Halstron & Halstron
[2021] FedCFamC1A 30
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Halstron & Halstron [2021] FedCFamC1A 30
Appeal from: NA - Review of exercise of power by Appeal Registrar Appeal number(s): SOA 45 of 2021 File number(s): SYC 2788 of 2016 Judgment of: STRICKLAND J Date of judgment: 6 October 2021 Catchwords: FAMILY LAW – Application in an Appeal – Review exercise of power by Appeal Registrar refusing to accept an Application in an Appeal for filing – Where the orders sought are not orders this Court can or should make in the context of the appeal – Where many of the orders sought are not relevant to the challenge in the appeal to the refusal of the primary judge to grant leave to reopen the hearing – Application dismissed – Orders made for the filing of written submissions in the event that any party intends to make an application for costs. Legislation: Family Law Act 1975 (Cth) s 94(2D)(d)
Family Law Rules 2004 (Cth) r 22.11(3)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12(3)
Cases cited: Cantrell & North and Anor (2019) FLC 93-921; [2019] FamCAFC 127
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038; [2000] FamCA 892
National Employers’ Mutual General Association Ltd. v. Waind and Hill [1978] 1 NSWLR 372
Sarti and Anor & Sarti (No. 2) (2020) FLC 93-993; [2020] FamCAFC 261
Number of paragraphs: 48 Date of hearing: 31 August 2021 Place: Adelaide by telephone link to Sydney and Melbourne Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Crumpton Lawyers Pty Ltd Counsel for the Respondent: Ms Renwick Solicitor for the Respondent: Lander & Rogers ORDERS
SOA 45 of 2021
SYC 2788 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HALSTRON
Applicant
AND: MR HALSTRON
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 5 August 2021 be dismissed.
2.Any party seeking an order for costs in respect of the application shall file and serve within 14 days a written submission of no more than five pages identifying the order sought and the reasons relied on for that order.
3.Any party against whom an order for costs is sought shall file and serve within seven days of service upon that party of written submissions pursuant to paragraph 2 of this order, a written submission of no more than five pages in response.
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 the pseudonym Halstron & Halstron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 5 August 2021, Ms Halstron (“the wife”) filed an Application in an Appeal seeking a review of the exercise of power by the Appeal Registrar in refusing to accept for filing an Application in an Appeal sought to be filed by the wife on 27 July 2021.
The application is opposed by Mr Halstron (“the husband”) and on 26 August 2021 the husband filed a Response seeking its dismissal.
The application is supported by an affidavit of the wife’s solicitor filed on the same date, and a written case outline dated 30 August 2021. The Response is also supported by an affidavit of the husband’s solicitor filed on the same date, and a written outline of argument filed on 30 August 2021.
BACKGROUND
On 28 May 2021, the wife made an oral application to the primary Judge for leave to revalue the former matrimonial home at Suburb J, which application required the reopening of the hearing. That application was opposed by the husband, and his Honour dismissed it, indicating that he would provide his reasons therefor in the reasons for judgment delivered in relation to the competing applications of the parties for property settlement.
On 24 June 2021, the primary Judge delivered those reasons for judgment, and made final orders for property settlement. His Honour set out his reasons for dismissing the wife’s application to reopen at [127]–[133].
On 21 July 2021, the wife filed a Notice of Appeal appealing from the final property settlement orders made by his Honour on 24 June 2021.
In her grounds of appeal the wife, inter alia, challenged his Honour’s dismissal of her application for leave to reopen (see Grounds 1a, 2a, and 3a).
On 28 July 2021, the wife sought to file an Application in an Appeal supported by an affidavit sworn by her on that day, seeking the following orders:
1.That the parties do all acts and things and provide all necessary instructions to the single expert, Mr O of V Valuers, to cause a valuation to be undertaken of the former matrimonial home at H Street, Suburb J (“the Property”), as at the following dates:-
1.128 May 2021; and
1.2Current time, namely the actual date of inspection.
