MONFORT & BADE
[2016] FamCAFC 38
•17 March 2016
FAMILY COURT OF AUSTRALIA
| MONFORT & BADE | [2016] FamCAFC 38 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application to file out of time an amended Notice of Appeal for each appeal and a summary of argument for each appeal – Where the orders the subject of appeal provided for the sale of certain properties – Where the appellant concedes to consenting to orders for the sale of property – Where the orders do not characterise the source of power permitting such orders – Where the orders sought by the appellant on appeal are the subject of applications before the primary judge – Where the appellant provides an adequate explanation for the delay, little merit in the appeals and prejudice is caused to the respondent – Application dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where there is little merit in the existing appeals and no summary of argument was filed on time – Where the orders are interlocutory in nature – Leave to appeal refused. |
Family Law Act 1975 (Cth) s 114
Family Law Rules 2004 (Cth) rr 1.11, 1.14, 22.45(2)(a)(i)
| APPELLANT: | Ms Monfort |
| RESPONDENT: | Mr Bade |
| FILE NUMBER: | BRC | 4638 | of | 2014 |
| APPEAL NUMBER: | NA | 72 | of | 2015 |
| NA | 86 | of | 2015 |
| DATE DELIVERED: | 17 March 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 17 March 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 September 2015 9 November 2015 |
| LOWER COURT MNC: |
REPRESENTATION
| FOR THE APPELLANT: | Ms Monfort (in person) |
| SOLICITOR FOR THE RESPONDENT: | Porter Galea Lawyers |
Orders
The Application in an Appeal filed 11 March 2016 be dismissed.
Leave to appeal in appeals NA72 of 2015 filed 12 October 2015 and NA86 of 2015 filed 25 November 2015 is not granted and the appeals be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Monfort & Bade has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA72 of 2015 and NA86 of 2015
File Number: BRC4638 of 2014
| Ms Monfort |
Appellant
And
| Mr Bade |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal NA72 of 2015 filed 12 October 2015 and Notice of Appeal NA86 of 2015 filed 25 November 2015, Ms Monfort (“the appellant”) appeals orders of Judge Willis made on 15 September 2015 and 9 November 2015 respectively. These orders provided for the sale of a number of properties owned by the appellant and Mr Bade (“the respondent”) and other consequential orders.
On 11 March 2016 the appellant filed an Application in an Appeal seeking leave out of time to amend each appeal and also file a summary of argument for each appeal.
The application is opposed for a range of reasons including the appellant’s previous non-compliance with a direction to file submissions.
Background and Reasons of the Primary Judge
On 27 May 2014 the appellant filed an Initiating Application seeking interim spousal maintenance, disclosure of financial information, the appointment of a single expert to value the properties and that the parties attend a conciliation conference. The appellant sought final property orders that the assets be divided 80 per cent to the appellant and 20 per cent to the respondent.
The respondent also filed applications seeking orders dividing the parties’ property.
There are three properties central to the dispute between the appellant and the respondent:
a)The X Property;
b)The Y Property; and
c)The Z Property.
The appellant lives in the Y Property and the respondent lives in the X Property.
On 28 July 2014 Judge Jarrett made orders dismissing the appellant’s application for interim spousal maintenance and requiring her to file an amended initiating application setting out in full the “precise orders she seeks to be made by way of property adjustment.” The matter was adjourned.
On 4 August 2015 the appellant filed an amended initiating application seeking interim spousal maintenance and sought final orders, inter alia, for the assets to be divided 80 per cent to the appellant and 20 per cent to the respondent, with the respondent to transfer the Y Property to the appellant and the parties to sell the other two properties. The respondent in his response sought final orders for all properties to be sold, with the proceeds to be divided equally.
On 12 August 2014 Judge Jarrett made interim consent orders dismissing the appellant’s application for interim spousal maintenance, and ordered valuations to be obtained of the properties.
On 12 May 2015 the parties appeared before Judge Willis. It was ordered by consent that the X Property be sold, with the funds to be applied first to pay all costs, commissions and expenses associated with the sale, secondly to discharge the mortgage over the X Property and thirdly, any balance to be applied to the mortgage over the Y Property. The consent orders further provided for the whole of the rental proceeds from the Z Property to be paid to the appellant.
