Mirren and Mirren (No 2) - [2019] FamCA 742

FAMILY COURT OF AUSTRALIA

MIRREN & MIRREN (NO. 2)

[2019] FamCA 742

FAMILY LAW – STAY APPLICATION – grounds of appeal generic and unspecific – no arguable prospects of success on the appeal – appellant not prosecuting her appeal with any particular vigour – stay refused – costs ordered against appellant.

Family Law Act 1975 (Cth) ss 37A, 79A, 117(2A)
Family Law Rules 2004 (Cth) r 22.11(3)

Aldridge & Keaton (2009) 42 Fam LR 369

APPLICANT:

Ms Mirren

RESPONDENT:

Mr Mirren

FILE NUMBER:

MLC

9896

2013

DATE DELIVERED:

11 October 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

11 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms E Swart

SOLICITOR FOR THE APPLICANT:

Kelly & McHale Family Lawyers

COUNSEL FOR THE RESPONDENT:

Dr R Ingleby

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

Orders

The applicant’s application for a stay of the orders made 14 August 2019 is dismissed.
The applicant pay the respondent’s costs of and incidental to this stay application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9896 of 2013

Ms Mirren

Applicant

And

Mr Mirren

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 14 August 2019 I handed down reasons for decision in this proceeding in which Mr Mirren applied to review a registrar’s order. I published detailed reasons within two days of the close of submissions. They have been the subject of an appeal brought by the wife.
She has relied on four grounds of appeal. It is necessary to go to them because Dr Ingleby has contended that they are generic in nature and amount to little more than a grievance that the wife, essentially, does not like the outcome of the decision against which she appeals.
The grounds are as follows –
(1)the learned trial judge erred in conflating the considerations relevant to s 79A with the considerations relevant to s 37A, (inferentially, of the Family Law Act);
(2)the learned trial judge erred in his finding that there were material errors in the application for consent orders which lead to a miscarriage of justice;
(3)the learned trial judge erred in finding that the registrar could not have been satisfied that it was just and equitable to make the orders; and
(4)the learned trial judge erred in finding that an injustice to the husband would result if the orders were permitted to stand and that strict compliance with the rules will work an injustice on the husband.
Earlier today I asked counsel for the appellant what rule she invoked for the stay. She directed my attention to rule 22.11(3) of the Family Law Rules that she said was mandatory in terms requiring an application for a stay to be heard before the judge who pronounced the orders, me in this case. I brought to Ms Swart’s attention that it is a rare event for a trial judge, having delivered detailed reasons, to concede error in those reasons although Ms Swart correctly pointed out that rule 22.11(3) required, not makes optional, the application for the stay to be heard before me whether or not she additionally has an opportunity to apply for a stay before the appeal court if unsuccessful.
In debate with Ms Swart I asked what she needed to establish on the application that she brought today. She told me that she did not have to show that the appeal was totally hopeless. She said the rules did not require that. She submitted that she merely had to demonstrate that she had an arguable prospect of success. She recognised that she had no need to demonstrate “extraordinary circumstances” or “special circumstances” before the proceeding was stayed pending appeal and she also recognised, as is the fact, that the mere filing of an appeal does not operate as a stay. However she did point out that an appeal in this case would be rendered nugatory unless a stay were granted.
She brought to my attention the contents of paragraph 7 of her client’s affidavit made 30 September 2019 in which the appellant voiced her concern about Mr Mirren’s liquidity problem. Specifically, she highlighted that there was some likely prospect of the bankruptcy of Mr Mirren. She said he had no present source of income and no place of employment. She said he apparently owes $42,000 as a result of a Fair Work proceeding. She says he owes a substantial amount of money to B Company as well as a large sum in child support arrears, together with $71,000 in outstanding legal fees. She said that there are potentially future tax liabilities although she did not develop that and I do not understand what she meant by “potentially future tax liabilities”.
When I put to Ms Swart that Mr Mirren’s liquidity problem is likely to be a fact of life irrespective of anything I might do or for that matter an appeal court might do, Ms Swart brought to my attention paragraphs 9 and 10 of her affidavit in which the appellant made an assertion that if the orders that I made were not stayed “significant detriment and hardship would be caused to (the wife’s) financial position” in a manner that could not be restored. She also said that unless a stay were granted, the appellant would be exposed to a large number of creditors.
I pointed out to Ms Swart that nothing prevented Mr Mirren from leaving this court the moment I finish pronouncing reasons for judgment and presenting a petition for his own bankruptcy which would have the effect of immediately appointing a trustee-in-bankruptcy over his property. Ms Swart seemed to suggest that any such appointment would have no bearing on the appellant’s assets because the appellant presently enjoys the benefit of orders made many years ago that she is seeking to enforce and which were the subject of my decision in August of this year.
It seemed to me that nothing I might do or for that matter the appeal court might do in the grant of a stay will alter the nature of the existing financial pressure presently being exerted by creditors of Mr Mirren and to the extent that those debts are joint, her. Nothing that I read in paragraphs 9 or 10 of the appellant’s affidavit I found particularly compelling.
Dr Ingleby submitted that this application was misconceived because the order being appealed against was an interlocutory order, where in truth, the appellant’s main grievance related to the overall conduct of the overall litigation. He said that the application presently being made before me was, in truth, an assault on the overall conduct of this proceeding whereas in reality merely an interlocutory order was the subject of appeal.
Some debate ensued about the applicable legal principles but both parties agreed that the relevant provisions that I needed to take into account were those pronounced in Aldridge & Keaton.[1]
[1] (2009) 42 Fam LR 369
Dr Ingleby relied on the presumption that his client was entitled to the correctness of the decision that is the subject of the appeal. Dr Ingleby devoted some time to what he said was the generic nature of the appeal in this case. I agree that the appeal notice is bereft of any meaningful content by which I could assess to any degree of satisfaction that it was arguable or that it was likely to enjoy any prospects of success. It seemed to me that it bordered on totally hopeless although it is not important for me to express an opinion about that nor do I express one.
I agree that the application in this case was burdened by delay. The appeal was filed at the last moment and no step has been meaningfully taken to advance the appeal, highlighting that in reality there might be some merit in the argument that this appeal is in truth in the nature of a grievance that the appellant is not happy with the result below, rather than the appellant having a substantial point of law that she seeks to agitate on appeal. In my view, the correct place for this application to be ventilated is not before me. It is better addressed before an appeal court.
In those circumstances I refuse the application for a stay.
In my opinion the unsuccessful appellant should pay the costs of and incidental to this application. In making that order I have paid attention to the provisions and each of them under s 117(2A). Ms Swart herself conceded that the appellant’s financial circumstances were vastly more favourable than those of the respondent. There was no suggestion that either party was in receipt of legal aid.
As to the conduct of the parties, Dr Ingleby hinted at the dilatory approach that the appellant has adopted in this case, although I do not place a great deal of store on that. In terms of s 117(2A)(d) of the Family Law Act this application has not been necessitated by any particular failure. The appeal and hence the stay application today has been occasioned by the appellant’s dissatisfaction with my decision. Section 117(2A)(e) of the Family Law Act speaks of whether any party has been wholly unsuccessful in the proceeding. The appellant has been wholly unsuccessful on this application. There is no evidence of an offer in writing.
In my view there is merit in Dr Ingleby’s application for costs. I make an order in his client’s favour.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 11 October 2019.

Associate:

Date: 17 October 2019