2.That for the purposes of Order 1, within 7 days of the date of these Orders the Solicitor for the Appellant Wife shall provide to the Solicitor for the Respondent a letter of instruction addressed to the single expert and the Solicitor for the Respondent Husband shall, within 7 days of receipt of the said letter, return the letter of instruction to the Solicitor for the Appellant Wife with any amendment to the said letter and, in the event of no disagreement between the parties as to the letter of instruction, the Solicitor for the Appellant Wife shall thereafter provide the letter of instruction to the single expert.
3.That the Respondent Husband do all acts and things necessary to make the property available for inspection by the single expert.
4.That the Appellant Wife shall meet the costs of the single expert in the first instance.
5.That within 7 days of the date of these Orders, the Respondent Husband is to provide to the Solicitors for the Appellant Wife copies of any documents recording the listing sale or proposed sale of the Property for the period 1 November 2019 to the date of this Order, such documents to include, but not be limited to:-
5.1Between the Respondent Husband and Mr L;
5.2Between the Respondent Husband and FKS Pty Ltd;
5.3Between the Respondent Husband and Mr R;
5.4Between the Respondent Husband and Mr L and/or FKS Pty Ltd and/or Mr R;
5.5Documents, emails and/or agreements between FKS Pty Ltd and n Agency, Y Road, Suburb J or Mr R or QPR Suburb I;
5.6Between the Respondent Husband and any Conveyancer/Solicitor engaged by the Respondent Husband to prepare a Contract of Sale for the Property; and
5.7All other documents relating in any way to the potential sale of the Property in the period.
6.That leave be granted to the Appellant Wife to issue a subpoena for the production of documents to:-
6.1Mr R, M Avenue, Suburb W; and
6.2FKS Pty Ltd of t Street, Suburb Y.
7.That in the event that the Respondent Husband has exchanged Contracts for the sale of the Property:-
7.1Within 24 Hours of the date of these Orders, the Respondent Husband is to provide to the Solicitor for the Wife a copy of the Sales Agency Agreement and front page of the Contract for Sale;
7.2The Husband is restrained from dealing with the proceeds of sale save and except for the purposes of discharging the mortgage secured over the property, meeting the Agents costs of sale and the legal costs of sale without providing the Appellant Wife with 21 days prior written notice of his intention to deal with such proceeds; and
7.3The Appellant Wife shall have liberty to re-list the matter on 72 hours prior written notice with respect to any further Orders sought with respect to the balance of the proceeds of sale of the Property.
8.That in the event the Respondent Husband has not sold the Property, then the Respondent Husband shall provide the Appellant Wife with not less than 42 days prior written notice of his intention to offer the Property for sale by tender, private treaty, action (sic) and/or other method of sale.
9.That in the event the Respondent Husband has not sold the Property, then the Respondent Husband shall be restrained from doing any act or thing so as to further encumber the Property, transfer and/or do any other act or thing so as to affect his interest and/or ownership of the Property, other than as provided for by these Orders.
10.That it is noted that the Appellant Wife may file a further Application in an Appeal to seek leave to adduce evidence of the valuation of the Property conducted by the single expert and/or any documents produced by the Respondent Husband or on subpoena at the hearing of the Appeal.
11.That the Respondent husband pay the Appellant Wife’s costs of and incidental to this Application.
On 28 July 2021, the Appeal Registrar sent the following email to the wife’s solicitor:
Dear Sir,
I acknowledge receipt of your application in an appeal and affidavit in support.
Noting that the appeal division is a court of review, I am unclear as to the source of power that you believe that the appeal division has to make the orders sought.
If you are able to provide further information as to this, I can then convey this to the appeal division to enable the application to be accepted for filing.
In the meantime, the appellant may wish to consider whether or not she seeks a stay of the property orders pending determination of the appeal as provided for in Rule 22.11 of the Family Law Rules 2004. The stay is sought by completing an Application in a Case with affidavit in support and should be filed with the Melbourne registry by email to [email protected], noting that the registry file has been finalised and therefore the application cannot be filed via the Commonwealth Courts Portal.