On 3 August 2015 the appellant filed an application in a case seeking orders pursuant to r 1.11 of the Family Law Rules 2004 (Cth) (“the Rules”) that the consent orders be varied or set aside. In the event the court did not grant that order, the appellant sought in the alternative pursuant to r 1.14 of the Rules the appellant be granted an extension of time to comply with the consent orders “until such time as the parties are close to reaching an agreement for settlement.”
On 9 September 2015 the appellant filed an application in a case for urgent spousal maintenance.
The parties appeared before Judge Willis on 15 September 2015, with the appellant appearing in person. There are no reasons for the orders made that day, they being largely by consent. The transcript reveals the submissions and the comments made by the primary judge.
The appellant submitted she was receiving an income of approximately $200 per week rent from the Z Property, being half the rental income.
Further, that due to this limited financial income, combined with mental health issues, she was in financial distress and required spousal maintenance.
The solicitor for the respondent submitted that the original consent orders of 12 May 2015 required the sale of the X Property which would provide some liquidity and cash to support the appellant.
The solicitor explained that the appellant contravened the 12 May 2015 orders to effect the sale of the X Property and the deadline for such order had passed. In the meantime, the Z Property had been listed for sale. The solicitor explained:
MR GALEA:It’s conceded by my client that a large portion of these – or the equity in these properties is – in the orders he seeks is going to go to the applicant anyway. In a nutshell, your Honour, the sticking point in this whole matter is that the applicant seeks – and we understand how she feels – she seeks to be left with a property in her name. The problem as we see it and my client instructs – and the figures seem to bear that out – is that there’s insufficient equity between the three properties in whatever combination you sell them to enable the mortgages to be paid out, leaving sufficient equity from the balance of proceeds of sale to purchase one property.
The net result of that would be that my client would have to borrow money from a bank to – if you were going to have an ongoing liability to pay a mortgage, you would have to borrow money from a bank. He made inquiries of whether that was possible and, in a nutshell, your Honour, was told that he couldn’t borrow money unless he was a co-owner of the property and a co-mortgagor, and, from my experience as a property lawyer, that’s entirely correct, your Honour. So we say that it’s impossible based on current market value for – as valued by the expert valuer – for any two of the properties to be sold to enable the third one to be retained. Unfortunately, your Honour, the applicant’s preference of retention of property is the more expensive property at her home at [the Y Property].
(Emphasis added)
(Transcript, 15 September 2015, p 12, l 23 – 43)
The appellant firmly opposed this view, and asserted that based on the advice she had received there would be sufficient liquidity to enable her to retain the Y Property. The primary judge noted that it was the appellant’s actions which delayed the sale of the X Property. The appellant stressed that she did not want to be left homeless and the consent orders, as she envisaged them, would leave her with no home.
The primary judge confirmed with the appellant that if she were left with a property in her name, she would be unable to pay the mortgages owing on any of them – and in particular the Y Property. As the judge explained, the fact remains that no matter how the property pool is constructed, there may be insufficient equity to retain the Y Property. The appellant does not accept that this is necessarily correct. It seems there are numerous issues to be decided in relation to property settlement.
The appellant remains opposed to the finding that she has been non-compliant, but agrees she did consent to the sale of the X Property. Judge Willis made the following orders on 15 September 2015, the subject of the Appeal NA72 of 2015:
IT IS ORDERED UNTIL FURTHER ORDER:
[X] Property
1.BY CONSENT Orders 1-5 of the Orders of this Court dated 12 May 2015 in respect of the [X Property] commence from the date of these Orders NOTING THAT the [appellant] has not cooperated in all respects with the provisions providing for sale of that property.
2.If either party refuses or neglects to sign any document or do all acts and things necessary to implement the Orders for sale of [the X Property] within forty eight (48) hours of a request to do so, the Registrar of the Federal Circuit Court of Australia is appointed to execute such document on behalf of that party, with an affidavit deposing to the failure of the party to comply with the Orders being sufficient evidence.
[Z] Property
3.That the [respondent] and the [appellant] forthwith do all acts and things and sign all necessary documents to effect a sale of the property situated at [the Z Property] and by way of consequential arrangement that shall be made for the purposes of effecting a sale:
a.The listing price for the [Z Property] property shall be as agreed between the parties and if there is no agreement then it shall be $650,000 (with a reserve of $580,000).
b.The [Z Property] shall be listed for sale by private treaty with such agent as agreed to between the parties and if there is no agreement within 7 days of the date of these orders then the [appellant] shall, within a further 7 days, nominate a panel of 3 agents from which the [respondent] shall, within 7 days of provision of the panel of 3 agents, select the selling agent. If the [appellant] fails to nominate a panel of 3 agents within the time prescribed then the [respondent] shall select the selling agent. If the [respondent] fails to select the agent from the panel nominated by the [appellant] within the prescribed time then the [appellant] shall select the selling agent.
