Holden and Dunlop (No.2)
[2016] FCCA 2854
•20 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLDEN & DUNLOP (No.2) | [2016] FCCA 2854 |
| Catchwords: FAMILY LAW – Application by the husband for a stay of orders for sole occupation – husband fails to appear at the hearing of his stay application without any explanation – email sent by husband (a solicitor acting for himself) to a Registrar requesting different date for hearing to be allocated to suit his own convenience – proper procedure for seeking an adjournment of a hearing – criteria for stay discussed – application for stay dismissed. |
| Legislation: Family Law Act 1975, Family Law Rules 2004, r. 22.11 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 |
| Applicant: | MS HOLDEN |
| Respondent: | MR DUNLOP |
| File Number: | LEC 432 of 2016 |
| Judgment of: | Judge Willis |
| Hearing date: | 20 October 2016 |
| Date of Last Submission: | 20 October 2016 |
| Delivered at: | Cairns |
| Delivered on: | 20 October 2016 |
REPRESENTATION
| Solicitors for the Applicant: | McVittie Legal |
| Solicitors for the Respondent: | No appearance |
ORDERS
The Application by the Husband for an adjournment of the Application for Stay is dismissed.
That Order 3 (application for stay) of the Application in a Case filed by the Husband on 17 October 2016 is dismissed.
Costs
NOTING THAT the Wife the makes an application for costs of and incidental to today’s proceedings;
(a)The Wife is to file and serve written submissions, a minute of orders sought (including reference to the relevant scale) and any affidavit relating to the issue of costs within 14 days of the date of this Order.
(b)The Husband is to file and serve submissions in reply, a minute of orders sought (including reference to the relevant scale) and any affidavit relating to the issue of costs within 14 days of being served with the Wife’s submissions.
In the event either party require an oral hearing in relation to the issue of costs, they are to indicate in their submissions, otherwise the issue of costs will be determined on the papers.
Future Directions
The Wife is to file and serve the foreshadowed Amended Initiating Application by no later than 31 October 2016.
Response to Initiating Application filed on 12 September 2016
As to the interim orders sought by the Respondent Husband filed on 12 September 2016, set out at 5b (Orders 1, 2, 3, 5 and 6), the Husband is to file and serve written submissions by no later than 7 November 2016.
The Wife is to file and serve written submissions in response by no later than 21 November 2016 to include the interim Orders sought by the Husband set out at Orders 5 and 6 of his Response filed on 12 September 2016.
Application in Case filed on 29 September 2016 by the Husband
As to the Application in a Case filed by the Husband on 29 September 2016, as to Orders sought (Orders 3 and 4) the Husband is directed to file and serve written submissions by no later than 7 November 2016.
The Wife is to file and serve written submissions in response by no later than 21 November 2016.
3
As to the Application in a Case by the Husband filed on 17 October 2016, as to Orders sought (Orders 1 and 2) the Husband is directed to file and serve written submissions by no later than 7 November 2016.
The Wife is to file and serve written submissions in response by no later than 21 November 2016.
Upon compliance with the Orders herein, the Court will allocate a date for hearing of these matters.
IT IS NOTED that publication of this judgment under the pseudonym Holden & Dunlop (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
LEC 432 of 2016
| MS HOLDEN |
Applicant
And
| MR DUNLOP |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Application for Adjournment
This matter has been set down for hearing today on the basis that it is a stay application which is time critical in that the applicant, Mr Dunlop, is to move out of a home on Monday, 24 October 2016 pursuant to Orders made on Thursday the 29 September 2016 that the wife be granted sole occupation of the former matrimonial home. As will be seen in the transcript, as the last word was said in the judgment granting the wife sole occupation, Mr Dunlop immediately advised he would be lodging a stay application and proceeded to ask when the stay would be listed. I told the husband (a solicitor acting for himself in his own matrimonial property application) that he needed to do everything he needed to do to get his appeal organised and then the Court would do what it has to do, including allocating a date for any stay application if and when that was filed. That was on 29 September 2016.
The husband also stated that he had taken very good notes, and that he would have the stay filed by the following Tuesday, 4 October 2016. Two and a half weeks later, the husband has filed an application for a stay (17 October 2016). In the meantime, reasons were published on 12 October 2016.
So there has been a delay in what was anticipated. Upon the filing of his urgent application on 17 October 2016, which is Monday this week, it was drawn to my attention, I think, on Tuesday the 18 October 2016. All of this week is a duty week in Cairns and I have done over 70 matters, and so it was always going to be difficult to find time to hear a stay before the end of the week. However, by Wednesday this week 19 October 2016 I have moved and delisted some matters to be able to hear this matter so that the parties have some certainty and have a judgment and know whether or not there is a stay.
On Wednesday 19 October 2016, the Registrar contacted Mr Dunlop to advise that his urgent application filed for a stay, would hopefully be listed on short notice, and that while his application has not yet been allocated a date, the material ought to be served without any delay. As seen on the file, the Registrar phoned and spoke to Mr Dunlop at 10.58 am and Mr Dunlop advised he had already served the respondents.
