Halsbury and Halsbury (Stay Application)
[2009] FamCAFC 142
•11 August 2009
FAMILY COURT OF AUSTRALIA
| HALSBURY & HALSBURY (STAY APPLICATION) | [2009] FamCAFC 142 |
| FAMILY LAW – PROPERTY – STAY APPLICATION – PENDING SPECIAL LEAVE TO APPEAL TO HIGH COURT – Application for stay of orders of Full Court of the Family Court of Australia – Circumstances in which a stay should be granted – Where the case does not fall within the category of exceptional cases where special leave is likely to be granted – Where the proposed grounds of appeal are not strong – Where the subject matter of the appeal does not involved a question of public importance – Where the subject matter of the appeal will not be lost – Where the balance of convenience dictates that the stay should be refused. FAMILY LAW - STAY APPLICATION – Dismissed. FAMILY LAW - COSTS – No order as to costs. |
| Convention on the Rights of Persons with Disabilities – Article 25(b) Disability Discrimination Act 1992 (Cth) Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) Family Law Act 1975 (Cth) – s 75(2), s 79, s 94 Family Law Rules 2004 – Chapter 22 High Court Rules 2004 Judiciary Act 1903 (Cth) – s 35A, s 37, s 77U |
| Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 70 ALJR 603; 137 ALR 28 Allesch v Maunz (2000) 203 CLR 172 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 461 CSR Ltd v Cigna Insurance Australia Ltd (1996) 70 ALJR 565 Edelsten v Ward (No 2) (1988) 63 ALJR 346 Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 Grassby v R (1989) 168 CLR 1 Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd(No.1) (1986) 161 CLR 681 Mallet v Mallet (1984) 156 CLR 605 Manfal Pty Ltd (in liq) v Trade Practices Commission (1991) 65 ALJR 256 Norbis v Norbis (1986) 161 CLR 513 Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 82 Re L v Director-General, Dept of Community Services (NSW) (1996) 70 ALJR 532; (1996) 136 ALR 201 Sali v SPC Ltd (1993) 67 ALJR 515 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 |
| APPLICANT: | Mr Halsbury |
| RESPONDENT: | Ms Halsbury |
| FILE NUMBER: | LEC | 33 | of | 2007 |
| APPEAL NUMBER: | NA | 50 | of | 2007 |
DATE DELIVERED: | 11 August 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Boland & Murphy JJ |
| HEARING DATE: | 3 August 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 June 2007 |
| LOWER COURT MNC: | [2007] FamCA 1101 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Mr Halsbury appeared via telephone link |
| ADVOCATE FOR THE RESPONDENT: | Ms Halsbury appeared via telephone link |
Orders
That the husband’s application for a stay of the orders of the Full Court made 3 April 2009 is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Halsbury & Halsbury (Stay Application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 50 of 2007
File Number: LEC 33 of 2007
| Mr Halsbury |
Applicant
And
| Ms Halsbury |
Respondent
REASONS FOR JUDGMENT
Introduction
On the breakdown of their marriage in 2004 Mr Halsbury and Ms Halsbury were unable to resolve how their property, acquired during their marriage of approximately nine years duration, should be divided. Thereafter, a most unfortunate saga of litigation has ensued over the parties’ modest property. Without wishing to cause offence, we will, for convenience, refer to the parties in these reasons as the husband and the wife.
We are now asked by the husband to stay orders of the Full Court made on 3 April 2009 “until finalisation of the Husbnand’s [sic] High Court proceedings”. The Full Court orders allowed an appeal against certain orders of Barry J made 29 June 2007, set those orders aside, and remitted the parties’ competing property applications for rehearing before a judge other than Bell and Barry JJ.
A short summary of the litigation sets the scene for this application. The original property orders made in this Court were the subject of an appeal, and in November 2006, a Full Court set aside the orders made by Bell J. After a rehearing of the property dispute, Barry J made orders dividing the parties’ property, which he found had a value of $397,124.00, between them as to 82.5 per cent to the husband and the balance to the wife. To achieve this division, Barry J’s orders provided that the wife pay to the husband the sum of $54,962.00.