4.In the event that the [Z Property] has not been sold by or before a date three (3) months from the date of these orders then the [respondent] and the [appellant] shall make all such arrangements and do all such acts and sign all such documents and pay all moneys equally necessary to procure a sale by public auction of the [Z Property] upon the following terms:
a.the auctioneer shall be nominated by the selling agent;
b.the auction shall take place by two (2) months after the deadline date for sale by private treaty;
c.the reserve price shall unless agreed upon by the parties be $580,000;
d.the [respondent] shall pay and be responsible for payment of the auction expenses payable before the [Z Property] is auctioned but will be entitled to be repaid from the proceeds of sale.
5.In the event that the [Z Property] is not so sold by auction or by private negotiation within fourteen (14) days after the said auction then the [respondent] and the [appellant] do all such acts and sign all necessary documents and the [respondent] shall pay all money necessary to procure a second auction within a further six (6) weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
6.Upon completion of the sale the proceeds of the sale be applied as follows:
a.Firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the [Z Property];
b.Secondly, to discharge the mortgage and any other encumbrances affecting the [Z Property];
c.Thirdly, the balance to be applied to the payment of any mortgage balance owing with respect to the property situated at [the Y Property].
Other Orders
7.BY CONSENT the Respondent do pay to the Applicant maintenance at the rate of $250 per week until the next mention on 9 November 2015 or until the matter is otherwise next heard by Judge Willis.
8.Liberty to apply on short notice in the event that it is considered by the Respondent that the Applicant is refusing an otherwise appropriate offer on the [Z Property].
Although not determinative in relation to this appeal, it should be noted that the orders do not characterise the source of power permitting such orders. At first sight, they appear to be partial property orders however the solicitor for the respondent insists that they are pursuant to s 114(1) of the Family Law Act 1975 (Cth).
The appellant filed a further application in a case on 29 October 2015 seeking a stay of the orders made on 15 September 2015, pending appeal NA72 of 2015.
The parties appeared before Judge Willis on 9 November 2015. The appellant instructed counsel to appear on her behalf in Cairns. For reasons explained by counsel, the appellant was in Brisbane and listening to the proceedings by telephone.
The appellant’s counsel confirmed that a contract and transfer had been signed for the Z Property. The primary judge asked the appellant’s counsel if there were any outstanding matters and counsel responded that there was nothing further, but did note an appeal had been filed. A minute of consent orders was provided to the judge.
The primary judge made the following orders which are now subject of the appeal NA86 of 2015:
BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER:
1.The applications in a case filed 3 August 2015, 9 September 2015 and 29 October 2015 be dismissed.
2.That if either party refuses or neglects to sign the transfer form and mortgage discharge authority within seven (7) days of the date of these Orders or otherwise refuses to sign any document to do anything necessary to implement the Orders for the sale of the [Z Property] within forty eight (48) hours of a request to do so, the Registrar of the Federal Circuit Court of Australia is appointed to execute such document on behalf of that party, with an affidavit deposing to the failure of the party to comply with the Orders being sufficient evidence.
3.That the Respondent pay to the Applicant maintenance at a rate of $250 per week until further order.
…
These orders are consistent with the written orders provided to the judge by the lawyers representing the parties.
The Application in an Appeal
In the appellant’s Application in an Appeal filed 11 March 2016, the amended grounds of appeal for NA72 of 2015 include as follows:
1.Apprehended bias [on the part of Judge Willis];
2.Applied a wrong principle of law by failing to consider rectification for non-compliance or to offer relief for non-compliance under Rule 11.03 of the Family Law Rules 2004;
3.Applied a wrong principle of law by not giving adequate Reasons for Judgement [sic];
4.Applied a wrong principle of law by failing to set out the effect of the orders;
5.Applied a wrong principle of law by deviating from the established principle in family law proceedings that there be one final hearing of Section 79 proceedings.