When other matters were shifted, I directed the Registrar to inform the parties that the Stay application (but not the other orders sought by the husband) would be listed on Thursday 20 October 2016 at 2:15 pm Qld time. That email was sent out on Wednesday the 19th at 2:33 pm. The email from Registrar Boyd stated as follows:
I am directed by Willis J to inform you that the stay only is listed for tomorrow at 2.15 Queensland time. Leave has been given for all parties to attend by phone. Please inform the Cairns registry of your preferred telephone numbers.
In addition to that correspondence, my associate telephoned Mr Dunlop’s office and was subsequently directed to Mr Dunlop’s mobile number and left a message to advise of the time and date of the urgent listing of his stay application.
Now, at 2:15 pm today, the Associates have contacted all of the phone numbers for Mr Dunlop and he is not answering at his office (phone ringing out) and there is no answer to calls to his mobile phone.
Having inquired of Ms McVittie solicitor for the mother about whether she had heard from the husband, I was informed that Ms McVittie had seen the husband in the Federal Circuit Court today, and she thought he left around 11am and that a colleague in her practice had seen the husband in the children’s court earlier this morning. Ms McVittie also said she received an email from the husband, Mr Dunlop.
I have since unearthed that email from the husband. I see that he wrote to the Registrar today at approximately 7:50 am to ask for the listing date and time of his urgent application today to be vacated, because he cannot organise town agents on his behalf and he is therefore required to attend at the children’s court and the Federal Circuit Court in Lismore, and therefore he is unable to appear today in this matter. Mr Dunlop has advised that next Monday at 2:15pm is convenient for him and asks that the matter be listed then.
The first thing I will say about that is that there is no reply and no one has granted an adjournment. As to the husband’s conduct in just sending in an email and requesting a change of date, in the Full Court case of Buljubasic& Buljubasic[1] their Honours Lindenmayer, Finn and Warnick JJ make reference to the proper procedure relating to asking for an adjournment. Their Honours make it very clear that the process of applying for an adjournment is not to send a fax or an email to a Judge and ask for an adjournment and assume that you have it. Their Honours noted :
It is ordinarily improper for litigants to seek to communicate with the trial judge by sending a facsimile or other communication to the Court or a registrar. A litigant seeking an adjournment or extension of time in respect of a matter listed for hearing must either appear in Court on the listed date, or send a representative to make a proper application for relief.
[1] [1999] FamCA 474.
The very important point being made by their Honours is that the granting of an adjournment involves an exercise of judicial discretion. It is not an administrative decision done by a public servant, and it involves weighing of all of the issues for both sides. The other thing – the manner in which Mr Dunlop has gone about this is entirely improper. Having checked today, I can say, that there has been no further correspondence from Mr Dunlop by phone or facsimile to the Registrar, or the Court or my Associate today to see if the adjournment he sought to a date convenient to him has been granted.
I have looked at the reasons the husband is asking for an adjournment and it seems to be that he cannot find town agents to act on his behalf in his matters in the Federal Circuit Court in Lismore and the Children’s Court. My view about that is then, if that were so, he ought to have organised for someone to appear on his behalf to say that he could not attend and ask for an adjournment. That has not been done and in some ways I am not surprised because I am now satisfied, having spoken to both Courts, that Mr Dunlop was not caught up and not engaged on the matters that he said prevented him attending at 2:15 pm Queensland time by telephone (3.15pm NSW time).
Whilst waiting for Mr Dunlop to appear at this hearing today, I have heard and had inquiries made by my associate to the Federal Circuit Court sitting in Lismore rely upon but do not repeat the evidence provided of phone calls to Judge Jarrett’s associate and have noted Mr Dunlop’s matter starting at 10:16 am and concluding at 10:46 am New South Wales time, which is an hour ahead of Queensland. Similarly, inquiries to the Children’s Court Registry in Lismore have resulted in my associate being advised (as per my associates advice noted earlier) that the Husband only had a couple of mentions there this morning, that he was very briefly in that Court that morning before going to the Federal Circuit Court and he was certainly gone by morning tea, which they had early this morning and that he would have been gone, certainly, by no later than 10:30 am. Even allowing for some flexibility, I have fairly precise times.
Even if Mr Dunlop had anticipated that he would be tied up, and I do not understand how a couple of mentions in the Children’s Court in Lismore listed early in the morning, would have in anyway featured in a decision not to appear in this Court at 2:15 pm, which is 3:15 pm in New South Wales. Even if Mr Dunlop had anticipated that the matter he was in in the Federal Circuit Court would have taken longer, the fact is that it did not. I, therefore, am not satisfied as to the reason put forward by the husband, (ie that he would be detained in other courts) for not being here today to prosecute his own application. Noting the inappropriateness of the method of asking for an adjournment, the husband has not contacted the Court to find out if his requested adjournment has even been granted. It seems cavalier to assume that he will have what amounts to an urgent listing put off to other dates to suit his convenience and to nominate a time that suits him. Mr Dunlop seems to be confusing his roles here too. In the Federal Circuit matter before the Court at 2.15 today, Mr Dunlop is a self-represented litigant.