An appeal from Barry J’s orders was filed by the wife and heard by the Full Court (Warnick, Boland and Murphy JJ) in February 2009. At the conclusion of the hearing that Full Court indicated, in the event the appeal was allowed, it would seek to re-exercise the discretion rather than remitting the matter for rehearing. A time-table for filing of further material from each party was made. The Full Court published reasons for judgment and made orders on 3 April 2009. As the affidavit material filed after the appeal hearing was contentious, the Full Court determined, regrettably, the matter would have to be remitted for rehearing. In its subsequent costs judgment, the Full Court ordered that the husband, who was legally represented, should receive costs certificates for the appeal and the re-trial to defray his legal costs.
Prior to the hearing of the appeal against Barry J’s orders the husband filed an application for security for costs of the appeal. That application was dismissed by another Full Court (Finn, Boland and Murphy JJ) on 18 November 2008.
By application filed in the Brisbane Registry of the High Court of Australia on 18 June 2009 the husband filed, out of the time provided in the High Court Rules 2004 (“the High Court rules”), an application for special leave to appeal the orders of the Full Court made 3 April 2009. We will return to discuss this application shortly.
Both parties were self represented before us, and appeared by telephone. No material was filed by the wife in opposition to the stay sought by the husband, but she made an oral application before us that the husband’s application be dismissed.
We pause here to note that the matter was not listed before the Full Court who made the orders of 3 April 2009, due to the unforseen unavailability of Warnick J. However both Boland and Murphy JJ were members of the relevant Full Court and this Full Court.
The orders sought by the husband in the event special leave is granted and his appeal is allowed
In his application for special leave the husband set out the orders he seeks, if successful, as follows:
1.That leave be granted to dispense with the 28 day time period.
2.The Orders of the Full Court of the Family Court dated 3 April 2009 be discharged.
3.In the event of a re-exercise of discretion, that the process of adducing fresh evidence ordered by the Full Court of the Family Court on 17 February 2009 and aborted on 3 April 2009, should be completed.
4.The Wife pay the Husband’s costs in this application and in Appeal NA50/07.
As we were unsure precisely the nature of the ultimate relief sought by the husband, we endeavoured to clarify this matter with him during his oral submissions. We understand the husband’s position to be that he wishes to achieve finality of the financial dispute between himself and the wife. To that end, he submitted that if the High Court allowed his appeal:
(a)that the High Court should set aside the orders of the Full Court, and the orders of Barry J be the operative orders; or
(b)the High Court should re-exercise the discretion and make final orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”); or
(c)that the High Court remit the wife’s appeal to a Full Court for determination according to law, including if necessary, the re-exercise of the discretion by the trial Judge.
We accept if successful in obtaining an extension of time in which to file an application for special leave, and if special leave is granted and the appeal allowed, the options in (a) and (c) above are likely outcomes. As to (b), we note the form of judgment on appeal from the High Court is set out in s 37 of the Judiciary Act1903 (Cth) (“the Judiciary Act”). That section provides that in the exercise of its appellate jurisdiction the High Court may affirm, reverse or modify the judgment appealed from, and may give such judgment as should have been given in the first place (see also Allesch v Maunz (2000) 203 CLR 172 per Gaudron, McHugh, Gummow and Hayne JJ at paragraph 23; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 107 per Dixon J).
The Full Court’s reasons for judgment
In their reasons the Full Court, by way of background, explained the trial Judge’s findings about the quantum of the parties’ assets. Their Honours noted that the parties cohabited for about nine years, and there was one child of the marriage. That child was living in a shared care arrangement. They also noted that the wife was unrepresented, and had been unrepresented before Barry J.
After summarising the reasons of Barry J, the Full Court referred to the wife’s contentions argued on the appeal. The wife had asserted that the trial Judge:
· had made five errors of fact;
· had failed to place sufficient weight on relevant circumstances;
· had given too much weight to the husband’s future medical expenses; and
· had erred in including legal fees in the list of the asset pool because the fees included fees payable to the wife under a costs order, and did not take into account a liability she incurred to pay her legal fees.
The wife also asserted that the result was plainly unjust.