6.Made a finding of fact or facts on an important issue which could not be supported by the evidence that the [respondent] was “crippled under debt” and was “each week spending more than he earns to keep up with the debts”;
7.Made a finding of fact or facts on an important issue which could not be supported by the evidence Setting Sale prices for the 2 Real Properties in absence of current valuation evidence;
8.Exercised her discretion to arrive at a decision which was clearly wrong to make orders to sell the [X Property] without hearing the [appellant]’s application in a case and to sell the [Z Property] with haste and without notice;
9.Exercise her discretion to arrive at a decision which was clearly wrong to make the orders without the [appellant] seeing a draft of the orders first. This was a denial of procedural fairness and denial of natural justice.
It was explained to the appellant that the application in relation to bias should first be made to the primary judge. Such an application has been filed.
The appellant appreciates that leave to appeal is required, and the basis is set out for each ground in the proposed amended Notice of Appeal.
In the appellant’s application filed 11 March 2016, the amended grounds of appeal for NA86 of 2015 are as follows:
1.Apprehended Bias
2.Applied a wrong principle of law by not giving adequate Reasons for Judgement [sic]
3.Applied a wrong principle of law by not setting out the effect of the orders.
4.Applied a wrong principle of law by denial of procedural fairness and denial of natural justice
5.Exercised her discretion to arrive at a decision which was clearly wrong
The Application in an Appeal should be dismissed. An order was made on 14 December 2015 providing that the appellant file and serve a Summary of Argument on or before 12 February 2016. The appellant never filed a summary of argument. The solicitor for the respondent explains that he only recently received the application and affidavit and that he is unable to respond without further instructions. He asked that the appeals be dismissed by reason of the failure to comply with the direction to file a summary of argument.
The appellant provides an adequate explanation for the delay in the affidavit filed with the Application in an Appeal (which attaches the proposed amended notices of appeal and summary of arguments) including a motor vehicle accident, an accident at home and a bereavement. There are documents attached to her affidavit to support the occurrence of two accidents and her medical condition.
As mentioned, one question is what is the nature of the orders and what power did the judge have to make such orders? The appellant contends that a single property order should have been made in this case. There may have been merit in this argument but for two factors:
·the source of the power was, it was submitted s 114(1); and
·the orders were by consent.
However, the application will not be allowed because there is no merit in the appeals, even as amended. Leave would not be given to pursue such appeals.
In addition, the appellant was advised in a letter from the Appeals Registrar on 1 March 2016 that her failure to file and serve the summary of argument and list of authorities by 12 February 2016. The Appeals Registrar advised the appellant that pursuant to r 22.45(2)(a)(i) of the Rules the court may dismiss an appeal if an appellant is the defaulting party who has failed to comply with an order in relation to the appeal.
The Appeals
NA 72 of 2015
There is no doubt that the orders in relation to the X Property were made by consent. The appellant’s argument is that the value of the property has changed and she should not be placed in the position of being forced to sign a contract. The remedy for this concern is an application, accompanied by evidence seeking to vary the order. There is nothing about the orders made on 12 May 2015 and the following order on 15 September 2015 which provides any proper ground of appeal.
As to the Z Property, there may be a question as to whether the appellant consented to these orders. The appellant sensibly concedes that as that property is now sold it is pointless to seek any orders in the respect.
NA 86 of 2015
As mentioned already, the appellant was represented by counsel when these orders were made. The appellant particularly complains that she did not give instructions that her application filed 3 August 2015 be dismissed. It is not a matter with which an appeal court can proceed to set aside orders in the absence of evidence. The court is entitled to assume that the barrister has the instructions for such orders to be made. Save for an absence of power to make the orders or demonstrated procedural unfairness, it is difficult to contend on appeal that consent orders should be set aside. The appellant was not able to demonstrate any lack of procedural fairness.
Although the appellant asked in her Amended Application filed 4 August 2014 for property settlement orders that the X Property and the Z Property be sold and in her interim application that the X Property be sold, it seems that she is now apprehensive about such sale. Her only remedy is to file a further application in the Federal Circuit Court in this respect.
The solicitor for the respondent most helpfully indicated that he intended to obtain up to date valuations from the single expert. In addition, that should a contract for the sale of the X Property be signed he would not without reference to the appellant, seek the signature of a Registrar as presently provided in the orders.
Conclusion
There being no merit in the appeals, the orders being interlocutory in nature, leave should not be allowed and the appeals dismissed.
Costs
The solicitor for the respondent indicated that he would seek costs. Although the respondent would have incurred some expenses in relation to the appeals and the appeals have been wholly unsuccessful, the appellant’s current financial circumstances are poor. There should be no order as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 17 March 2016.
Associate:
Date: 17 March 2016
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