Halsbury and Halsbury

[2007] FamCA 873

FAMILY COURT OF AUSTRALIA

HALSBURY & HALSBURY [2007] FamCA 873

FAMILY LAW - APPEAL – From decision of Family Court Judge – Appeal against dismissal of husband’s application for stay of property settlement orders and against the enforcement of property orders – Challenge by husband to costs order – Whether trial Judge should have granted an adjournment – Whether further evidence proffered by the husband should be admitted – Whether trial Judge erred in his treatment of the prospects of appeal – Whether trial Judge erred in comparing hardship and about the effect of his orders on the children – Whether trial Judge failed to have regard to such effect

APPELLANT: MR HALSBURY

RESPONDENT: MRS HALSBURY

FILE NUMBER: BRF 16110 of 2005

APPEAL NUMBER: NA 54 of 2006

DATE DELIVERED: 24 August 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: FINN, COLEMAN AND WARNICK JJ

HEARING DATE: 24 NOVEMBER 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 March 2006

LOWER COURT MNC: [2006] FamCA 282

REPRESENTATION

THE APPELLANT: Appeared in person

COUNSEL FOR THE RESPONDENT: Mr Waterman

SOLICITOR FOR THE RESPONDENT: B W Crane & Associates

Orders

1. That appeal NA54 of 2006 be dismissed.

2. That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party within 21 days of the date hereof.

3. That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party.

4. That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Brisbane Registry of the Family Court and serving it on the other party within a further 7 days.

5. That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Full Court delivered this day will for all publication and reporting purposes be referred to as Halsbury & Halsbury

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 54  of 2006
File Number: BRF 16110  of 2005

MR HALSBURY

Appellant

And

MRS HALSBURY

Respondent

REASONS FOR JUDGMENT

1. On 23 November 2006, for reasons given ex tempore (in the first instance by Warnick J and we, the other members of the bench agreeing) we allowed an appeal and set aside property settlement orders made by Bell J on 7 March 2006, as amended 8 March 2006.  We remitted the cross-applications for property settlement for re-hearing.

2. In his reasons, Warnick J mentioned a second appeal by the husband then before us, against further orders made by Bell J on 15 June 2006, dismissing the husband’s stay application, making orders for enforcement of the property orders, and that the husband pay the wife’s costs of “this” application.  Warnick J noted that we had not heard submissions in the second appeal but that it appeared to have lost purpose, given that the substantive property orders were to be set aside.

3. However, upon hearing the parties in respect of the second appeal, it has become apparent that, notwithstanding that no ground of appeal referred directly to the costs order, the husband wishes to pursue the challenge to it, and the wife seeks to maintain the order.  In those circumstances, it is necessary to consider the appeal against the dismissal of the husband’s application for stay of the property settlement orders and against the enforcement orders, as the making of those orders must necessarily have influenced the decision as to costs.

4. Apart from submissions made at the hearing of the appeal, we have, pursuant to directions, received written submissions from the husband in support of the application to adduce further evidence and by way of reply to the submissions for the wife.

5. The order of 8 March 2006 required payment by the husband to the wife of $107,804.00 in exchange for a transfer of the wife’s interest in the former matrimonial home.  No time for payment was specified, but the affidavit material before Bell J on 15 June 2006 showed that the time of payment had been discussed between the parties, on 29 May 2006 Bell J had ordered that the date for settlement be the next day; 30 May 2006; and on 8 June 2006, the husband paid $60,000.00.  Thus, before Bell J on 15 June 2006, the husband was seeking a stay of the obligation to pay the balance of Bell J’s 8 March 2006 order.

6. The husband was represented on his application but he was not personally present.  His application was supported only by an affidavit by Ms M, his solicitor, though the transcript discloses that the Notice of Appeal against the property orders was also before the Judge.

7. On the face of her response, the wife simply sought a dismissal of the husband’s application and costs.  Apart from the reasons of Bell J for the substantive orders, and the order of 29 May 2006, the wife’s material in support of her response consisted of her affidavit sworn 15 June 2006.  The wife’s response and affidavit were only made available to the solicitor for the husband and filed on the day of hearing.

8. There are eight grounds of appeal.  Three relate to a failure of the Judge to grant an adjournment.  Two assert that Bell J was wrong in his consideration of the prospects of the appeal against his property order, and three allege that Bell J wrongly treated the matters of respective hardship to each party and “the effects of his orders on the children”.

9. The husband also seeks to put before us further evidence, which is essentially a reply to the affidavit of the wife put before Bell J on 15 June 2006.

Should Bell J have granted an adjournment?

1. The three grounds of appeal which raise this question and the consequences of the failure to adjourn are:

   “1.His Honour Judge [sic] Bell failed to grant a suitable adjournment when the Respondent Wife’s application and affidavit were handed up in court.