Mr Dunlop in my view, is showing a great lack of respect to the work of the Federal Circuit Court and to the other party who have prepared for this hearing, which is after all, his application. I have also had consideration to the position of the respondent wife to this, and her solicitors asks (having waited 2 hours to try and locate Mr Dunlop) that if I am not minded to dismiss the application, that I hear it. Ms McVittie had an agent call around to the husband’s office this afternoon only to find it locked up. The Court time for the whole afternoon has been wasted. It is now 4:50 pm.
There have been no phone calls, still, from Mr Dunlop, who has his work phones going unanswered, not answering messages left on his mobile telephone or text messages sent to him by the wife.
I am mindful of the High Court case in AonRisk Services Australia Limited v Australian National University[2] in which their Honours stated that in asking for an adjournment, ordering the defaulting party to simply pay the costs of the other side to address any prejudice is not always an answer, and that a Judge should factor in the irreparable element of unfair prejudice in unnecessarily delaying proceedings, along with the waste of Court time to the public, the lost opportunity for other litigants, along with overall waste of time and the public interest in the proper and efficient use of public resources. In this Court, I factor in the heavy listings and workload and that other families could have used this Court this afternoon. In fact I delisted two matters set down for hearings this afternoon, specifically to make way for this matter, as they did not have the same degree of urgency but had been listed for months.
[2] [2009] HCA 27.
So there has been a gross amount of waste of Court time and that will not be accommodated by an order for costs, even on an indemnity basis.
Ms McVittie asks that I either dismiss the stay or deal with it. I will not dismiss the application for a stay outright, as I could do given he has not appeared to prosecute his own application, but I will hear from the respondent and also have regard to the material filed by Mr Dunlop set out in his application in a case on 17 October 2016 and his affidavit. The only issue that is listed before me today is Order 3, the stay application. There are other applications, in this application in a case of the husband, that I disqualify myself, on the grounds of actual bias, and secondly of perceived bias. Order 3 seeks that the orders of the Court made 29 September 2016 be stayed until the respondent’s appeal is determined.
Application for Stay
I have already given reasons today as to the circumstances in which I find myself hearing this matter. There is an application for a stay before me. The husband’s material is filed on 17 October 2016, an application in a case and affidavit. It arises from orders I made on Thursday, 29 September 2016 when I made orders that the wife be granted sole occupation of the former matrimonial home. The husband was given until Monday, 24 October 2016 to vacate the premises. The wife is to assume responsibility for payment of the mortgage and rates with respect to the home upon assuming sole occupation.
By way of background, I heard the application for sole occupation on 15 September 2016 by telephone from Cairns, though the parties had been on stand by for the allocation of a date for the proposed interim hearing since 5 September 2016, when the parties both appeared before me in Brisbane when I was sitting there as a relief judge. As can be seen from order 1 of the orders made on 5 September 2016, the wife requested a hearing date for her interim application for sole occupation. The husband was present at that mention and I indicated then, I would allocate a date for that hearing, noting that I was a visiting judge and that the husband, who was a solicitor who practises in (omitted) from (omitted) and who is acting for himself in this matter, put forth to the Court that the he had a conflict with every judge in Brisbane.
There was a delay, initially, because the first return date was August 2016 and it was listed before another Brisbane judge and then there seemed to be a conflict with that judge. Ultimately, as a visiting judge, the matter was listed before me.
After, I made standard orders for a valuation on the legal practice and the house and for the husband to file his material. As I was uncertain as to whether the interim hearing would be listed before another visiting judge or myself, I advised the parties that I needed to consult with the coordinating judge. I made, however, specific reference to the application being listed on a date to be allocated and that telephone appearances would be organised if that was appropriate for the sole occupation application foreshadowed (as can be seen in orders and notations of those orders).
Therefore it was no surprise that this application was then listed before me, by phone. As will be seen before in the reasons given in the initial judgment to grant sole occupancy to the wife, even before I got to deliver the judgment, on the morning that the judgment was to be handed down my attention was brought to an urgent Application in a case sent in for filing by the husband late the afternoon before, requesting that before I handed my judgment down on 29 September 2016 that I urgently hear his application in a case before giving my reasons.
The husband’s application in a case was to reopen the sole occupation hearing because he said there was more information available that the Court was not aware of when it heard the matter, namely, that the wife and the children would now be homeless after a certain date, and or that the wife does have accommodation that she did not let on earlier to the Court namely living with her parents. The husband contended that this was a material fact and that the wife was now going to live with her parents, contrary to what was said by the wife at the first hearing on 15 September 2016.
As set out in my judgment of the 29 September 2016, in order to be able to proceed to hand down the judgment that was ready to deliver on the morning of 29 September 2016, and without wishing to have even further delay, and noting that the wife had to be out of her current rental accommodation by the 30 September 2016 and thereafter was staying with her parents until either the reasons were handed down, or she could find other accommodation and the importance of judgment being delivered in keeping with prioritising the interim hearing, I granted the husband leave to re-open, heard the husband’s submission and then the wife’s in relation to the husband’s urgent application.
