Masters and Masters
[2011] FMCAfam 387
•12 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MASTERS & MASTERS | [2011] FMCAfam 387 |
| FAMILY LAW – Stay of proceedings pending appeal. |
| Federal Magistrates Court Rules 2001, rr.1.03, 10.01 |
| Masters & Masters (2010) FMCAfam 209 Masters & Masters (2011) FMCAfam 314 |
| Applicant: | MR MASTERS |
| Respondent: | MS MASTERS |
| File Number: | SYC 5295 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 12 April 2011 |
| Date of Last Submission: | 12 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2011 |
REPRESENTATION
| Applicant: | Self-represented |
| Respondent: | Self-represented |
ORDERS
The Husband’s Application in a Case, filed 8 March 2011, be dismissed.
Each party shall bear their own costs incurred by these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Masters & Masters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5295 of 2008
| MR MASTERS |
Applicant
And
| MS MASTERS |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
In the matter of Masters & Masters, I provide the following ex tempore reasons. By way of an Application in a Case filed on 8 March 2011, the applicant husband seeks a stay of orders that I made on 8 February 2011. On 8 March 2011, the husband also filed a Notice of Grounds of Appeal against the orders that I made on 8 February.
By way of a Response filed 1 April 2011, supported by an Affidavit, the wife seeks that the husband’s application be dismissed. The application before me is a stay application. As I have indicated, both the husband and the wife filed Affidavits in support. The husband has at all times represented himself in these proceedings.
The wife has represented herself at certain times and been represented by her solicitors at other times. Her Response and Affidavit was prepared by Marsdens, who had previously acted for her, but today
Ms Masters represents herself.
They each made oral submissions. I must say, and without meaning in any way to be disrespectful to Mr Masters and Ms Masters, the submissions were not helpful, in the sense that they did not address the matters that are relevant to stay applications pending an appeal. It is my earnest hope that the Full Court will have more assistance with dealing with this case than I have, particularly since the matter was originally decided.
By way of background, in March 2010 I made orders for property settlement following a hearing on 16 December 2009. My reasons in that matter were published and are reported as Masters & Masters (2010) FMCAfam 209.
The matter came back before me on 8 February 2011 and it is in respect of the orders I made on that day that the appeal has been lodged and the stay sought. My reasons in that matter were published as Masters & Masters (2011) FMCAfam 314.
On 8 February 2011 I made certain orders for sale the effect of which were to implement the original orders for sale, and I also dismissed applications that were characterised as enforcement applications. In any event, both sets of reasons for judgment are available. Also available to me was the transcript of the proceedings before me on
8 February 2011. In circumstances where I did not have much assistance from the parties in terms of submissions, I had regard to the transcript and to the earlier judgments.
The principles on which a stay is or is not granted pending an appeal are relatively well known. I paraphrase here: a successful litigant ought not to be deprived of the fruits of litigation. The granting of a stay is discretionary. A stay should be granted if to deny it would be to render a successful appeal nugatory. I need to have regard to the grounds and the merits of the appeal, the bona fides of the applicant, as well as the length of time it will take the appeal to be heard. These are the matters that I consider relevant to the determination of the application before me.
I turn now to the Notice of Appeal. I think the stay application either succeeds or fails having regard to whether the notice of appeal as currently framed is one that sets out grounds and has merits that are substantial and which otherwise reflect a bona fide application by the applicant husband. I accept that if I don’t grant the stay today, the wife would be perfectly entitled to seek to enforce the orders for sale of the former matrimonial home that were made firstly back in March 2010, and then after enforcement proceedings again on 8 February 2011.
To that extent, it could be said that if the stay is not granted the successful appeal is rendered nugatory, but even that must be determined by reference to the grounds of the appeal. In short, the practical problem that confronts the court is this: orders for sale of the property have been made; the wife seeks to enforce those orders; the husband seeks to go back and, in effect, seek to buy the wife out at a price that was originally contemplated by the first set of orders.
The reasons for declining the husband’s earlier application to uphold what he asserts was an agreement with his wife that would have enabled him to buy her out are set out in my reasons for judgment from 8 February 2011. In short though, the dilemma is that the wife wants to sell the home and the husband wants to buy the wife out.
I consider the grounds of the Notice of Appeal which are set out in Part E of the Notice of Appeal filed 8 March 2011. These grounds are of course prepared by Mr Masters himself and I accept he has done the best that he can. The first ground of appeal seems to relate to whether or not I made a finding about reasonable excuse about the husband not complying with the orders. In the first of the grounds of appeal, the husband specifically refers to a contravention. However, when one has regard to the reasons for judgment of 8 February 2011, it is clear that no contravention proceedings were before the court. Both parties were before the court with a view to seeking to enforce the existing orders, and from the husband’s perspective, to vary the orders in circumstances where it became apparent to me that there was clearly no agreement between the parties to vary the orders themselves. On this basis the first ground of appeal is clearly misconceived and has no merit.
The second ground of appeal relates to the making of costs orders. In relation to costs, the granting of the stay will not render this particular appeal point nugatory.
The third ground of appeal relates to a miscalculation about the final amount and it is asserted that I failed to take into account the amount paid to maintain the mortgage by the husband whilst the wife was living and benefitting from living in the house. Again, this is not an example of a matter where, if I were not to grant the stay, the appeal would be rendered nugatory. Even if I decline to grant the stay, the husband will have the opportunity to seek to convince the Full Court that an error was made in the calculations, so this ground itself does not create a basis for a stay.