   2.His Honour Judge [sic] Bell heard the Respondent Wife’s Application in my absence.

   3.His Honour Judge Bell [sic] gave too much considerations, or any consideration, to evidence which had not yet been contested.”

2. As indicated earlier, the evidence to support the husband’s application was only the affidavit of his solicitor.  Ms M deposed that she had thought that the substantive orders of Bell J would be automatically stayed once she had lodged the appeal.  She then addressed her lack of knowledge of Family Court procedures relating to appeals, and her misunderstanding of the steps to be taken in seeking a stay.  Other than also recounting the orders made at trial and the payment made by the husband and that the husband wished also to recover a tool box and tools from the wife, the affidavit contained no further information.

3. The wife deposed about negotiations about a date for payment of the amount due under the orders and to attending with the husband at his bank.  She said that the bank informed her that the husband could borrow the funds he required to pay the wife if she executed a transfer of the property into his name.  Further, that the husband’s application for loan in the sum of $107,840.00 was approved and was only awaiting a settlement date.

4. As to hardship to herself, the wife deposed that in anticipation of the receipt of funds from the property settlement, on 7 February 2006 she had purchased a block of land for $70,000.00.  She had borrowed in respect of the purchase and owed $59,500.00.  She gave particulars of her income and expenditure.

5. It is obvious that the evidence in the husband’s case was grossly deficient.  The transcript of the hearing before Bell J discloses that his Honour endeavoured to ascertain the basis of the stay application.  He enquired of Ms M the reasons for the stay.  Ms M said:

   MS [M]:  The reason we wanted a stay was that in order to pay the wife the 107,000, which he had to do under the terms of your judgment, the reason we are appealing is on the amount that you awarded to the wife, and he as a pensioner would have difficulty borrowing that money, and if he has to then get some of it back if he were to be successful on appeal.

6. His Honour then referred to the absence of material addressing grounds for a stay, during which discussion Mr Waterman, Counsel for the wife, indicated that he had prepared an outline of submissions, whereupon the following exchange occurred:

   MS [M]:  Your Honour, those matters were handed – those papers were handed to me at the Court door as we came in here.

   HIS HONOUR:  Well, we will give you some time to read it, we will stand it down until half past 11.  And you can read it.  ….

7. Before the matter was adjourned, Mr Waterman identified the material that he relied upon, including the affidavit of the wife sworn that day.  Ms M took no objection.  The matter was adjourned for about one and a half hours.

8. Upon resumption, Bell J asked Ms M if she had had a chance of reading Mr Waterman’s submissions.  Ms M replied in terms complimentary of the submissions.  She said nothing, at least at that time, of an adjournment to reply to the wife’s response.

9. His Honour asked Ms M to tell him how her client’s case came within the principles set out in Mr Waterman’s submissions:

   MS [M]:  Well, I believe that it will have – it could have a nugatory effect on my client.

   HIS HONOUR:  Where does that appear in the material?

   MS [M]:  I am afraid I haven’t furnished that material because I wasn’t aware that that would be brought up until today.

   HIS HONOUR:  But it was quite clear.  As you say, you are aware of the principles, and the principles are clearly set out in Jenyns’ case.  And the first one is, in each case where the Court is satisfied a stay is required to preserve the subject matter of the litigation, and that is the house in this case.  Why won’t it be – what will happen?

   MS [M]:  The house will have to be sold if my client has to pay out - - -

   HIS HONOUR:  All right.

   MS [M]:  - - -  his wife, Mrs [Halsbury].

   MR WATERMAN:  I formally object, your Honour, there is no - - -

   HIS HONOUR:  I know you would object, because there is no evidence of that.

   …

   HIS HONOUR:  There is no evidence that he is in financial difficulty, there is no evidence that he – there may have been evidence in the trial, but there is no evidence that his disability – what is he, DPI – a permanently disabled pensioner.  There is no evidence before me in the trial that in fact he would have difficulty meeting any order of the Court without the sale of the house.  And let me see if there is any evidence in his affidavit, or your affidavit rather.

   MS [M]:  No, there isn’t.  The affidavit is mine entirely.

   …

   HIS HONOUR:  - - - on that material I can’t grant your application for stay, it is not sufficient.

   MS [M]:  Would your Honour see his way fit to grant me an adjournment for me to get - - -

   HIS HONOUR:  You would be paying costs.  You would be seeking costs, if it is granted.

   MR WATERMAN:  Certainly I would be, your Honour, and I would be urging your Honour to make that order.