As the wife had not had any opportunity to prepare any response material to the husband’s urgent application in a case, I asked Ms McVittie what she wished to do. She didn’t wish to have a delay and said that their answer to the husband’s submissions was quite a simple position which was all encompassed in their letter dated 28 September 2016 to the husband (annexure D) now part of the husband’s material filed by leave on the 29th of September 2016.
The wife’s letter at annexure D of the husband’s material was written to the husband, in reply to his query, which arose as a result of an email sent by Ms McVittie on behalf of the wife, to the Court to say, “When is it likely that the judgment will be handed down? Our client has made alternate holiday accommodation but if the judgment isn’t down by the 30th, she’ll have to, after a certain date, perhaps move in with her parents until such time as a decision was handed down,” or words to that effect.
I asked Ms McVittie if she wanted to just put the wife’s reply in an affidavit to accord the wife procedural fairness and an opportunity to file some material to accommodate the husband’s urgent application.
The matter was stood down and, as we will see in my reasons for judgment of 29 September 2016, although the wife filed an affidavit of only six paragraphs re-iterating what was in her letter, when the matter was initially called back on, the husband said he had not read it. Then the matter was called back on after, I think a further 15 or 20 minutes, and the husband said he still had not read it and was not ready to proceed.
The husband was then given about an hour and a half to read a 6 paragraph affidavit (one and half pages) and when the matter was called back on, the husband said he still had not had time to read it and formulate submissions in reply. I considered that the wife’s affidavit simply confirmed what was in the annexure D attached to the husband’s affidavit namely the wife was renting a holiday rental; and that the accommodation she was in could be extended; and that if the decision of the Court was delayed, the wife would have to move into her parents’ until the decision was handed down.
In any event, after then waiting for hours for Mr Dunlop to read the 6 paragraph affidavit and formulate whatever submissions in reply he allegedly wanted to make, (and technically, that could have only been on the law) noting that the husband made submissions first as the applicant in his urgent application, I then refused to adjourn the matter further as the husband requested, and proceeded to hear, in full, all of their submissions about the wife’s application for sole occupation. I then, having factored in all of those submissions, had given reasons.
Immediately at the conclusion of the hearing, the husband indicated he would be lodging a stay and asked me when the stay would be listed. I told him it would be listed once he attended to what he had to do.
The husband said he had good notes and would be filing that by Tuesday the following week, 4 October 2016. Published reasons were sent to the parties on 12 October 2016. Two and a half weeks later and seven days before he was to vacate the property on the 24th of October 2016 the husband on Monday the 17th of October sought to file an urgent Application in a case which went to the Registrar, seeking various orders including that the orders of the Court made on the 29 September 2016 be stayed until the respondent’s appeal is determined.
The application in a case with its accompanying affidavit has been sent to Cairns to allocate a time, clearly needing to be heard in the four remaining work days. There were over 70 matters listed. I determined, though, that I could hear the matter today (Thursday) through taking the step of delisting other matters, in order to have these parties know what they were doing by Monday 24 October 2016.
The Law
In turning to the principles then for a stay application, I adopt the submissions of Ms McVittie. She quotes the Full Court decision of Aldridge & Keaton[3]:
“In looking at the principles for a stay, the decision to grant an appeal against orders is discretionary in nature.”
[3] [2009] FamCAFC 229.
The matters which the Court ought to take into account in exercising that discretion are actually set out in the Full Court decision of Trahn & Long (No. 2).[4] Their Honour’s Warnick, Boland and Dessau JJ, in that decision delivered on 11 December 2008, stated the following at paragraph 38 when having regard to the principles that were relevant for the trial judge to consider when determining a stay application, that is:
“These principles, both in the general law and in respect of parenting proceedings, are well settled. See The Commissioner of Taxation of the Commonwealth of Australia & Myer Emporium Limited [1986] HCA 13 at 230; Alexander and Cambridge Credit Corporation 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments [1986] HCA 84; and other authorities.”
[4] [2008] FamCAFC 194 at 38.
And it continues:
“The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included 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 special or exceptional circumstances; a person who has obtained a judgment is entitled to the benefit of that judgment; the 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 the stay; some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case; the desirability of limiting the frequency of any change in a child’s living arrangements; the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and the best of interests of the child the subject of the proceedings.
I note that in a later Full Court decision, Aldridge & Keaton (Stay Appeal),[5] delivered seven months after Trahn & Long and with a differently constituted Full Court, Bryant, Bowen and Crisford JJ made precisely the same comments regarding the relevant issues for a Court to consider in exercising the discretion as set out in Trahn & Long.
[5] [2009] FamCAFC 106.
In looking at the applicant husband’s case, his material and submissions, he submits that if the orders are made for the wife to have sole occupation, this will mean the husband will be homeless. The husband asserts that the wife has located alternate accommodation at the home of her parents. The husband says she can stay with her parents until the property proceedings are finalised. The husband argues that he will suffer hardship if orders are not stayed. The husband says if the stay is not granted, then the appeal would be rendered nugatory as he will be out of the home and homeless whilst his appeal is ongoing. I note the grounds of the appeal and I will go through those.
