Hopkins & Elliott (No 2)

[2023] FedCFamC1F 275

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hopkins & Elliott (No 2) [2023] FedCFamC1F 275

File number:

SYC 5636 of 2021

Judgment of:

AUSTIN J

Date of judgment:

17 April 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding – Stay of orders – Where the wife seeks the stay of an interlocutory injunction requiring her to vacate the former matrimonial home pending the determination of her appeal – Whether the wife’s appeal lacks ostensible merit – Where the wife requires, but has not sought, leave to appeal from the order – Where the appeal is prosecuted on a false premise – Where the balance of convenience does not favour the wife – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02

Cases cited:

Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220

Hopkins & Elliott [2023] FedCFamC1F 167

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681

Medlow & Medlow (2016) FLC 93-692

Division:

Division 1 First Instance

Number of paragraphs:

29

Date of hearing:

17 April 2023

Place:

Newcastle (via video link)

Counsel for the Applicant:

Ms Windsor

Solicitor for the Applicant:

Eddy Neumann Lawyers

Solicitor for the Respondent:

Parker Law

ORDERS

SYC 5636 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HOPKINS

Applicant

AND:

MS ELLIOTT

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	17 APRIL 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed on 11 April 2023 is dismissed.

2.The Response to an Application in a Proceeding filed on 14 April 2023 is dismissed.

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 Hopkins & Elliott (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 17 March 2023, interim orders were made to determine multiple financial and other miscellaneous disputes between the parties.

2. One particular order resolved the parties’ contested possession of the former matrimonial home, which is owned by the husband but occupied by the wife. The order was made in these terms:

   2.Within one month of the date of these orders the [wife] shall forthwith vacate the real property and improvements known as [the property] and is thereafter restrained from entering upon the property.

3. The wife appealed from that solitary order by way of a Notice of Appeal filed on 5 April 2023.

4. Before the Court for determination is an Application in a Proceeding filed by the wife seeking the stay of the appealed order pending the outcome of her appeal.

5. For the following reasons, the stay application is dismissed.

   Legal principles

6. The discretion to stay the operation of orders should only be exercised where circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation pending the determination of any appeal.

7. Circumstances which may justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory or when there is a real risk it will not be possible for the prospectively successful appellant to be restored substantially to his or her former position if the primary judgment is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 at 222–223).

8. However, the Court should also consider the prospects of the appeal and where the balance of convenience lies between the parties (Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685). Since the primary judgment was discretionary in nature, it must be strongly presumed to be correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 at 627).

   Evidence

9. In support of her application filed on 11 April 2023, the wife relied upon:

   (a)her affidavit filed on 4 April 2023;

   (b)her second affidavit filed on 11 April 2023;

   (c)her third affidavit filed on 15 April 2023; and

   (d)the affidavit of her solicitor, Mr Neumann filed on 14 April 2023.

10. The husband opposed the stay application by his Response to an Application in a Proceeding filed on 14 April 2023, supported by his affidavit filed on the same date, but he did not appear at the hearing and so his evidence is ignored.

11. Much of the evidence led by the wife was immaterial to the outcome of the stay application.

    Disposition

12. It may be accepted that, should the wife’s stay application be refused, then the execution of Order 2 by the husband would likely render her appeal from the order nugatory, but that consideration is outweighed by other factors.

13. The most influential considerations for present purposes are the apparent futility of the stay application and the ostensible lack of merit of the wife’s intended appeal, which is evident from its prosecution on a false premise.

14. The stay application seems futile because, even if Order 2 is stayed, the effect would be to leave the issue of possession of the former matrimonial home unregulated by any interlocutory order or injunction. In such a vacuum, the husband would be free to exercise his legal right as the sole legal owner of the property to eject the wife as a trespasser, using reasonable force if necessary. As was pointed out in the reasons for judgment published on 17 March 2023 (Hopkins & Elliott [2023] FedCFamC1F 167 at [17]–[19]), no interim order has ever been made granting the wife exclusive possession of the property. It was only Order 2 which gave the wife that protection for the limited period of one month.

15. The appealed order is an interlocutory injunction and, hence, leave is required to appeal from it (s 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth); reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)). The wife has not sought such leave in her Notice of Appeal, but that is not fatal because she could make the application orally or amend the Notice of Appeal.

