Mighell and Field (No.2) - [2012] FMCAfam 1040

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MIGHELL & FIELD (NO.2)

[2012] FMCAfam 1040

FAMILY LAW – Ruling on stay application.

Family Law Rules 2004, r.22.11

Applicant:

MR MIGHELL

Respondent:

MS FIELD

File Number:

MLC 1145 of 2010

Judgment of:

Burchardt FM

Hearing date:

7 September 2012

Date of Last Submission:

7 September 2012

Delivered at:

Melbourne

Delivered on:

7 September 2012

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

The application filed 3 September 2012 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Mighell & Field (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 1145 of 2010

MR MIGHELL

Applicant

And

MS FIELD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 31 August 2012, I gave Judgment orally and made orders which were designed to conclude this matter. It has been a very long-running proceeding and a very difficult one for reasons to which I referred on that date and indeed, in earlier Rulings and Judgments. I dealt, amongst other things on that day, with the matters raised about the sale of a property in [B]. There is no need to repeat what I then said.
On 3 September 2012, Ms Field lodged an application in a case. She sought a stay order in respect of the sale of the property. She sought leave to file a notice of appeal. She sought that the deposit previously paid be returned to the purchaser and that the sale of the property be restrained in any event, or any further encumbrance of it, pending the hearing of the posited appeal.
An affidavit in support filed the same day refers to the history of the matter which I need not repeat. She also referred to the fact that her appeal would be rendered nugatory in the event that a stay was not granted and she asserted that Mr Mighell is likely to spend his 65 per cent of the net proceeds of sale in the event that they are received. I emphasize of course that this is a paraphrase of the materials.

On 6 September 2012, Mr Mighell filed an affidavit seeking that a Registrar sign a transfer to enable settlement on Monday, 10 September 2012. It is clear that the Registrar has indeed executed the relevant document.
In oral submissions, Ms Field repeated complaints about what I would describe generally as the sale process. It should be noted that these had already been dealt with in my Ruling on 31 August 2012. Nothing of substance was now added. Ms Field referred to the fact that Mr Mighell was renting the property or rooms in it and that if he was restrained from proceeding to sell there would be, as Ms Field put it, no struggle for him, which I would understand her to mean no prejudice to him if he remained in the property and continued to receive the rentals.
Ms Field said that she sought procedural fairness to enable her to institute her appeal. Once again, I emphasize this is a paraphrase of the relevant matters that were raised.
Mr Mighell sought that Ms Field be declared a vexatious litigant. This oral application was summarily dismissed. As I explained to

Mr Mighell, orders of that character are very seriously regarded by the Court and would require a proper application and proper materials. He did, however, confirm that settlement is to take place on 10 September 2012, which I would remind everybody is the next working day and in about five working hours from now.
In reply, Ms Field complained about the Registrar signing the transfer but I should interpolate and say that it is clear from the husband’s affidavit filed on 6 September 2012 that that is a proper outcome. As I observed, the Registrar would not be in the habit of signing inappropriate documentation in any event.
So far as the test for stays is concerned, I observed that no appeal has yet been filed. Technically, that means that r.22.11 of the Family Law Rules 2004 is not engaged because that rule only applies according to its terms when an appeal has formally been filed. It is clear that the Court has the power to stay an order that it makes. There is a deal of authority touching on this matter but in view of the amount of time available, I have not felt it appropriate to do more than state the conclusion.
There are two aspects of the application, if looked at in substance. The first is the immediate matter of staying the sale and the second is the question of a stay generally pending appeal, notwithstanding that it has not yet been issued. The authorities show that the question of a stay is a matter of considering all the relevant circumstances and the particular facts of the case. It should be observed that some of the matters that are often referred to are, first, it is frequently asserted that there must be special circumstances to justify a stay because the ordinary rule is that a successful party is entitled to the fruits of their victory.
Secondly, it is often said that a stay should be seriously contemplated where the lack of a stay will render the appeal nugatory or of no effect. A third and very relevant consideration is the prima facie consideration by the relevant Court of the prospects of success on appeal. Here, leaving aside the fact that this case has been going on for a very long time and it is plainly generally desirable to bring matters to a close if it can properly be done, points that are relevant are as follows:
a)First, the sale is giving effect to orders that I made many months ago which have not, at least as yet, been appealed. Albeit in saying that I bear in mind that Ms Field is not overly familiar with the law of Australia and this might be regarded as a qualification to the force of that observation.
b)
Second, as I have already found and had made clear on

31 August 2012, the sale is indeed taking place pursuant to my earlier orders. Ms Field’s criticisms had already been rejected and I note that she remains wholly uncooperative in the sale process for the reasons that she has put in her affidavits.
c)Third, the sale clearly would affect a third party, namely the purchaser, to whom, as best I understand it, no notice has been given by either party.
d)Fourth, it is relevant in my view that there is no earthly reason why the husband should seek to under-sell the property. He would lose more than Ms Field as he would obtain 65 per cent of the net proceeds.
It is clear that I should not enjoin Mr Mighell from proceeding with the sale on Monday and I will not do so.
However, that still leaves the question of a stay in more general terms. I accept that Ms Field will appeal. She does not need my leave to do so, subject to any question as to whether or not the appeal is out of time, which is not a matter for me. She says or infers that Mr Mighell will dissipate any assets that come his way from the sale and as a matter of interrelated effect, this might render any successful appeal nugatory.
I consider, in the sort of interim way that one does in these circumstances, the question of prospects of the success of the appeal. For the reasons given more than once, this has been a very messy case which has faced, and continues to face massive evidentiary difficulties. Nonetheless, the overarching findings that I made that the parties’ properties should be distributed in proportions of 65 per cent to

Mr Mighell and 35 per cent to Ms Field were based on what, at least to me, seemed to be relatively clear aspects of the case.
The chances of overturning those aspects of the matter and thus ensuring that Ms Field becomes wholly seized of the [B] property are, in my opinion, negligible. Second, why should Mr Mighell dissipate such funds as may come his way? If one looks at the materials as a whole, in effect they are pretty much all he really has. There is no compelling evidence, indeed there is no evidence other than the mere assertion, that he will dissipate the proceeds of sale. Accordingly, the appeal is not likely to be nugatory in the event that it is successful.
Doing the best I can on what are necessarily limited materials provided by the parties, in my view, a stay should not be ordered.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 26 September 2012