I have heard the submissions of Ms McVittie who has quoted Aldridge & Keaton. Ms McVittie says the husband has not provided a proper basis for the stay and as to the submission that he cannot obtain accommodation, the husband has not provided any evidence that he will be homeless. As to the issue that the husband needs to stay in the home because he has suffered two grand mal seizures, Ms McVittie says there is no medical evidence of any kind that the grand mal seizures would occur or not occur in the new accommodation or the old accommodation.
Ms McVittie submits that the wife is entitled to move back into the house as ordered by the Court, the judgment is in her favour and that she should be able to do so after 24 October 2016. The wife is entitled to the judgment and that the judgment is correct. Ms McVittie has looked at the grounds of appeal and says that the grounds of appeal are not compelling and she has no reason to conclude, as the husband does, that the appeal will be successful. She submits that the mere filing of an appeal is insufficient and does not grant a stay and that the appeal has not been even allocated a date yet.
Ms McVittie submits there is no material before the Court as to when the appeal will be held and that waiting for the appeal and then the decision in the appeal, could in any event, leave the wife in limbo for a significant period of time.
As to the bona fides of the husband regarding the appeal and the application for a stay, Ms McVittie submits that the stay has not been brought for any reason other than the husband wants to punish the wife and destabilise the children for whatever reason of his own, whether he wants to have them living with him or have them removed from the wife, both of which is in the material by the husband, and that it is unfair to the wife on weighing up the balance of convenience - it will be grossly inconvenient to the wife if she is not able to move in. Ms McVittie contends that weighing up whether the appeal would be nugatory, that the prospects of success are not great and that the wife seeks to retain the property, the husband does not, the wife seeks to buy out the husband, the husband does not. As to the appeal point that the Court erred in considering the needs of the children, Ms McVittie submits that the Court was quite entitled to consider the needs of the children and their stability and that the application should be dismissed.
Turning to the husband’s case, and putting the husband’s case at its highest, he asserts in his material that if the orders are made for the wife to have sole occupation, this will mean the husband will be homeless. As I have said in the judgment, and as Ms McVittie submits, there is no evidence before the Court that there is no accommodation for a single person in the whole greater area of (omitted) or (omitted) or (omitted).
The husband at paragraph 4 of the material filed in support of this application seeks to introduce new hearsay evidence which is that he has made inquiries with a number of real estate agents this week and that there is nothing suitable. His material was filed on Monday the 17 October 2016. The availability of other accommodation for the husband was raised by him in a similarly unsatisfactory way at the hearing before me on 15 September and again on 29 September 2016. I did not accept then and I do not accept now, generalisations and hearsay evidence as proof of this sweeping generalisation.
I have already noted in the judgment that the husband asked the Court to accept this proposition at the initial hearing however, he would not concede that if, in fact, he was to be homeless, then that position would equally apply to the position of the wife and children. As seen in my judgment, in denying that this would be so, the husband said the children would not be homeless because they can move back in with him (see paragraphs of the judgment in relation to sole occupation, being appealed 113 through to 118 of the judgment).
I have also noted in the judgment that the husband is the only person who keeps making reference to the word homeless. In paragraph 114 of the judgment, I refer to the husband asking the Court to infer that the wife must be homeless after her holiday rental ran out and I stated in paragraph 115 that there is no evidence that the wife is going to be homeless, nor is there any evidence that the husband will be homeless.
The husband asserts that the wife has located alternate accommodation at the home of her parents. That is not so. The wife said that she will have to stay with her parents until either the decision is handed down or she finds alternative accommodation.
I should just go back a step and say that in relation to this proposition that the wife will be homeless, I referred to the husband’s affidavit filed by leave on 29 September 2016 and to his annexure A which is an email written by him to Ms McVittie in response to her email simply asking the Court, when is the decision coming down and noting that the wife will have to move out of what turns out to be her holiday accommodation and into the wife’s parents’ home until the judgment. The husband writes:
“I refer to your email communication to the associate of Wills J today. Your email seems to imply that your client has not arranged alternative accommodation for the children as at Friday 39. Can you confirm if this correct? If so, I am deeply concerned at the possible reaction of FACS. Is your client so reckless and poorly advised that she is prepared to risk the placement of the children with us by putting her own wants ahead of the children’s needs? Would [sic]obtain instructions and advise as a matter of urgency. If I do not receive a reply by 12 pm tomorrow I will have no alternative but to update FACS as the current situation so as to allow for the possibility that the children can be placed with their father rather than FACS removing them to parts unknown when they become homeless as a result of your client’s actions. I will not allow your client’s mental health and inability to make considered decisions to hurt the children. Regards, Mr Dunlop.”
The husband’s position in this matter is to make an inference (with no factual basis) that the wife is homeless, then to build on that inference to say that he is going to inform FACS of the wife’s homelessness and therefore the children will come and live with him. He has already filed another application in his property response documents (which were all filed late, contrary to the rules, and not even filed on the first return date with the husband relying on an excuse that he is a (omitted) solicitor and he was stuck in a difficult matter in Federal Circuit Court the Friday before the first return date) that he wants the department to intervene and the children to live with him.
