Kipling & Netis

[2020] FamCA 1107

FAMILY COURT OF AUSTRALIA

Kipling & Netis [2020] FamCA 1107

File number(s):	TVC 809 of 2015
Judgment of:	BAUMANN J
Date of judgment:	9 December 2020
Catchwords:	FAMILY LAW – STAY – Where final property adjustment Orders were made providing for funds to be released to the wife – Where the husband appealed those Orders – Where the husband’s final avenue of appeal was exhausted by order of the High Court of Australia – Where a s106A Order has been made for the Registrar to sign an authority for such funds to be released to the wife – Where the husband seeks a further stay of the final property Orders and a stay of the s 106A Order – Application dismissed
Legislation:	Family Law Act 1975
Number of paragraphs:	21
Date of hearing:	9 December 2020
Place:	Townsville
Counsel for the Applicant:	Self-represented
Solicitor for the Respondent:	Ms N Busby, Mobbs & Marr Legal

ORDERS

TVC 809 of 2015

BETWEEN:

MR KIPLING

Applicant

AND:

MS NETIS

Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	9 DECEMBER 2020

THE COURT ORDERS THAT:

1.That the Application in a Case filed by the Applicant on 19 November 2020 be dismissed.

2.That paragraph 2 of the Response to Application in a Case filed by the Respondent on 7 December 2020 be dismissed.

3.That otherwise all outstanding Applications and Responses before this Court be 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kipling & Netis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

1. This application has had a long history, but this part of the application which I am dealing with today arises from an Application in a Case filed by the unrepresented, yet legally trained, Applicant, Mr Kipling, seeks the following orders:

   1.That Order 1 of the Orders of Justice J dated 5 June 2019 AND the Orders of Justice Baumann dated 4 September 2020 be stayed pending determination of the application of the Respondent Husband in accordance with s.79A of the Family Law Act 1975 (Cth).

   2.That the application of the Respondent Husband in accordance with s.79A of the Family Law Act (Cth) not be heard until after the determination of the initiating Application filed by the Applicant Wife on 15 July 2020.

2. The application before me was actually filed in the Federal Circuit Court of Australia on 19 July 2020 and, by Order of a Judge of that Court, was transferred to this Court on 3 December 2020.  The Application had been listed before me urgently for the reasons which follow.

3. I understand from the material that I have read that the initiating material of the wife filed on 15 July 2020 relates to an application for permission to relocate the child of the marriage, X, who is now aged nine years, from Queensland to another State.  It is being contested by the father.  That application is pending before the Federal Circuit Court of Australia.

4. The proceedings that I am dealing with relate to financial matters.  What is clear is that on 5 June 2019, Tree J delivered Reasons and made Orders which, inter alia, provided that:

   1.Within 7 days, the husband authorise the further payment to the wife of the sum of $80,000.00 from the funds held on his behalf by NN Legal.

   2.Upon the payment of the $80,000.00 to the wife, the balance of the funds in the NN Legal Trust account be released to the husband.

   3.Otherwise each party retain the assets presently in their possession, and superannuation in their name, and be responsible for the liabilities in their names.

   4.Otherwise all applications for property adjustment be dismissed.

5. Those Orders arose from a trial conducted before Tree J on 7 and 8 March 2019.  As the husband was perfectly entitled to do, he filed an appeal against those Orders on 3 July 2019.  The appeal was deemed abandoned on 2 December 2019 and by an application filed by him on 9 December 2019, he sought that his appeal be reinstated.

6. Whilst that process was being undertaken, the matter came before me on 29 October 2019 whereby the wife was, effectively, seeking to enforce the order of Tree J and gain access to the funds payable to her under His Honour’s Order.  The matter was adjourned as the appeal application, at that stage, had not been determined and the husband was still pressing it in the Full Court of the Family Court.  I gave the parties liberty to apply.

7. The matter therefore remained dormant in this Court, in its Trial Division, and after the Full Court of the Family Court (Kent J) on 28 July 2020 dismissed the husband’s application for reinstatement of the appeal for Reasons given, the matter then returned to my list on 4 September 2020.  I note that in the Full Court’s decision at [70] Kent J found that the appeal against the Orders of Tree J, “has no merit”.

8. Nonetheless, when the matter did come before me on 4 September 2020, for Reasons which I delivered orally at the time, and being aware that it was the husband’s intention to seek leave of the High Court of Australia to appeal the decision of the Full Court of the Family Court, this Court made Orders in these terms:

   1.That pursuant to Section 106A of Family Law Act 1975, a Registrar of the Family Court of Australia is appointed to execute any document necessary to give effect to Order 1 of the Orders made by the Honourable Justice Tree on 5 June 2019.

