Morse & Duarte (No 6)
[2024] FedCFamC1F 86
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morse & Duarte (No 6) [2024] FedCFamC1F 86
File number(s): SYC 737 of 2014 Judgment of: HARPER J Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application for stay of final property orders – Where final hearing proceeded on an undefended basis – Where no appearance by wife or second respondent at the final hearing – Where wife filed no material – Where no application for adjournment was made and no affidavit filed – Where final property orders required wife to vacate property within 14 days – Where wife argues that the appeal would be rendered nugatory if a stay were not granted – Where proposed grounds of appeal lack merit – Where the Court is not satisfied about bona fides of the application – Stay refused – Application dismissed – Wife ordered to pay the husband’s costs on a party/party basis Legislation: Constitution s 51
Family Law Act 1975 (Cth), s 79, 106A
Judiciary Act 1903 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.56
Real Property Act 1900 (NSW) s 42
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Morse & Duarte (No 5) [2024] FedCFamC1F 7
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 2 February 2024 Place: Sydney Solicitor for the Applicant: Mr Gittoes-Caesar of Lander & Rogers First Respondent: Litigant in person Second Respondent: No appearance ORDERS
SYC 737 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORSE
Applicant
AND: MS DUARTE
First Respondent
MR TOLMAN
Second Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Respondent Wife (“wife”) for a stay of the orders dated 18 January 2024 is dismissed.
2.Within 28 days of the date of these orders, the wife pay the Applicant Husband’s costs in the amount of $1500 plus GST.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morse & Duarte has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are property proceedings between the applicant husband, Mr Morse (“the husband”) and the respondent wife, Ms Duarte (“the wife”). The second respondent, Mr Tolman, has taken no part in the proceedings for some time and orders have been previously made which should have led to his removal as a party. The final hearing took place of the husband’s application for property adjustment, pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), on 15 January 2024. The wife did not appear at that final hearing. Judgment was delivered on 18 January 2024, Morse & Duarte (No 5) [2024] FedCFamC1F 7 (“Morse & Duarte (No 5)”). It set out part of the long and convoluted procedural history of these proceedings. I incorporate that history for the purpose of this judgment and will refer to aspects of it specifically where necessary for the sake of clarity.
The final orders made on 18 January 2024 required the wife to give vacant possession of B Street, Suburb C within 14 days, with leave for the husband to issue a warrant of possession if she failed to comply. Thereafter, in summary, the orders required the wife and the second respondent to transfer the Suburb C property to the husband and he is then required to sell it to receive 70 per cent of the net proceeds of sale, with the balance to be paid to the wife less an adjustment amount of $120,568. The wife filed a Notice of Appeal on 31 January 2024 together with an application for a stay of the final orders pending determination of the appeal. In support of her application, she filed an affidavit on 30 January 2024.
In light of the time limits including the issue of a warrant for possession adumbrated in the final orders, her application for a stay was urgently listed before me on 2 February 2024. The wife appeared electronically and the husband appeared by his solicitor. The husband was content for the application for a stay to be heard and determined on the basis of the parties’ submissions and he sought no leave or opportunity to file any evidence opposing the stay.
The matters to be considered in an application for stay pending appeal are well known and set out in the decision of Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18] (“Aldridge & Keaton”):
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
…
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
…
There did not seem to be any dispute between the parties as to the appropriate matters to be taken into account. In support of her application, the wife filed written submissions upon which she relied. In those written submissions, it was her position that four of the factors identified in Aldridge & Keaton were of particular significance for the determination of the present application. Namely:
(a) The applicant does not have to make out ‘special’ or ‘exceptional’ circumstances beyond the presence of arguable grounds of appeal;
(b) The bona fides of the applicant are relevant;
(c) The balance of convenience is a significant factor; and
(d) If granting a stay would render the appeal ‘nugatory’, this will be a substantial factor.
(Wife’s written submissions filed 31 January 2024, paragraph 10) (Emphasis in original)
I accept those matters are relevant but have taken into account all the other relevant matters which were set out in Aldridge & Keaton, including the fact that the person who has obtained a judgment is entitled to the benefit of that judgment and is entitled to presume the judgment is correct. It is also clear that the mere filing of an appeal is insufficient to support the grant of a stay. The wife contended that her appeal was arguable and that she had brought it bona fide. The husband put both of those contentions in issue in his submissions. Accordingly, it will be necessary to have regard to the grounds of appeal in more detail than is often the case on an application for a stay. Before I turn to those grounds, it is helpful at this point to summarise the nature of the evidence upon which the wife relies in her affidavit filed 30 January 2024.