The husband now asserts that the wife has located alternate accommodation at the home of her parents, and that she can live there. Again, this is just arguing what has already been raised by the husband, once at the first hearing on 15 September 2016 and then again, in his application for re-opening when the husband was given an opportunity to make even more submissions about his belief that the wife and children would be homeless when her holiday accommodation ran out and now that she found her permanent accommodation with her parents and three children. Both propositions being an inaccurate interpretation of the actual evidence. This is all dealt with in the judgment.
I have noted in the judgment that the wife found accommodation for herself and three children when she was told by the husband to leave the house. The husband now asserts that the wife can stay with her parents until these property proceedings are finalised (not until the appeal is heard) but again, this is just re-arguing what was his position was at both hearings (see paragraph 120 of the judgment). This has all been considered and addressed in the exercise of my discretion, as can be seen in the judgment.
The judgment observed that the husband makes contradictory submissions on this issue, setting out in his material that the wife’s parents are elderly and in poor health, and then contends that the wife and three children with special needs can all move in with the wife’s parents (see paragraph 120). This is the third occasion that the husband has pressed for the wife to move in with her own parents permanently until the property proceedings are heard
I have noted that the wife has never suggested, as opposed to the husband’s submission that she is to move in permanently with her parents.
As to hardship, the husband says he will suffer great hardship if the orders are not stayed. There is really nothing else in his affidavit accompanying that statement, but I assume that he refers to all the matters he has referred to.
Hardship in itself is not a stand alone factor identified for the Court to consider under the relevant principles in exercising its discretion to grant a stay. However, in exercising my initial discretion, I took account of the relevant considerations as set out in a variety of cases such as Dees & Dees[6] which included general matters of convenience, the means and needs of the parties broadly defined, and the converse aspect of hardship. I have noted the husband’s position regarding his own hardship.
[6] [2010] FMCAfam 682.
I also accept the submissions of Ms McVittie today that there would be hardship caused to the wife and children if they are not afforded the opportunity to move in to what is more permanent housing, rather than staying in limbo, waiting for the appeal. The husband also says in his material that if the stay is not granted, then the appeal will be rendered nugatory as:
“I will be out of the home and homeless whilst my appeal is ongoing.”
I do not accept that the appeal will be rendered nugatory. This is not a situation where the house is to be sold and that the husband wishes to retain it and that he will be deprived of that opportunity. The husband wants the property sold. It is not a situation where his interest is to be transferred to a third party, never to be returned to him. The house will remain as it is, standing as it is, and the order is for the husband to vacate the premises. If and when this appeal is heard, and the decision is set aside, the wife will no longer have sole occupation.
And the husband will have the opportunity to move back in. If the wife moving in as permitted per the orders means that the husband has to move out and then move back in again, that is not as inconvenient as the wife having to find other, different, accommodation or remain living in what are cramped conditions for herself and three children, living with her parents until leave to appeal and the appeal is heard and determined. The wife has three children in her care, all with special needs.
I have already decided that on balance, and noting all of the issues referred to in my judgment and the wife’s current circumstances and that of the children and that the wife is the only person who wishes to remain in and retain the house permanently (whereas the husband is very keen to sell it, as he indicated to the Court on the first date, when he was already having discussions with the real estate agent, and as he indicated to the Court, again (seemingly disregarding the wife’s position) at the interim that the wife should move in with him and they should get the house sold and it would be sold within a week.)
I am still of the view that the needs of the wife and children are considerable and that their opportunity to live in the former house, as referred to in the judgment and as is still the situation today, is a significant consideration and outweighs any inconvenience to the husband of having to move out and then perhaps moving back in. The greatest inconvenience is to the wife, who cares for three children having to do that, and she is, if it occurs prepared for that eventuality inconvenience if it turned out.
The issue as to whether the wife would have to move out and the husband move back in, rests on the strength of the appeal. In turning to the grounds of appeal, and doing the best I can to adopt an objective position, as a judge does in hearing a stay of their own decision I will turn to the Grounds of Appeal: Ground 1, reads:
The judge aired –
spelt a-i-r-e-d, which I think means “erred”:
…by taking into account irrelevant matters. Namely, the needs of the children, such children not being subject to the jurisdiction of the Court.
I have set out in my judgment the basis of the law as I understand it, and I have made reference to the power being exercised by the Court in this application and that I am not exercising under Part VII of the Family Law Act in relation to children. I did not accept and still do not accept the principle that the husband presses for, that under the Court’s power, in exercising the injunctive powers in section 114 when exercising discretion as to whether to issue the injunction sought that the wife is to have sole occupation and the husband is to provide vacant possession, that the Court is restricted and must ignore, as the husband put it, the existence of the children. The husband submits that for legal purposes, these children do not exist.
In that respect, I do not accept that the appeal on this ground is, “apparent”, as the husband submits saying he will have substantial success.