At paragraph 10 of their reasons the Full Court said:
We are satisfied that the appeal should succeed, because of at least one error of fact, because the treatment of legal fees was erroneous and because the result is plainly unjust.
In considering one of the asserted errors of fact the Full Court found, by reference to the transcript of the wife’s cross examination, that the trial Judge was in error in his conclusion that the wife had conceded her earning capacity was “significantly higher than that of the Husband”. Further, the Full Court was “disquieted” by the trial Judge’s conclusion that the wife would, in the fullness of time, be able to obtain employment in the northern rivers area of New South Wales as a school teacher.
In dealing with the issue of legal fees “written back”, which included fees ordered to be paid by the husband to the wife, the Full Court expressed its view the “writing back” into the pool of assets to be divided between the parties of the costs order in favour of the wife created a distortion as it caused “the beneficiary of the costs order to, in effect, bear some of the costs for which the other party is liable”. The Full Court also found error by the trial Judge in including as a liability the husband’s legal fees and not reducing the wife’s mortgage by $16,000.00 to reflect the debt for her legal costs given the trial Judge had determined both parties’ liability for legal fees should be excluded from the property pool.
The Full Court finally considered the wife’s complaint that the overall result of the orders was “plainly unjust”. After setting out the contributions of the parties as found by the trial Judge, the Full Court recorded that the trial Judge’s finding that post separation the husband had made mortgage payments was wrong (and conceded to be so).
The Full Court’s conclusions were set out in paragraphs 30 to 35 of their reasons. We can do no better than to set out those paragraphs:
30.In our view, accepting the trial judge’s finding that contributions, other than the capital contributions, were equal, and that the capital contributions, which came at various times during the relationship, mathematically were 83 per cent to 17 per cent in the husband’s favour, we nonetheless consider that his Honour placed insufficient weight on the fact that nearly half the husband’s contributions was at the very outset of the relationship and the cohabitation was for nine years, during which many and various contributions were made by each of the parties, which the trial judge assessed as of equal value.
31.In those circumstances, while we do not say that an assessment of 75/25 is outside a reasonable ambit, we think it certainly at the upper edge.
32.It is the overall result that we consider plainly unjust and this probably arises at least in part from a failure by the trial judge to consider the disparity caused by the assessment of contributions.
33.However, his Honour also supported his decision, particularly in relation to s 75(2) factors, by the observation contained in paragraph 115 of his reasons earlier set out, but repeated here:
115.I do not find it reasonable that the Husband should throw himself on the mercy of the public hospital system. If he has the ability and the finances he should be entitled to the best medical service available to save such a precious gift as sight.
34.His Honour’s observations seems to us very much a “value judgment”, of a nature which we doubt ought be relied upon in s 79 proceedings.
35.In any event, even on the facts as his Honour found them, that the wife should emerge from the marriage with 17.5 per cent of relatively modest assets is, in our opinion, outside a reasonable exercise of discretion.
Relevant legislation, rules and legal principles
Section 94(2D)(d) of the Act provides as follows:
(2D) Applications of a procedural nature, including applications:
…
(d) to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Section 94(2E) and (2F) provide as follows:
(2E) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D)
Section 94(1) provides as follows:
(1) Subject to sections 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a) a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i) under this Act; or
(ii) under any other law; or
(b) a decree of:
(i) a Family Court of a State; or
(ii) a Supreme Court of a State or Territory constituted by a single Judge;
exercising original or appellate jurisdiction under this Act or in proceedings continued in accordance with any of the provisions of section 9.
Section 94(1AA) deals with an appeal where a Judge has refused an application to disqualify himself or herself, and is irrelevant to this application.
Section 94(1) does not directly address the question of a stay of orders of the Full Court pending an application for special leave to the High Court. The power to grant a stay pending an appeal to the High Court is found in s 77U of the Judiciary Act. However, it is noted that this provision is only applicable when an appeal has been filed, but not an application for special leave (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd(No.1) (1986) 161 CLR 681 at 683 per Brennan J).
However decisions of the High Court are clear. An application for a stay pending special leave should not be made to that Court, but to the court from whose decision special leave is sought. Thus we consider this Court has power to grant such a stay as part of its implied powers to control its own processes.
Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals. There is no special rule dealing with an application for a stay of a Full Court order pending an application for special leave. It may be this is a deficiency in the rules which requires amendment.
Section 35A of the Judiciary Act sets out the criteria for granting special leave. It provides as follows:
In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:
(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:
(i) that is of public importance, whether because of its general application or otherwise; or
(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.
The jurisdiction invoked in an application for special leave has been described as “extraordinary” and the need for “exceptional circumstances” to be demonstrated before the granting of stay pending such an application are discussed in the authorities – see particularly Burgundy Royale; Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 70 ALJR 603; (1996) 137 ALR 28; Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 461; Edelsten v Ward (No 2) (1988) 63 ALJR 346; Grassby v R (1989) 168 CLR 1; Manfal Pty Ltd (in liq) v Trade Practices Commission (1991) 65 ALJR 256; Sali v SPC Ltd (1993) 67 ALJR 515; CSR Ltd v Cigna Insurance Australia Ltd (1996) 70 ALJR 565; Re L v Director-General, Dept of Community Services (NSW) (1996) 70 ALJR 532; (1996) 136 ALR 201; Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 82.
The factors to be considered by a court in the exercise of its discretion in considering a stay pending an application for special leave are explained by Brennan J in Burgundy Royale at 684 and 685 as follows:
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. That was the situation to which this Court adverted in Marconi’s Wireless Telegraph Co Ltd v The Commonwealth [No 3]. There the Court granted an order staying the operation of one of its own orders pending the hearing of an application to the Privy Council for special leave to appeal. What the Court said in that case, is applicable to this case:
‘The Court will not ordinarily grant an application of this kind unless very strong and special grounds are shown. This is a very peculiar case. The conditions are such that, on the one hand, if the stay is granted without more, the whole benefit of the action may be lost to the plaintiffs, while, on the other hand, unless the stay is granted on some fair terms, the defendants’ appeal will be nugatory. It really is a question of the preservation of the rights of the parties without disregard of the balance of convenience.’
…
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies. [footnotes omitted]
The evidence in support of the application for a stay
The husband, who is now self represented, relied on his affidavit sworn 22 June 2009. As the affidavit is short we set it out in full:
1.I filed an application in the High Court on 18 June 2009 seeking leave to appeal the decision of the Full Court of the Family Court in NA 50/07 handed down on 3 April 2009. A copy of this application is attached and marked Annexure A.
2.There have already been two trials and three appeals in this matter, and we are no closer to a resolution. The costs have been onerous.
3.I believe [Ms Halsbury] will appeal if she is unsuccessful in the next retrial. Such an appeal my [sic] well yield further retrials and appeals. I believe [Ms Halsbury] will be unsuccessful in the next retrial because of s75(2) factors – her income is increasing while I am losing what remains of my vision, and with it, my slim prospects of any employment. I have also sustained extremely high medical costs recently with the prospect of more to come, and owe my former solicitor $20,000 which I cannot pay, for the trial and appeal which left us back where we started four years ago.
4.Consequently I am seeking a Stay of Proceedings in this matter in the Family Court until the resolution of the High Court proceedings.
Given the inadmissible nature of the majority of the matters referred to in the affidavit, we have regarded those parts of the affidavit as a submission in support of the application. We propose therefore, in considering whether there is a substantial prospect that the husband’s application for special leave will be successful, to examine his application which is annexed to his affidavit. We will return to that application shortly.
The parties’ oral submissions
As we have earlier noted, the parties are self represented litigants. Neither prepared any written submissions either supporting or opposing the granting of a stay. To assist the parties, we endeavoured to highlight the factors we would consider in the exercise of our discretion.
The husband submitted that the medical aspects of his claim raised an issue of public importance – that is, how judicial officers should deal with medical conditions under s 75(2) of the Act.
He also submitted that a stay was necessary to preserve the subject matter of the litigation. He said unless we granted a stay that the matter would proceed to a retrial, effectively negating his appeal rights.
