an order that has been complied with. I have already referred to the husband’s oral application that he retake the house. As indicated, I was not prepared to hear an oral application without notice to the other party concerning something of considerable substance. I will not stay this order which has been complied with;
(c)Not stay Orders 4 and 5 as they were not pressed. The Warrant of Possession has been executed;
(d)Not stay Order 6, which is the restraint against the husband enjoining him (or anyone else vacating the property) from entering the property for any purpose. As I am not granting a stay of Order 3 above, and did not permit the oral application for the husband to retake possession, I will not stay the order restraining the husband. That would be more properly determined by a Application in a Proceeding with notice to the wife;
(e)Will not stay Orders 7, 8 and 9. They were not pressed;
(f)I will not stay Order 10 which relates to the wife being able to remove the husband’s possession from the Suburb J property in the event he did not comply with Order 9. Order 9 was not pressed by the husband to be stayed. The timeframe for removing his possessions has passed. The husband had more than enough time to comply with the order;
(g)Will not stay Orders 11 to 14 which relate to the process for selling the Suburb J property. For the reasons given I will not stay the orders with respect to the sale. I will also not stay the orders that allow the wife to do what she reasonably needs to, to sell the house at Order 13. It is in both parties’ interests that she be able to do whatever is reasonably needed to maximise the sale price. Order 14 provides for the wife to be re-reimbursed for any such expenses to which she has been put. That was an appropriate order to make on 7 March 2023 and remains so;
(h)Will not stay Order 15. That gave the wife liberty to apply in respect of the sale or implementation of these orders. No submissions were made with respect to it. Equally, as I am not staying the orders that allow for the sale of the property it is important that the wife be able to come back to court, if necessary, with respect to the property sale;
(i)Will not stay Orders 16 to 19 which concerned a process for making any cost submissions. The husband’s counsel agreed to this process. No submissions were made about staying these orders. These were procedural orders setting out timeframes to provide submissions on costs. I handed down by costs decision on 6 April 2023 (Haines & Rader (No 6)). I will not stay something that has already occurred and to which the husband agreed.
21 December 2022 Order
The husband sought to stay the entire 21 December 2022 Order even though some orders had been complied with, or overtaken by the 7 March 2023 Order.
The third parties who have an interest in the costs orders were not given any notice of this hearing. I am not prepared to prejudice the interests of third parties who were denied procedural fairness by the husband’s inactions.
I accept the husband’s counsel’s solution that a stay be granted on terms that they are paid. I agree that that is an appropriate approach to the third parties. I will make such an order. Counsel also conceded she could not cavil with the payment of the wife’s costs as set out in that Order at order 7.4(ii)(D). I will add that to the conditions of the stay.
Consistent with the reasons I have given above I:
(a)Will not stay Order 1. Order 1.1 has occurred albeit belatedly and by a Warrant of Possession. Order 1.2 is with respect to sale of the Suburb J Property which I am allowing to proceed.
(b)Will not stay Order 2 as the wife’s enforcement proceedings finalised by an order on 7 March 2023 has overtaken that order;
(c)Will not stay Orders 3, 4, 5, 6, 7.1, 7.2. These orders relate to the sale of the Suburb J property. I have already given reasons why I will not stay the sale. It is also important that the appointed agent auctioneer, appointed solicitor and conveyancing solicitor be paid. They are third parties in this. I will also not stay Order 7.2 which relates to the O Limited mortgages. It has been overtaken by Order 12(g) of the 7 March 2023 orders;
(d)Will stay Orders 7.3 and 7.4, but not 7.4(ii)A, B and D. The orders which I will stay go to the distribution of proceeds of sale to the parties consistent with my substantive s 79 determination that the wife receive 60 per cent of the net assets and the husband receive the balance less certain costs and any increase in the O Limited mortgage from the sums set out in the parties’ Balance Sheet. The orders which I will not stay are the costs orders in favour of third parties and the wife, to which I have already referred;
(e)Will not stay Order 8 which concerned an application for a child support departure which I dismissed. No submissions were made with respect to that order, and once again it poses the question of how I can stay a dismissal of an application. This Order has not been appealed.
(f)Will not stay Order 9. No submissions were made about this. That concerned the dismissal of the husband’s second application to stay the operation of the s 79 orders pending the outcome of his District Court proceedings. This order has not been appealed;
(g)Not stay Orders 10 and 11. No submissions were made with respect to Orders 10 and 11. Order 10 is simply a s 106A order which the wife might need the benefit of given I have not stayed the orders pertaining to the sale of the property. Order 11 is procedural and has no effect on the appeal. Order 11 has benefit for both parties.