The next ground is that the judge erred in procedural fairness by failing to grant an adjournment on 29 September 2016. The husband’s adjournment request is referred to in my judgment, commencing at paragraph 1 through to paragraph 26. I rely upon those paragraphs but do not repeat them all. To me, this ground, again, seems somewhat misconceived. The husband, essentially, was asking for an adjournment to think about and then make more submissions (in addition to the submissions he made initially as the applicant in the application to re-open the interim hearing for sole occupation) which amount to submissions in reply to his submissions. The husband was given more than two and a half hours to read a six-paragraph affidavit, a reading of which will show it to be a very simple affidavit with short sentences confirming what was already in the wife’s letter attached to the husband’s affidavit at annexure D.
I consider that the requests by the father for more than two and a half hours – in all, (he probably had two and three quarter hours) to read an affidavit and then given an opportunity to say if he wanted to say anything more was adequate. The husband had actually, once he ran his interim urgent application to reopen, had the opportunity to say everything he wanted to say. He was the applicant. Technically he does not get to go first as the Applicant, and then also have the last say other than to raise a point of law.
The affidavit filed by the wife was afforded as she had not had any time to file any material to the husband’s unsealed interim application sent to the Court late the afternoon before the judgment was to be issued. The letter of the wife, and her affidavit, stated very simply that the wife had holiday rental, and that if the judgment was not handed down by the 30 September 2016, she would have to move into her parents until the decision. There was never any suggestion that she would be homeless. And I made it clear that that was an improper inference drawn by the husband. And I said to the husband during his submissions on 29 September 2016 inferences had to be based on facts, and there were no facts to suggest that at all. That may have been one of the times when the husband told me that I was not to interrupt his submissions until he was finished.
It is a distortion of what has occurred to suggest that the wife introduced new evidence and the husband did not have a chance to reply or was taken by surprise. The husband had made his case. He got to go first as the applicant. He does not get to go first and last. The time given to him on that day, in my view, was sufficient, and I would not grant a further adjournment for him to mull over what further submissions he would make in response to the six-paragraph affidavit.
As I said, the husband complains elsewhere to being interrupted, and he has mentioned in his material that the judge interrupted his submissions. And to that, if that is part of the reason for him wanting this stay (or ground of appeal), I would say that if the husband is not aware of the concept of a judge interrupting submissions to seek clarification on the law or a proposition being put forth, that this procedure is absolutely par for the course. It has been a process in courts, and particularly busy courts, for years. It is not new or improper in a modern court for there to be robust discussion between the bench and the bar table, and this is especially, at first instance courts like the Federal Circuit Court with a huge load of work.
In the decision of Helbig & Rowe (No 2) [2012] FamCAFC 174, a decision of Coleman J, makes reference to this very point. His Honour stated words to the effect that there can be very many robust discussions between bench and bar, and that an independent person coming to the Court might be surprised as to the robustness of those discussions, but that does not indicate prejudgment or that a judge does not bring an independent mind to the decision. There is nothing improper about that. Justice Coleman makes reference to the fact that this is particularly so in the Federal Circuit Court with high-volume cases and limited time to hear them. Justice Coleman also stated that with the huge workload of the modern Court, that judges do not have to sit “sphinx like” until the last word of the last submission is made. I have taken account of this point in the husband’s material.
I have also had regard to what is mentioned in his material, that the matter (being the initial interim application for sole occupancy) got called on urgently and he got only a day’s notice and therefore he did not have a chance to give his proper attention to the submissions. This is another inaccurate contention by the husband.
As I have already referred to, on 5 September 2016 in Brisbane at the first return date, it was very clear that there was to be an interim hearing. It was simply the date that was not sure. And I made, as can be seen at Order 11, specific reference to there being an interim hearing date being allocated. I made specific reference to the possibility of it being made before me by phone, and that they would get alerted to a date. Order 11 reads: The interim application for sole occupation by the Applicant is to be listed for an interim hearing on a date to be fixed (if possible prior to 30 September 2016). This matter should be listed before Judges other than Brisbane Judges as the Respondent says he has appeared in his role as a solicitor before all of the Judges in the Federal Circuit Court of Australia in Brisbane.
The Court also contained three notations, the third being The court notes that the Court will consider the possibility of the parties (if they wish to) appearing by telephone at the interim hearing, once it is determined which Judge will be allocated the interim hearing.
It was always the case that the wife wanted the interim application heard as soon as possible because of the date her current rental accommodation was expiring (30/9/2016). The husband made submissions at the time that the Court ought not acquiesce to the wife’s demands and that she had left her position too late and should not be holding the Court to ransom. I factored all of these issues into my initial decision. I have had regard to it (again noting it may be a ground of appeal by the husband) at it is referred to in his affidavit, but not set out as a ground of appeal. The parties knew they were to be on stand by for the actual hearing date of the foreshadowed interim application. The husband had the wife’s material sometime in early August and knew it contained the wife’s interim application for sole occupancy.
The husband also says that I erred in not taking into account the husband’s medical condition. The judgment shows specific reference to the husband’s medical condition at various points in the judgment. I ultimately concluded that there was no medical link made between his condition and whether that would be better or worse or the same if he had to move out of the home or stay. The husband’s condition was, therefore, taken into account. There is no medical evidence put forth by the Husband in this regard.