The wife disputed the husband’s assertion that a stay was necessary to preserve the subject matter of the litigation. She reminded us that the parties’ assets comprise real property and bank accounts and said that neither would disappear during the period the husband’s application was pending in the High Court. She referred us to the lengthy delays already experienced by the parties in the litigation process, and the further extended delay which would occur if the matter was not placed into a trial Judge’s docket awaiting the allocation of hearing dates for the retrial. She effectively submitted the balance of convenience favoured the refusal of the stay.
Preliminary considerations
We first note that the husband’s application for special leave was not filed in the time provided in the High Court rules. However in his affidavit sworn on 15 June 2009, and filed in support of the application for an extension of time to apply for special leave, the husband deposed to undergoing emergency eye surgery in March 2009, and a follow up operation in May 2009. He deposed to an inability to read, or read for any extended period of time, during this period. He also deposed that he was unable to afford to continue legal representation due to his inability to pay legal costs.
We accept that the husband has provided evidence of the reason for delay in lodging his special leave application. Accordingly, without in any way attempting to pre-judge the granting of an extension of time in the High Court, for the purpose of this application, giving the husband’s application the most benevolent consideration, we will treat the special leave application as though it had been filed within the time prescribed in the High Court rules.
Discussion
We propose to first consider the likely prospects of success of the husband’s appeal if leave is granted. Necessarily encompassed in that discussion are the husband’s grounds directed to his medical condition. We will, in the light of the husband’s oral submissions, consider the husband’s assertion of the public importance of judicial officers receiving guidance from the High Court in applying s 75(2) of the Act as a separate topic. We will consider the loss, if any, likely to be caused to the wife if the stay is refused, and where the balance of convenience lies.
Prospects of success of the appeal if leave is granted
From our reading of the husband’s application for special leave, we discern he attacks the correctness of the orders of the Full Court made 3 April 2009 based on the matters set out in broad terms below. We do not think it appropriate, nor are we able, on this application to give an exhaustive consideration to the proposed grounds of appeal. The principal asserted errors by the husband were that the Full Court:
· made mistakes of law and breached Article 25(b) of the Convention of the Rights of Persons with Disabilities in their findings on the topic of the husband’s medical condition;
· made a mistake of fact in finding paragraph 115 of the trial Judge’s reasons was a “value judgment”;
· failed to weigh (against an asserted “normal range”) the adjustment made by the trial Judge under s 75(2);
· erred in giving weight to unsworn evidence of the wife about the husband’s medical evidence and costs;
· did not itself have sufficient regard to the record in the court below, in particular, the husband’s evidence, and the expert evidence adduced by the husband (on costs);
· failed to give reasons for refusing to re-exercise the discretion; and
· made a number of factual findings including a finding the trial Judge had failed to consider the disparity in the parties’ financial positions after his contribution assessment, errors in the husband’s capital contributions, post separation accommodation costs of the parties.
Discussion – merits of proposed grounds of appeal
While noting the inherent difficulties faced by members (in this case of two members) of a Full Court in determining likely prospects of success of appeal against that Full Court’s orders, our overall consideration of the proposed grounds does not suggest to us the likelihood of a successful appeal for reasons enunciated below.
Before commencing our discussion of the proposed grounds of appeal and the question of public importance, it aids understanding of the argument advanced by the husband if we set out s 79(4) and relevant parts of s 75(2) of the Act. The latter section has a dual purpose – its provisions are relevant both to adjustment of property interests and to spousal maintenance applications.
Section 79(4) mandates, in considering what order (if any) a court should make adjusting the property interests of parties to a marriage, the matters a court shall take into account. It provides as follows:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Thus it is apparent after determining the parties respective contribution entitlements s 79(4)(e) requires a court to consider the matters in s 75(2), so far as they are relevant.
Section 75(2)(a), (b), (c), (g), (n) and (o) (being the matters which have some relevance to these parties) provide:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
…
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
…
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
…
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
…
We note the issue of the Convention on the Rights of Persons with Disabilities (“the Convention”) was not raised before the Full Court. Nor was the Full Court directed to any submissions as to whether those parts of the Convention, which was ratified by the Australian Government on 17 July 2008 and entered into force in Australia on 16 August 2008 had been incorporated into domestic law. Our researches reveal the Disability Discrimination Act 1992 (Cth) on the relevant commencement date of the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (“the amending Act”) incorporated the Convention into domestic law. But the amending Act – Schedule 2 Part 1, which incorporates the Convention, did not come into operation until 5 August 2009. We do not accept in these circumstances the Full Court was in error in failing to consider the Convention.