In summary, she maintains in the affidavit that she is the registered proprietor of the Suburb C property and holds an estate in fee simple. This, as things presently stand, is not entirely accurate in the sense that Mr Tolman remains a registered proprietor as I understand it, because earlier orders of the Court which would have resulted in his removal as a registered proprietor leaving the wife as the sole registered proprietor have not been complied with. Be that as it may, as set out in earlier decisions in the proceedings, there was no dispute that Mr Tolman made no contribution to the purchase of the Suburb C property and all the purchase monies came from resources of the wife, subject to these property adjustment proceedings.
It was not contended by the husband that he had any equitable interest in the land. The affidavit of the wife sets out the fact that she does not consent to the husband entering the land and does not wish him to because of what she claims to be an earlier history going back to 2013 of some elements, aspects, or incidents of violent behaviour by the husband. I pause here to observe that the parties have been separated for many years and the children of the relationship currently reside with the husband and spend no time with the wife. The wife also records in her affidavit some interaction in the middle of 2023, by telephone with the children of the relationship in which they made comments suggesting they wished to have little or no contact with her. The wife characterises this as a form of psychological abuse over the telephone.
The wife continues that she does not consent to any official of the Commonwealth of Australia (“Commonwealth”) entering the land, nor to any transfer of land to the husband including any subsequent registration of the land in his name. She makes clear she has at no time formed any intention to assign the Suburb C property to the husband. In her affidavit, she says, at paragraph 23:
I assert that the appeal is intended to protect (a) my proprietary land right of estate in fee simple, (b) my right of natural justice, and (c) the interests held by myself and my children in the health and welfare of myself and my household.
She then annexes some medical certificates from general practitioners which list a range of health issues from over the past year which together have been diagnosed as stress disorder symptoms. She says she has a level of local support in the neighbourhood of Suburb C, but all her relatives live interstate and overseas. In her affidavit, she also states that she has the sole care of two children who are the result of her relationship with Mr Tolman.
Finally, she annexes some medical certificates which were mentioned in the substantive judgment and provided to my chambers by email on 14 January 2024. She does not receive any income other than a parenting pension, and earnings from occasional work which have not risen to the level of any taxable income for the past three years.
I turn then to the grounds of appeal which can be summarised as follows. Ground 1 alleges that Orders 1 to 4, 12, 19 and 21 are invalid because the wife holds title under the provisions of the Real Property Act 1900 (NSW) (“Real Property Act”), and unless the wife is paid just compensation, the consequence of the Court’s orders would be an extinguishment of her proprietary right by an instrument of the Commonwealth without just compensation, which is required by s 51(xxxi) of the Constitution.
As I understood her submissions to support this ground, the wife argues that Order 5 of the final orders, or perhaps the entirety of the orders together, constitute an instrument of the Commonwealth. The wife did not explain in her submissions, nor did she cite any authority to support the assertion that orders of a superior court of record constituted under ch 3 of the Constitution were relevantly an instrument of the Commonwealth. I am not aware of any such authority, and I am not satisfied that the orders of the Court do constitute any such instrument. It is apposite here to reiterate that the wife did not attend the trial and did not put as a submission any constitutional issue. It was her contention in her oral submissions that her absence of participation at the trial was irrelevant because questions of jurisdiction are not something that the parties can bestow on the Court by consent.
However, if she intended to raise a constitutional issue, it was, of course, open to her to undertake the usual course under the Judiciary Act 1903 (Cth) and provide notices to the Attorney-General if that was the appropriate course to take. I am not satisfied that Ground 1 has any prospects of success. Ground 2 asserts that Orders 1 to 12, 13(a), 14(a), 19 and 21 were made without jurisdiction because they impermissibly trespass upon her indefeasible title to the Suburb C property which arises pursuant to the provisions of the Real Property Act, particularly s 42, and that the orders would impair the functioning of a State authority, being the New South Wales Land Registry; and furthermore, the power to alter property interests in s 79 of the Act breaches the concept of judicial power of the Commonwealth.