On 30 July 2021, the wife’s solicitor sent a response to the Appeal Registrar which failed to answer the Appeal Registrar’s perfectly reasonable and proper query as to the source of power the Appeal Division had to make the orders sought, and for some unexplained reason, peremptorily indicated that the wife did not require a stay. That response was as follows:
Dear Registrar,
I refer to your below email sent on 28 July 2021 in relation to the Application in an Appeal and supporting Affidavit sent earlier that day for filing.
The Application is being [sic] pursuant to Rule 22.36 of the Family Law Rules, namely an application in relation to an Appeal.
The Appellant does not propose to file, nor requires, a stay of the Orders that are the subject of the Appeal.
Pursuant to Rule 22.10, an Application in an Appeal must be filed in the same Registry where the Appeal is filed.
In the event that any further clarification is required, please do not hesitate to contact me.
I look forward to hearing from you.
On the same day the Appeal Registrar replied in the only way that she could, given the unhelpful response of the solicitor. That reply was as follows:
Dear Sir,
In the absence of any further information, the application in an appeal cannot be accepted for filing.
Although the Family Law Rules 2004 provide for the process to file an application in an appeal, the applications are ordinarily limited to procedural orders in relation to the appeal proceedings such as an extension of time to file an appeal document.
In Part C of the Application in an Appeal [it] identifies that the orders sought is (sic) to adduce further evidence and issue subpoenas, whereas the detailed orders sought in annexure A go well beyond this including an order for injunctive relief.
No reference to the source of power under the Family Law Act 1975 has been provided that would enable the appeal division, a court of review, to make most of the orders sought.
In relation to the application for leave to issue subpoenas, this application is usually coupled with an application to adduce further evidence and that application is ordinarily listed on the same date as the appeal hearing (Rule 22.39). If you are seeking leave to issue the subpoenas identified in the application before the appeal hearing, a copy of the proposed subpoenas should be attached to the affidavit in support of the application in an appeal. The application to adduce further evidence must also comply with the above rule and the attached practice direction.
As indicated in my earlier email, the appellant may wish to consider filing an application in a case seeking a stay and other interlocutory orders in the Melbourne Registry, pending determination of the appeal, that may also enable the issue of subpoenas in support of such an application as provided for in accordance with the said Rules.
If the stay application is dismissed, the appellant may then wish to consider seeking an expedited appeal hearing.
If you would like to speak to me about my decision please provide me with a contact that I can call you on.
That reply, of course, comprises the exercise of power by the Appeal Registrar which is now sought to be reviewed.
DISCUSSION
A review of an exercise of power by an Appeal Registrar is by way of hearing de novo, that is, a fresh consideration of whether the application should be received for filing.
It is unnecessary for error to be demonstrated on the part of the Appeal Registrar, and this Court may take into account any material that was before the Appeal Registrar, and any further material filed by the parties.
I note that the hearing of the review application was conducted by the parties primarily on the basis of considering the power(s) that this Court has in hearing and determining an application seeking the orders that the wife was asking the court to make, and, where it has the power, the appropriateness or relevance of making those orders.
Before considering the orders sought I note that the application was drawn as an “application to adduce further evidence” (see Part C of the application), but it simply was not, and that is apparent from the orders sought themselves. It is also exemplified by so-called order 10 which foreshadows the making of an application to lead further evidence of the valuation and the documents obtained as a result of the orders being made. That of course is misdescribed as an order, and it will be ignored.
In any event I first turn to orders 7, 8 and 9.
This is not a court of first instance; it is an appeal court. Thus, those orders are not orders that this Court can or should make; they are orders for the court below, for example, in the context of seeking a stay of the orders made by the primary Judge.