   HIS HONOUR:  Unfortunately, it would have to be of exceptionally short duration and it wouldn’t be before me, because I am away. (emphasis added)

10. Mr Waterman then specifically referred Bell J to the content of paragraph 6 of his client’s affidavit.  After reading that material his Honour returned to check with Ms M that she was seeking an adjournment, which she confirmed, and his Honour said:

    HIS HONOUR:  Why?  For what reason?

    MS [M]:  If I could point out what the respondent’s affidavit doesn’t say is that the property would have to be sold because my client as a disabled pensioner cannot make the repayments of the mortgage - - -

    HIS HONOUR:  Well, he doesn’t have to say that, I would have thought you would have to say that, because it is peculiar within your knowledge – in your client’s knowledge, of course.

    MS [M]:  It is my mission, your Honour, as to evidence which I have not put forth yet, because I only got this – these submissions and material this morning as I entered the Court.

    HIS HONOUR:  Thank you, Ms [M].  Anything further?

    MS [M]:  If I could say that one of the reasons that we feel that there are special conditions are that if the wife is paid this money – in her own affidavit she has stated that she is building a house.  If she builds that house before all the money is used from the settlement, prior to the appeal being granted, if the appeal were to be granted, it could well be in a situation that at that stage she would not have the funds to repay any amount that the appeal might say had to be repaid to my client.

    She could well be in a position where she also has a mortgage then that she would have to extend, which she may not be able to extend.  And it was for that reason that I considered myself that it could be seen that there could be a nugatory result on my client if the leave was not granted.

    HIS HONOUR:  Do you wish to say anything further in relation to the substantive application for a stay?  Or have you said everything you can?

    MS [M]:  I have said everything I can usefully can at this stage.

    HIS HONOUR:  Thank you very much.

    MS [M]:  I would seek an adjournment if your Honour is minded not to grant it.

    HIS HONOUR:  Thank you. (emphasis added)

11. His Honour then delivered judgment on the stay application.

12. Although, as seen, at one point the solicitor for the husband referred to only receiving submissions and material from the wife on the morning of the hearing, taken overall, the basis upon which she sought an adjournment was to correct the deficiencies of evidence in the husband’s case.

13. In so far as it appears that she wished to reply to the evidence of the wife about the availability of finance to the husband, that very question, namely the husband’s capacity or incapacity to borrow to pay the amount due to the wife, was a question fundamental to a basis upon which he sought a stay and in the first instance ought have been addressed in his case.

14. In his summary of argument, the husband refers to the rules relating to the filing of applications and affidavits and submits that the wife’s material relied upon on the stay application was not filed in accordance with those rules.  However, the point in this appeal is simply that he was represented and his solicitor did not, in any clear fashion, take any objection based on non-compliance with the rules or indeed the lateness of the wife’s material, per se.

15. After the judgment in respect of the stay application, discussion about the tool box followed and a judgment about that issue was delivered.  His Honour then enquired whether there was anything further.  Mr Waterman raised questions of the expense to which the wife had been put in opposing the application, that there had been delay in relation to the payment of the monies and he referred to the hardship to the wife in making mortgage payments on the land she had purchased.  He said:

    …The wife has sworn to the husband having finance in place to pay the whole of the monies due to her by – and that - - -

    at which his Honour said:

    30 June, Mr Waterman, otherwise the property will be sold.

16. Bell J then asked Mr Waterman if he was submitting to the contrary.  His Honour indicated that that (the terms he had just announced) was what he was suggesting, namely it was the order he would probably make.  Mr Waterman took instructions.  There was then some discussion about from when interest would run and Mr Waterman said that the only other application he wished to be heard upon was for costs.  After some further discussion between Bell J and Mr Waterman, his Honour called upon Ms M for any submissions about costs.  Ms M said:

    MS [M]:  Well, clearly, I have difficulty in opposing them.

    …

    HIS HONOUR:  I think you do, yes.  What do you say about 30 June for the payment of the balance, should it not be paid on or before that date, the property be forthwith listed for sale?

    MS [M]:  If we have no alternative.

    HIS HONOUR:  I don’t think you have.

    MS [M]:  Yes.

17. His Honour then delivered judgment.

18. There is no application or response by the wife in the appeal book in which she sought enforcement orders such as Bell J made on 15 June 2006.  Nor as seen, was any oral application for those orders clearly made.  Nonetheless, Ms M took no objection and when called upon to make submissions on the topic of the date for payment and the sale of the property in default Ms M merely replied, “If we have no alternative”.

19. In our view, it would have been well open to his Honour to have dismissed the husband’s application for stay simply for want of proof, without any reference to the material filed by the wife on the day of hearing.  The question arises whether, given that position, the fact that his Honour relied upon material of the wife that addressed a matter which ought have been covered in the husband’s case, constituted error.

20. Again, in the absence of any clear application for an adjournment because of the late material, as opposed to an adjournment for opportunity to remedy the deficiencies in the husband’s case, the course that Bell J took was open to him.