16. Regardless, the grant of leave will require the wife to demonstrate to the Full Court that the original decision to make Order 2 is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the original decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).

17. Supposing that the wife can ably demonstrate she would suffer substantial injustice if forced to vacate the home she occupies for free when hampered by limited means, she is still unable to demonstrate a reasonably arguable case of appealable error.

18. The proposed grounds of appeal are pleaded this way:

    1.The judge erred in believing that there was an application before him when in fact it had been withdrawn by consent before [the registrar] on 31 January 2023;

    2.The [wife] was denied procedural fairness when the application which had been withdrawn was heard, without being given notice to prepare for the hearing when she was unrepresented.

19. The singular premise of the two pleaded grounds is that I erred when making Order 2 because the parties’ contest over the possession of the former matrimonial home was “withdrawn” by them when they appeared before the registrar on 31 January 2023 and so it was not a live contest before me on 17 March 2023. The proposition is demonstrably false, even if the husband did not press his application for possession of the property at the hearing before the registrar, as the wife contends. He pressed his application at the hearing before me.

20. The parties’ dispute over possession of the former matrimonial home was evident from the contents of the husband’s Initiating Application filed on 5 August 2021 (proposed Orders 2, 3, 6 and 7) and the wife’s Response filed on 10 November 2022 (proposed orders 6, 13, 25 and 25.2 [sic]).

21. No valid order was made by the registrar on 31 January 2023 to dispose of the parties’ dispute over possession of the former matrimonial home.

22. The registrar did make these orders:

    14.I withdraw the Interlocutory Orders sought in the Initiating Application filed 5 August 2021.

    15.I withdraw the Interlocutory Orders sought in the Response to Initiating Application filed 10 November 2022.

    But, such orders achieved nothing and are meaningless. The registrar could not “withdraw” applications filed by litigants. The pending applications were neither “dismissed” by the registrar nor “discontinued” by the parties.

23. Even if Orders 14 and 15 could be construed as orders which validly disposed of the dispute over possession of the former matrimonial home, they were among the orders reviewed by the wife. She filed an Application for Review on 7 February 2023, by which she reviewed Orders 2–18 inclusive made by the registrar on 31 January 2023, thereby including Orders 14 and 15.

24. The effect of the review application was to revive for re-consideration all anterior interim applications otherwise determined by Orders 2–18. The parties’ dispute over the possession of the former matrimonial home was one of the revived disputes. That particular dispute was then resolved by Order 2 made on 17 March 2023. There could not be, and was not, any mistake about that, so Ground 1 of the appeal seems misconceived.

25. There could be no doubt the parties were both cognisant of the live dispute between them over the possession of the former matrimonial home at the hearing before me on 17 March 2023. The wife in particular made lengthy submissions about that precise issue, which she would not have done if she believed the dispute was consensually resolved, so Ground 2 of the appeal also seems misconceived. The wife could not have been denied procedural fairness if she was aware of the live dispute and was permitted to make all the submissions she wanted about it.

26. The lack of merit manifest in the two proposed grounds of appeal suggests it is highly unlikely the wife will be granted leave to appeal from Order 2. That being so, her case for a stay of Order 2 pending the determination of her application for leave to appeal (and any subsequent appeal) is weak.

27. It might be inconvenient for the wife to vacate the former matrimonial home in compliance with Order 2, but she is occupying the property at no cost without any legal or equitable entitlement to do so. All the while, as the sole legal owner of the property, the husband is exclusively meeting the cost of maintaining the mortgage repayments, rates and utilities in respect of the property in addition to the cost of maintaining his own separate rented accommodation. It is no less inconvenient for him to be kept out of his own home.

28. I am not persuaded to grant the stay application and thereby deprive the husband of the fruits of the interlocutory judgment. It is dismissed.

29. The husband sought indemnity costs against the wife if the stay application failed, but costs should be refused. The stay application failed, but that is insufficient to justify the payment of his costs, let alone on an indemnity basis, in the face of the provisions of s 117 of the Family Law Act 1975 (Cth). The hearing took less than 40 minutes, the husband’s lawyer failed to attend the hearing until near its end, and the wife’s modest financial circumstances militate against any costs order.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       18 April 2023