As can be seen, there are injunctions sought in those orders, and it is submitted that this Court has the power to make those injunctions. In that regard the wife relies on a decision by Aldridge J in Cantrell & North and Anor (2019) FLC 93-921, and in particular at [22] where his Honour said this:
Nonetheless, I accept that a court charged with hearing and determining appeals has the incidental power to preserve the subject matter of the appeal, whether by a stay or by way of an injunction. …
The wife also relies on the fact that that passage and the surrounding paragraphs were cited with approval by Ryan J in Sarti and Anor & Sarti (No. 2) (2020) FLC 93-993 at [5] to [6].
However, the obiter dicta of his Honour in [22] in Cantrell & North can provide no comfort to the wife here.
His Honour, in exercising the appellate jurisdiction of the Family Court of Australia, was dealing with an application to stay a number of orders, including an order that a property be made available for sale.
As his Honour emphasised, the Family Law Rules (2004) (Cth), then in existence, did not give an express power to a Judge of the then Appeal Division of the Family Court of Australia to hear and determine an application for a stay of orders ([21]). However, his Honour was satisfied that the court had the implied power to grant a stay of an order where it was necessary to preserve the subject matter of an appeal, and thereby give effect to the right of appeal which otherwise might be lost ([24]).
For a reason though that is not explained by his Honour, his Honour made the comment relied on by the wife, namely, that the power could be exercised “whether by way of a stay or by way of an injunction”. However, there was no suggestion of an injunction being granted in that case, and what his Honour did was to grant a stay of the order, and no further mention was made of the prospect or the possibility of granting an injunction. Thus, that case can only stand for the proposition that the court has the implied power to grant a stay of an order made by the court below.
In Sarti, that was again a case where there was an application for a stay before a Judge of the then Appeal Division of the Family Court of Australia, rather than the application being before the Judge below who made the orders sought to be stayed.
Ryan J agreed with Aldridge J that the court had the power to grant the stay, and quoted the relevant paragraphs from his Honour’s reasons, which included the reference to “an injunction”. Again though, there was no suggestion of an injunction being granted in that case, and no basis to suggest any power in the court to grant an injunction. As in Cantrell & North, the issue was the power to grant a stay.
In that regard, I note that Aldridge J in Cantrell & North proceeded on the basis that a stay may be granted by a single Judge (of the Appeal Division) pursuant to the former s 94(2D)(d) of the Family Law Act 1975 (Cth). Ryan J in Sarti also proceeded on that basis. However, with respect to their Honours, that is not correct. The paragraph provides as follows:
94(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); …
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.
Thus, as can be seen, it only provides for a single Judge to hear and determine an application to stay an order of the Full Court, and not an order made by a Judge below.
Ironically though, that highlights the relevance of there being an implied power to order such a stay. What must not be overlooked though is that the former (r 22.11(3)) and the current (r 13.12(3)) Rules of Court provide that an application for a stay must be filed in the registry in which the order under appeal was made, and be heard by the judicial officer who made the order under appeal.
Thus, here, a possible option for the wife was to seek a stay of the orders under appeal, but that would have had to have been made to the court below. And there is of course no application for a stay before this Court seeking to invoke the implied power found to exist by Aldridge J.
In these circumstances, I propose to dismiss the application insofar as it seeks a review of the Appeal Registrar’s exercise of power not to accept for filing those parts of the application which sought orders 7, 8 and 9. I also propose to do that on the basis that if the application had been filed, those parts of the application would be dismissed for the reasons I have just outlined.
There is a further reason though to dismiss the application insofar as it seeks a review of the exercise of power by the Appeal Registrar to refuse to file the application seeking injunctive orders.
The wife submits that the injunctions are necessary “to preserve the subject matter of the appeal”. It is argued that given the significance of the property it is of “fundamental importance” that it be preserved, that if it is sold, or the proceeds of sale are dissipated, that will have a “prejudicial effect” on the wife and her appeal, and that that prejudice would be even greater if the value of the property is in the vicinity of $8,000,000 or $9,000,000. In a similar vein, the wife also suggests that there is a risk that many of the grounds of appeal, and/or success on a rehearing, may be rendered nugatory as the value of the property would be placed out of the reach of the wife.