Should the further evidence proffered by the husband be admitted?

1. The evidence which the husband sought we receive addressed the question of his absence from court on 15 June 2006 and asserted a history, on the wife’s part, of the late provision of material.

2. The husband deposed to contrary evidence to that of the wife on the question of whether he could borrow the full amount payable to the wife.  We find some of his evidence not entirely consistent and of the nature that would invite further explanation.  It is also obviously contentious.

3. The husband claimed that some of the wife’s evidence about her financial circumstances was false.  He also deposed to the reaction of the parties’ daughter to the prospect of sale of the house.

4. Interestingly, and on the face of it, contrary to the husband’s essential proposition in support of his application for stay, he deposes:

   16.I paid the respondent wife all the money I had been ordered to pay on or about 7/7/06 by selling anything I could sell, borrowing from the bank up to my credit limit, and by borrowing further funds privately.

5. To the extent that the husband’s evidence goes to support his application for stay, all of that evidence was of course available prior to 15 June 2006.  No substantive question about a stay remains.  The question has become whether as the application was presented to Bell J he was right to refuse it.  And that question is only relevant to the issue of the correctness of the costs order.  The further evidence does not assist the answer to that question and should be rejected.

Did Bell J err in his treatment of the prospects of appeal?

1. The relevant grounds are:

   4.His Honour Judge [sic] Bell erred in finding that Appeal NA22 would fail.

   5.His Honour Judge [sic] Bell gave too much weight, or any weight, to his finding that Appeal NA22 would fail.

2. Bell J’s consideration of the prospects on appeal was as follows:

   7.Basically I have to consider, I feel, is whether in fact there is a chance that the appeal will be successful.  I have read my reasons for judgment and notwithstanding the notice of appeal which is set out before me, I doubt very much whether the appellant will be successful in the appeal and taking those matters into consideration, I dismiss the application for stay.

3. The appeal of course has succeeded.  However, that by no means establishes that Bell J made an appealable error in his consideration of the prospects of appeal.  Significantly, the notice of appeal before Bell J in June 2006 was the original notice of appeal, the grounds of which were as follows:

   1.That His Honour Justice Bell erred in finding that the large disparity in initial financial contributions by the parties was accounted for by an award of 60% in favour of the husband and 40% in favour of the wife.

   2.That His Honour Justice Bell failed to give appropriate weight to the substantial gifts to the husband by his father’s estate and by his mother late in the marriage.

   3.That His Honour Justice Bell made too great an allowance to the wife’s non financial contribution to the family.

   4.That His Honour Justice Bell gave insufficient weight to the husband’s future medical expenses.

   5.That since this matter was heard evidence has come to light to show that the wife failed to make full and true disclosure as to her property and assets.

1. We have, in allowing the appeal against the property orders, drawn no conclusions about the merits of the grounds set out above.  For present purposes, we express the view that such merit as they might have is not compelling.

2. The appeal succeeded essentially on inadequacy of findings and reasons, which was a matter falling within ground 3 of the amended notice of appeal, not filed until 15 September 2006.  That ground was:

   3.That His Honour Justice Bell failed to consider, or place sufficient weight upon, the father’s non-financial contributions in determining an appropriate loading in favour of the father in relation to s 79(4) factors.

3. That is a ground different to any contained in the notice of appeal that was before Bell J.

4. We do not consider that in his Honour’s consideration of the prospects of the appeal as framed before him, was in error.

Did Bell J err in comparing hardship and about the effect of his orders on the children, or fail to have regard to any such effect?

1. The grounds that raise these issues are:

   6.His Honour Judge [sic] Bell gave too much weight to the Respondent Wife’s hardship.

   7.His Honour Judge [sic] Bell gave too little weight to my hardship.

   8.His Honour Judge [sic] Bell failed to consider, or gave too little consideration, to the effects of his orders on the children.

2. As to comparative hardship, the findings that his Honour made favoured the wife who, as noted, was the only party to have relevant evidence before the court.  In these circumstances, no error in his Honour’s findings is demonstrated.  The position as to any effect of the orders on the children is similar.

The appeal against the costs order

1. As indicated, there were no specific grounds that attacked Bell J’s exercise of discretion in relation to the award of costs.  Having regard to the issues that were before him and their outcomes, there was clear reason for the order for costs.  We discern no appealable error.

Conclusion

1. It follows that the appeal against the costs order and the refusal of the stay application of 15 June 2006 should be dismissed.  In so far as the orders of 15 June 2006 provided for enforcement of the property orders, they have been overtaken by events.

Costs

1. We will provide for any applications for and submissions about, the costs of this appeal to be made in writing.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  24 August 2007