   2.That Order 1 of this Order be stayed pending determination by the High Court of Australia on the application by the husband for special leave to appeal the decision of Full Court of the Family Court of Australia (Kent J) made 28 July 2020.

   3.That if the High Court of Australia refuse special leave as sought by the husband, then Order 1 of this Order made today comes into immediate effect.

   …

9. On 12 November 2020, the High Court of Australia dismissed the application for special leave.  On the same day, I am satisfied that the wife sent an authority to a Registrar of this Court pursuant to the Orders made by me on 4 September 2020 to sign an authority directed to the firm requiring the funds to be released at the direction of the wife.

10. I have no Reasons from the Registrar formally before the Court as to why my Order was not complied with in its terms. Nonetheless, it seems, I infer, that the Registrar may have been persuaded in some way, I presume, by the husband, that he had a legitimate application pursuant to s 79A of the Family Law Act 1975 (“the Act”) which he wished to file but had been prevented from filing after the High Court of Australia had dismissed his special leave application.

11. I am informed that the application under s 79A of the Act has in fact, now, been filed in the Federal Circuit Court of Australia and is, no doubt, before that Court for determination in its usual way. I am also told that the application by the mother seeking to relocate the child, X, is also before the Federal Circuit Court of Australia for determination.

12. As I sought to explain to the father today, who I must say, at all times, is courteous yet persistent in his beliefs, his application, in my view, that he has brought which has now been transferred to this Court for a stay, is fundamentally flawed.  When the husband’s final avenue of appeal was exhausted by order of the High Court of Australia, there was no legal impediment to the wife then obtaining access to the funds that had been ordered to be paid to her by Tree J.

13. However, as I indicated to Mr Kipling today, and on the basis that he is unrepresented, I characterised his application as, effectively, an application seeking an injunction against the wife restraining her from accessing the funds that are now her true and lawful entitlement.

14. The husband says that the s 79A application, if it is successful, will be nugatory because by the time that application is determined the funds which will be released to the wife will have been dissipated. I explained to the husband the principles that apply in such an application. I also explained to him the differences between the basis upon which he seeks an injunction, namely, that he claims he has a right to set aside or vary the orders of Tree J under s 79A of the Act in the two-step process that is required before any variation or setting aside could be ordered. It is, in my view, quite different than, for example, a party coming to a Court in the midst of contested s 79 proceedings, seeking to restrain the use of funds which were then “marital funds” the ownership of which had not yet been determined by the Court. That is not the case here. I also note that the s 79A application is not in this Court for determination.

15. The husband’s s 79A application, as best as I can understand it from the affidavit he filed in support of the stay application (also filed on 19 November 2020), identifies what he says is a failure to disclose by the wife. These areas of complaint seem very similar to those dealt with by Kent J in the Appeal Division. He further says that because of the nature of his cross-application to the wife’s application for relocation, if as he urges, X is to come into his care as the primary carer, then that is a relevant factor under s 79A(1)(d).

16. Of course, the difficulty with the husband’s argument is no such order has been made, and although he seems confident it will be made, that is not the position as I sit here today.  Issuing an injunction restraining the wife from accessing funds which are now her entitlement (and she says, have been her entitlement since the orders of Tree J made on 5 June 2019) requires an exercise of discretion.  In my view, as I have indicated to the husband today and as I seek to do, briefly, in these Reasons now, it would not be a proper exercise of discretion to restrain the wife.

17. Accordingly, the Application in a Case filed 19 November 2020 shall be dismissed.  I expect my Order made 4 September 2020 to be immediately complied with.

18. Before finalising these Reasons, I have indicated to Ms Busby that whilst her Response to an Application in a Case sought dismissal and costs of the Application in a Case of the husband, she also sought in that Application in a Case an order under s 102QB of the Act:

    That, pursuant to s 102QB of the Family Law Act, the Applicant be prohibited from instituting proceedings in a Court having jurisdiction under the Family Law Act 1975 without leave of the Court.

19. In my view, such an application is, again, premature when there are now two pending applications before the Federal Circuit Court of Australia.  Any such application that, in a sense, the Applicant be declared a “vexatious litigant” or that his right as a lawful citizen to bring applications be impeded by a need to obtain leave, first, are matters properly to be considered, at this stage, by the Federal Circuit Court of Australia within the context of the two competing substantive applications listed before that Court for determination.

20. Accordingly, I propose to dismiss paragraph 2 of the Response filed by the wife on 7 December 2020.

21. Otherwise, all other applications before this Court are dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       23 December 2020