For the Reasons I have given, I make the orders at the start of this Judgment.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 23 May 2023
ANNEXURE A – GROUNDS OF APPEAL
Orders dated 3 & 7 March 2023
S 79A – Allegation that wife gave false evidence in relation to funds used to purchase [Suburb J] property
1. In finding that the Wife’s evidence as to “joint savings” did not amount to false evidence for the purpose of s 79A(1)(a) of the Family Law Act 1975 (Cth) (the Act) (Judgment of Brasch J dated 7 March 2023 at [60]), the trial Judge erred in that she:
a.failed to give any or any sufficient weight to the totality of the Wife’s evidence at trial, specifically but not limited to paragraphs 10, 13 – 15 and 17 – 21 of the Wife’s Affidavit filed 2 September 2022 (the Wife’s Trial Affidavit)
b.failed to give any or any sufficient weight to the totality of the parties’ evidence at trial, contained in the Wife’s Trial Affidavit and the Husband’s Affidavit filed 2September 2022 (the Husband’s Trial Affidavit), which did not support a factual finding that, through the parties’ joint economic unit, at the time of purchase of the [Suburb J] property the parties had or could have amassed “joint savings” of an amount equivalent to that part of the purchase price and purchase expenses of the [Suburb J] property not borrowed by the parties from [O Limited]
c.as a consequence of (a) and (b) above, failed to find that the Wife knew or ought to have known that her evidence as to “joint savings” was false, but gave such evidence anyway.
S 79A – Allegation that wife suppressed evidence in relation to her employment
2. The trial Judge erred in her interpretation of the Orders of the Administrative Appeals Tribunal dated 12 August 2022.
3. As a consequence of 2 above, the trial Judge erred in:
a.prohibiting the Husband’s tender of and reliance upon documents contained at items 2, 3 and 4 of the Husband’s Tender Bundle for the hearing on 3 March 2023
b.disregarding what was said in the Husband’s Case Outline filed 2 March 2023 that relied upon the so-called “prohibited material” (Judgment of Brasch J dated 7March 2023 at [81]).
4.In finding that the Wife did not have a duty to disclose to the Husband information in relation to the Wife’s employment which changed after the trial, the trial Judge erred in that she:
a.failed to give any or any sufficient weight to the nature and extent of the duty on the Wife of full and frank disclosure, which duty remained binding on the Wife until the termination of the proceedings by the delivery of Judgment on 21December 2022
b.failed to give any or any sufficient weight to the difference between the information as to the Wife’s employment that was provided to the Husband by a Centrelink official in October 2022 and the detail of the Wife’s employment that was known to the Wife at that time
5.As a consequence of 4(a) & (b) above, the trial Judge erred in finding that the Husband had the relevant employment “information himself in October”, such that the Husband “was armed with the information” (Judgment of Brasch J dated 7 March 2023 at [90]),such that the Wife did not have a duty to disclose such information.
6.In the premises, the trial Judge erred in failing to find that, for the purposes of s 79A(1)(a)of the Act, the Wife suppressed evidence, including by failing to disclose relevant information, in relation to her employment between the date of conclusion of the trial and the date of delivery of Judgment on 21 December 2022.
S 79A – Miscarriage of justice
7.The trial Judge erred in holding that a miscarriage of justice, for the purpose of s 79A of the Act, could only be demonstrated by the Husband satisfying the Court that the false or suppressed evidence had given rise to a defect or flaw in the judicial process.
8. In the premises, the trial Judge erred in failing to find that:
a.if the Wife gave false evidence in relation to the use of “joint savings” to contribute towards the purchase of the [Suburb J] property, there was a miscarriage of justice by reason of such false evidence
b.if the Wife suppressed evidence (including failed to disclose evidence) in relation to her employment, there was a miscarriage of justice by reason of such suppression of evidence.
S 79A - Failure to exercise discretion
9.In determining not to exercise her discretion pursuant to s 79A of the Act in favour of the Husband, the trial Judge erred in that she failed to give any or any adequate consideration to relevant factors, including:
a. the degree and nature of the miscarriage in question
b. absence of any alteration in the parties’ positions in the meantime
c. factors that are relevant under s 79 of the Act
d.that the s 79 Orders made on 21 December 2022 fall outside the broad range of just and equitable property adjustment outcomes, when the impugned false evidence and suppressed evidence of the Wife is not taken into account
e. prejudice to the Husband.
S 79A – Conduct of hearing
10.The trial Judge erred in failing to afford to the Husband procedural fairness in refusing to consider and determine the Husband’s application for leave to issue subpoenas in advance of her Honour’s determination of the Husband’s s 79A application.
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