The fourth and the fifth ground of appeal relates to natural justice. In effect, the husband says that he was denied the right to cross-examine the wife during the course of the proceedings before me on 8 February 2011. It is quite correct that I did not allow the husband, or the wife for that matter, to cross-examine each other on the basis of the applications before me, the nature of which are clearly described and set out in my reasons for judgment, but which were, in effect, enforcement proceedings and/or variation proceedings. The husband says that he was denied natural justice. In determining that no cross-examination would take place, I had regard and continue to have regard to a number of matters. This court, being a court that deals with a very substantial volume of cases, must have the power to command its own processes. The amount of time that the court can apply to any particular case must be proportionate to the issues raised in the case and as regards all of the other matters that command the court’s attention.
The objects of the Federal Magistrates Court in terms of its procedures are set out in its rules, and in particular Rule 1.03:
1.03 Objects
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
* to operate as informally as possible
* to use streamlined processes
* to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
* avoid undue delay, expense and technicality
* consider options for primary dispute resolution as early as possible.
(5) If appropriate, the Court will help to implement primary dispute resolution.
Rule 10.01(2) says that the court may determine all or part of proceedings on the first court date. Subrule (3) of that rule makes it clear that the court can make orders about the giving of evidence.
10.01 Directions and orders
(1) At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceeding.
(2) Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.
(3) The Court or a Registrar may make orders or directions in relation to the following:
(a) the manner and sufficiency of service;
(b) the amendment of documents;
(c) defining of issues;
(d) the filing of affidavits;
(e) cross‑claims;
(f) the joinder of parties;
(g) primary dispute resolution;
(h) the admissibility of affidavits;
(i) discovery and inspection of documents;
(j) interrogatories;
(k) inspections of real or personal property;
(l) admissions of fact or of documents;
(m) the giving of particulars;
(n) the giving of evidence at hearing (including the use of statements of evidence and the taking of evidence by video link or telephone or other means);
(o) expert evidence and court experts;
(p) transfer of proceedings;
(q) costs;
(r) hearing date;
(s) any other matter that the Court or Registrar considers appropriate.
The court was perfectly entitled, in my opinion, to direct that no cross-examination take place on the issues. Both parties had filed Affidavits and both parties were given ample opportunity to address the matters raised in the Affidavits. As the transcript of the proceedings of
8 February will indicate, certain things were said by way of concessions or admissions from the Bar table that clearly informed the decision that was made.
On this basis, I do not regard that the husband’s assertion of natural justice is one that, in the circumstances of this case, would have merit on appeal. Accordingly, that is another ground that is not an obstacle to my declining to grant a stay, if it is otherwise the decision I make in the exercise of my discretion.
The sixth ground is another denial of natural justice ground.
The seventh ground raises issues relating to the children. The husband raises in his appeal, and even before me today, matters that he raised on 8 February about failing to consider the impact for the children of having to leave the family home, particularly having regard to the special needs of the parties’ son. Firstly, this ground is not a ground of appeal and I doubt if it is relevant, but in any event, it fails to consider that there is arguably as much impact on the children by granting the husband’s application as there is in not staying the orders. The husband concedes that he has 40 per cent care of the children in school term, which means that the children are in their mother’s care 60 per cent of the time during school term. I do not regard this as a meritorious ground of appeal.
In circumstances where this litigation has been going on now since 2008, where the parties have been unable to sensibly make any progress themselves, it is hard to see how the Notice of Appeal, as presently framed, provides a foundation for my staying the orders that I have made. I think there is another issue, and that is I have doubts about the bona fides of the applicant in seeking a stay. Mr Masters has been amazingly resilient and persistent in his pursuit of retaining the property for whatever reason. He has demonstrated an inability to comply with the orders of the court. His wife asserts today that he has not paid the order for costs made on the last occasion. That is a matter in respect of which an appeal is sought, she also asserts that he has failed to comply with the orders about the listing of the property for sale.
Mr Masters indicated to me during the course of submissions this morning that, even as at today’s date, he is not in a position to comply with the very order that he has asked the court to make in the past, i.e. to be able to buy his wife out. He has indicated that it could be done within 60 days, but he does not have a loan approval as yet. True it is that he has indicated that, if it were the case that his wife had agreed to accept $27,000 from him as a payout, he could do that, but he does not yet have a loan approval in relation to refinancing the loan.
Mr Masters says that his original failure to comply with the property settlement orders was as a result of an act that the wife did, that is, failing to pay a mortgage. That is a matter that was taken into account in the earlier proceedings.
In all the circumstances of this case, I exercise my discretion by declining to grant the stay sought by the applicant husband for the reasons that I have stated above. In closing, I can only again hope that the Full Court will receive more assistance than I have in this case. The parties have been unable to stay focused on what the issues are. The property pool is a small one and, I fear, is dwindling every day that these proceedings are maintained. I appreciate that Ms Masters is not consistently represented, but I just wonder whether at the end of the day it has been a false economy to both parties to seek to pursue these proceedings without consistent legal representation.
In the wife’s Response, she seeks an order for costs. The Family Law Act 1975 says that, as a general proposition, each party should pay their own costs. I think in the circumstances of this case, that is the most appropriate order to make.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 12 April 2011
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