However, none of that provides a basis for an injunction in the context of the appeal, given that his Honour found the total net assets of the parties was $16,157,790, including superannuation, plus the proceeds of sale of certain United States properties, which amount at that stage was unknown. And further, the issue that all this stems from, is the refusal by the primary Judge to reopen the hearing to allow for the property to be valued. That refusal is challenged in the appeal, but if that challenge is successful, that says nothing about what the value will be, and even if it is different than the previously agreed value, whether that will change the respective property settlement entitlements of the parties.
In any event, to establish the value as at 28 May 2021, or even now, will not demonstrate error by the primary Judge. His Honour did not refuse the application because the value may not have increased; the value of the property is not the issue in the appeal, it is the failure to reopen.
I next turn to address orders 1–4 sought in the application.
The difficulty with those orders is that if they are at all relevant to the appeal, they are premature.
The appeal challenges the refusal by his Honour to grant leave to reopen the hearing for the purposes of obtaining an up to date valuation of the property. Thus, to repeat, the value of the property is not the issue in the appeal; to establish the value as at 28 May 2021 and/or now, will not demonstrate error by the primary Judge. His Honour did not refuse the application because the valuation, if permitted, may not be greater than the agreed value. His Honour clearly set out his reasons for refusing the application at [127]–[133].
Further, the issue of the value of the property cannot become relevant, until and unless it is found, that his Honour erred in refusing the application for leave to reopen. And even then, its relevance will depend on what orders are made by the Judge who rehears the application, noting that in the appeal the wife seeks that the orders of the primary Judge be set aside and the proceedings remitted for rehearing by a Judge other than the primary Judge.
Thus, it is not open for these orders to be made at this stage of the appeal.
For similar reasons, order 5 is not an order that this Court can or should make. The documents sought do not go to the challenge in the appeal to the refusal to grant leave to reopen, and there is no basis for them to be the subject of an order of this Court for their production.
I also note that the allegation is that the husband has failed to disclose relevant documents and details of negotiations, presumably at the time the hearing of the matter took place, and when the orders were then made. However, the more apt remedy for that would be to institute s 79A proceedings alleging a miscarriage of justice, and not institute an appeal.
Thus, I will also dismiss the application insofar as it seeks a review of the Appeal Registrar’s exercise of power not to accept for filing those parts of the application which sought orders 1– 5. Again, I would also do that on the basis that if the application had been filed, those parts of the application would be dismissed for the reasons just outlined.
That leaves order 6.
This Court is able to give leave to issue subpoenas, but there are three difficulties with that application. The first is that no drafts of the subpoenas sought to be issued were provided with the application, and without that it is not open to simply make an order in terms of order 6. Secondly, it seems that the justification for seeking the issue of the subpoenas was a conversation that the wife had with a third party, and in which the third party relayed information that he had received from a fourth party, and that leads to a consideration of whether this is simply a fishing exercise, which it very much looks like.
However, more importantly, the relevance to the issues in the appeal of the materials sought to be subpoenaed has not been established (National Employers’ Mutual General Association Ltd. v. Waind and Hill [1978] 1 NSWLR 372; Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038). Again, the relevant challenge in the appeal is against the refusal to grant leave to reopen the hearing, and the material sought to be produced has no apparent relevance to that issue. To repeat, his Honour did not refuse the application because the valuation may not have increased, or because the husband may not have been negotiating to sell the property.
Thus, as sought, order 6 would not be made by this Court, and the application to review the exercise of power refusing to accept for filing that part of the application, should be dismissed.
Accordingly, the review application must be dismissed in toto. I also add that because of the way in which the hearing was conducted, if the application had been received for filing and had come before this Court, it would have been dismissed for all the reasons that I have provided.
At the hearing of the application I reserved the question of costs. Accordingly, I propose to make orders providing for the filing of written submissions in the event that any party intends to make an application for costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 6 October 2021
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