The other ground of appeal is that that judge erred by considering disputed facts to be determined as if after a final hearing. As the judgment will show, I have canvassed both positions in the judgment. It is necessary when considering the positions of both parties in such an application to understand the position of each of the parties and to take account and consider what might be disputed facts. Findings have not been made. The considerations for exercising the discretion do not require the Court to ignore disputed facts. The Court has not made findings.
I have made reference to the fact that, in fact, many of the contentions and the evidence put forward by the wife were specifically not denied by the husband. He adopted a broad-brush approach, being very selective about what he denied. And I challenged the strategy of the husband for doing that, when he had every opportunity to deny outright many matters, including his drinking issues, which he did not do.
In terms of the other ground of appeal, that I failed to give weight to the respondent’s submissions concerning the conduct of the applicant in not attempting to find accommodation. The reasons are set out over 34 pages and, in my view, are comprehensive and have canvassed many issues in my exercise of the discretion. It is not necessary for me to list every single matter specifically that I have taken into account, but I have canvassed all of the issues that were relevant to the exercise of my decision.
Ground 6 of the appeal, the husband says the Court failed to apply the proper legal test, namely, “What is the proper order to be made in the circumstances”. I have set out the law at length in the reasons, and the criteria have been addressed.
Overall, therefore, looking at the grounds of appeal, which is a matter for me to consider in a stay, I am of the view that the appellant has significant hurdles in seeking to have the orders overturned. As to the bona fides, this matter now looms a little larger than it might have if the husband had turned up to his own application.
In looking at the husband’s appeal, it has not been formally filed. There is no date listed for any return date. It is an unsealed document. The husband has not attached a copy of the orders to his affidavit. He has attached it to the application in a case. I cannot see that he has actually attached it to his appeal. The notice of appeal, simply, is noted as an annexure. There are no dates at all. There is no evidence of a request on this for a hearing with priority or an expedited hearing.
At question 8, he says he is appealing all of the orders, and I have been through those. I note also that he has not sought leave to appeal, in relation to the appeal which is not a children’s matter, but rather an injunction. These are property proceedings. I consider the husband will need to get leave to appeal before he even lodges the appeal, however, he has not sought this on his current application.
I have tried to make inquiries through the Principal Registrar about any dates for appeals, and the most that I could determine is that it could be some time yet before the matter is even listed for leave to appeal. There is no indication at all from the husband as to when this document was filed – if it is, in fact, even filed.
I observe that the husband delayed earlier on the first return date about filing any response at all to the wife’s application. He has now filed orders in another application in a case, filed on the 29 October 2016, seeking to set aside even procedural orders for valuations and the cost being shared, thus creating more delay.
The husband has delayed for two and a half weeks in lodging this application, knowing full well that he is to move out on the 24 October 2016. He has known since that date he ought to organise other accommodation. He has raised the issue of the wife and children being homeless in an email and proceeds to say, as Ms McVittie said, that either the children should be living with him, therefore, or that they, as if they are some sort of commodity, will be returned to the Department.
The husband has sought to reopen the interim hearing for the sole occupation application, on the day the judgment was to be delivered, and on an urgent basis. It was intended that the judgment be delivered at 10 o’clock however, the matter continued throughout the day on and off for hours, with the father refusing each time to say that he had fully read a six paragraph affidavit and was ready to proceed.
It is not the case that the husband had 24 hours beforehand to get his submissions ready for the wife’s application. He knew back on 5 September 2016 and earlier when he was served with the wife’s application in August, that there was an interim application for sole occupation.
And the events that have happened today, where the husband has written in saying in response to the matter being listed urgently, that it does not suit him, he is in two other courts, and he requests that the matter be put over to the following Monday, being the day that he is to move out of the home and provide sole occupancy. I have already canvassed the inappropriate method of asking for an adjournment and that the husband was wrong to conclude that the matter would be moved to suit his convenience without any more action on his part. He never received any reply to his request. That means the adjournment was never granted. The husband knew this.
It is now quarter to 6 Queensland time. There has been no response to the phone calls and texts to the husband. I have made reference to the Court’s inquiries as to the alleged reasons the husband gave for not being able to appear, which have not come to fruition.
I have satisfied myself from inquiries with the Federal Circuit Court in Lismore, through Judge Jarrett’s associate, and the Children’s Court in Lismore through my associate speaking to the Court, that the husband went there first thing this morning. He had a couple of mentions and was gone before morning tea. He then went on the Federal Circuit Court, where his matter resolved, and he had left the court by the time I referred to, 10:46 am Lismore time.
Even allowing for the improper method of asking for the matter to be re-allocated to another date to suit him, effectively, whilst the husband might have anticipated that he could not make it, in fact he was free of his Court appearances during this morning and was well able to make his hearing. So it is fair to say that I have some reservations about the husband’s bona fides in lodging the appeal.
I have taken into account all of the reasons referred to including that the wife has a judgment in her favour and her circumstances. I am not satisfied that the appeal would be rendered nugatory if the stay is not granted. I am not prepared to exercise my discretion to order a stay as sought by the husband and I dismiss the application for a stay referred to in order 3 of the orders of 17 October 2016.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 9 November 2016
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