We do not accept error by the Full Court, in paragraph 34 of their reasons, in determining the trial Judge made a value judgment in paragraph 115 of his Honours’ reasons. We now set out paragraph 115 of Barry J’s reasons:
I do not find it reasonable that the Husband should throw himself on the mercy of the public hospital system. If he has the ability and the finances he should be entitled to the best medical service available to save such a precious gift as sight.
In our view, a correct reading of paragraph 115 demonstrates that the trial Judge applied a value judgment by determining that the public health system is an inferior health service to that which may be available outside that system. There was no evidence before Barry J to support such a conclusion.
We discern the husband’s complaints about the Full Court’s determination that the overall result was plainly unjust implies the Full Court, in its discussion of weight to be given to factors under s 75(2), ignored the fact of the husband’s medical condition and its effect on his ability to earn income.
The thrust of the Full Court’s determination was that the trial Judge overlooked the effect of significant disparity in the parties’ assets which resulted from his contribution assessment of 75 per cent in favour of the husband. In paragraphs 111 to 123, Barry J discussed factors under s 75(2) he took into account. Nowhere in that discussion did he consider the assets to be retained by each party as a result of his contribution assessment, nor did he assess the overall justice and equity of the orders by examining the practical consequences of the orders he proposed to make by which the wife retained 17.5 per cent the parties’ net assets.
Although the husband asserted factual error by the Full Court in respect of the husband’s capital contributions, our perusal of the reasons discloses no such findings. The Full Court set out the capital contributions as found by Barry J.
With respect to the husband, we do not agree the Full Court relied on unsworn evidence of the wife in dealing with her liability for legal fees. That liability was recorded by Barry J in paragraph 54 of his reasons (and referred to by the Full Court in paragraph 20 of their reasons). The Full Court did refer to the wife’s submission that the husband had been ordered to pay her costs of $4,336.00 for costs she had paid. Before the Full Court the husband was legally represented, and the husband’s solicitor, who also acted for him at the trial, did not contradict that assertion. In those circumstances, we detect no error by the Full Court in referring to the legal fees issue which we note the Full Court carefully explained to be the wife’s contention, not the wife’s evidence.
We discern no merit to the challenge based on a lack of reasons for failing to re-exercise the discretion. The Full Court recorded the further evidence the husband sought it should take into account on the re-exercise of the discretion (reasons, paragraph 37), and the wife’s “argumentative” material in the nature of a reply. On that basis, the Full Court found that evidence to be contentious, making the re-exercise of the discretion if not impossible, certainly impractical. The parties did not seek to adduce uncontroverted evidence of any increase or decrease in property valuations, or agreed facts about income or other relevant matters (see Allesch v Maunz, per Gaundron, McHugh, Gummow and Hayne JJ at paragraph 31). It is regrettable that they were not able to do so.
The Public Importance question
Judicial officers are regularly called on to, and do, when determining property adjustment proceedings, take into account in the exercise of their discretion evidence of ill health or other disability of one or both parties to a marriage. They are also required to take into account the income, property and financial resources of each of the parties, and the physical and mental capacity of each of them for appropriate gainful employment. That latter assessment is made against the background of a court’s prior determination of the parties’ contribution based entitlements. It frequently involves assessment of disputed expert evidence or evidence of a single expert appointed by court order.
The unique facility afforded to a judicial officer by the wide discretion, properly exercised under the section, enables a court to reach a property adjustment which reflects the myriad of relevant matters to be taken into account in the unique circumstances of a particular party to a marriage. Often that will be a marriage which has existed over many years. Gibbs CJ noted in Mallet v Mallet (1984) 156 CLR 605 at 608-609 that the discretion reposed in the Act should not be fettered by unnecessary guidelines (see also Norbis v Norbis (1986) 161 CLR 513, per Wilson and Dawson JJ at 533).
We therefore do not consider that the question of medical conditions, and the weight which should be given to such conditions, forms a special category or factor requiring different consideration to other factors to be considered under the section. While a medical condition may be the only relevant factor to be considered under s 75(2), in a particular case other diverse factors may require equal or more weight. In short, we do not regard the identified issue to be one of public importance.
Preserving the subject matter of the litigation
The facts in this case are not controversial. Both parties are the registered proprietors of their own properties in the Lismore area. Barry J found the wife’s home had a value of $340,000.00 and was encumbered by a mortgage of $233,000.00. The trial Judge found the husband’s home was valued at $370,000.00 and was subject to a mortgage debt of $40,303.00. The husband had a loan of $45,050.00 from his mother. This loan was incurred by him to pay the sum due to the wife under Bell J’s orders (later set aside after the husband’s successful appeal), and a liability for legal fees of $11,639.00. The parties’ remaining assets comprised chattels of modest value and small cash savings.
Pursuant to the orders of the Barry J (which were set aside by the Full Court) the wife was required to pay the husband $54,962.00. It is clear that, in the event the husband is successful in his special leave application and appeal, there is sufficient equity in the wife’s home to satisfy the trial Judge’s orders. Thus we accept that there is merit in the wife’s submission that the subject matter of the litigation (property adjustment under s 79) will not be lost if we refuse a stay.
The husband however argued this topic on the basis that the subject matter would be lost if the re-trial was heard and determined prior to the determination of his application for special leave. As will be apparent from our following discussion we do not accept the gravamen of that submission.
Prejudice to the respondent and the balance of convenience
There is an overlap of issues relevant to these criteria. The husband argued before us that he would incur unnecessary expense and experience difficulties if he was forced to prepare for the re-trial ordered, pending his application for special leave. He referred us to directions made by a Registrar after the period for filing an application for special leave had expired under the High Court rules. Those directions are standard directions made to ensure a financial matter is ready to be listed in a trial Judge’s docket for what is now described in the rules as the “first procedural hearing before the Judge”. He submitted he would be required to incur expensive valuation fees. We disagree. The directions made by the Registrar require the parties to file updated financial statements, and prepare a “balance sheet” of their assets and liabilities. They do not require the filing of formal valuation evidence.
The wife submitted that she is prejudiced by the lengthy delays caused by the two trials, the appeals and the unsuccessful application for security for costs of the last appeal. She asserted no prejudice would be occasioned to the husband if the stay is not granted. Thus, she submitted the balance of convenience lay in refusing the stay.
We think there is merit in the wife’s submissions. We also take into account the husband’s evidence in support of his application for an extension of time to file his special leave application. We have considered the following matters:
· the most unfortunate history of protracted litigation to date and the need for finality of the litigation;
· delays in listing in the Brisbane Registry mean it is unlikely the matter will be re-heard before mid 2010;
· the question of proportionality having regard to the sum in issue (approximately 7.5 per cent or approximately $30,000.00 based on the assets and liabilities as found by Barry J);
· that the parties’ affidavits filed for the two prior trials should only require brief updating;
· that on re-hearing the husband will have an opportunity to adduce up-to-date evidence about his eye condition, including his latest operations; and
· the husband is not precluded from bringing another stay application in the event his application before the High Court is not determined by the date of listing of the rehearing in the Family Court, or if he receives an extension of time in which to file an application for special leave and that application is successful prior to the rehearing dates.
Conclusions
On the evidence and the submissions before us, we are satisfied that this case does not fall within the category of exceptional cases where special leave is likely to be granted. In so determining we have, as best we can, examined the proposed grounds of appeal. We have rejected the husband’s submission that the subject matter of the appeal involves a question of public importance such that it would be appropriate for the High Court to determine an appeal. We have also considered the question of the loss of the subject matter of the litigation, and determined the refusal of the stay will not result in such a loss. Finally we are satisfied on weighing all relevant matters that the prejudice to the wife in granting a stay outweighs any prejudice to the husband, and that the balance of convenience dictates that the stay should be refused.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date:
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