Of course, none of these arguments were presented by her at the trial when she was not present. In my view, this ground as formulated misconceives the operation of s 79. The wife, neither in Ground 2 or any of her written or oral submissions, provides a basis for the contention that s 42 of the Real Property Act, which is State legislation, constrains the broad discretion in s 79, which is a Federal statutory provision to alter property interests of parties to a marriage. No conflict between the two provisions is identified. The provisions of the Real Property Act permit the transfer of registered interests in land in accordance with a well-known process, and the final orders of this Court, made 18 January 2024, have the effect of compelling the parties to bring about that transfer according to those processes.
The wife does not explain how the functioning of the New South Wales Land Registry could be impaired in those circumstances by the alteration of her individual property interest, pursuant to s 79. Again, in my view, Ground 2 is misconceived and has no prospect of success. Ground 3 challenged Order 2 as based upon r 11.56(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The wife argues that the rule is beyond the rule making power of the Court but does not give any explanation in her submissions as to why this conclusion is correct. She says in her written submissions, at paragraph 17:
In Grounds 3 and 4, the wife attacks the relevant enforcement powers by using basic principles of statutory and Constitutional interpretation. This style of argumentation is available and not controversial. Application of conveyancing law to Ground 4 also ought not to be controversial.
Ground 4 asserts that Order 21, which is an order in standard terms empowering a Registrar to execute deeds, documents or instruments pursuant to s 106A of the Act in the event there is default in compliance by one of the parties in doing so, is invalid or ultra vires. It was not argued in any way that I could see by the wife that this order breached the concept of the Court’s judicial power and no particularity in support of that contention was given. I am not satisfied Grounds 3 and 4 have any prospect of success. Ground 5 raises questions of procedural fairness. I note here that the evidence provided at the trial which was unchallenged showed that the wife was served with sealed copies of procedural orders made on 10 August 2023, was informed by the solicitors for the husband of the outcome of the procedural hearing on 8 December 2023, and clearly knew that the final hearing was listed to commence on 15 January 2024.
She failed to attend Court on each of those nominated dates and made no attempt to comply with procedural directions of the Court for preparation for final hearing. She filed no affidavit of consolidated nature, any case outline or other material which could have been considered by the Court to support any argument she wished to make to counter the proposal made by the husband. The fact of the existence of medical certificates upon which she relied to avoid the trial proceeding were specifically considered by me in the substantive judgment (Morse & Duarte (No 5) at [22]–[23]). At [23], I said:
Counsel for the husband accepted that it would be appropriate for the Court to give consideration to the matters raised by the wife’s email [attaching medical certificates]. I have given them consideration. In my view the wife has provided no proper basis for adjourning the final hearing. There is no affidavit which annexed any compelling medical evidence. Her non-attendance at the compliance hearing on 8 December 2023 and her failure to file any material in relation to the final hearing commencing on 15 January 2024 indicate a failure to remain engaged with the process.
The other matters raised by the formulation of Ground 5 of the wife’s Notice of Appeal advert to improper service upon her of the husband’s Sixth Amended Initiating Application, “insufficient response time and lack of compulsory pre-trial processes”, no service of the husband’s Sixth Amended Initiating Application upon the children who reside at the Suburb C property, and insufficient weight being given to her medical certificates.
The final matter she points to is the fact that the trial proceeded on the basis of the husband’s Sixth Amended Initiating Application when it should have been the Fifth Amended Initiating Application. I am not satisfied that any of those matters are either established factually, or either alone or in combination could possibly justify the final orders being disturbed on appeal. Accordingly, I conclude that Ground 5, also, has no prospect of success.
The lack of merit in the proposed grounds of appeal, in my view, support the inference that the wife has not brought the appeal bona fide, which was the submission of the husband. His submission was that I should infer it is an attempt of which there appear to have been a number in the course of the proceedings by the wife to delay the inevitable consequence of the final orders. I accept there is force in that submission. Her conduct during the proceedings and as described in the substantive judgment, also, supports this inference. The husband is entitled to the fruits of his judgment. He has been denied an outcome on a final basis for his property adjustment application for the last four and a half years since the matter was remitted for a rehearing on financial issues in June 2019.
The wife submitted that her participation at the final hearing was irrelevant because of the nature of her grounds of appeal. I do not accept that submission. She does not in any of her material contend that there was a different exercise of discretion, pursuant to s 79, open to the Court which she propounded on her own behalf quite outside the purported issues of Constitutional validity and an excess of judicial power. In my view, if she had taken and engaged a bona fide approach to the resolution of the property dispute between the parties, it would have been unarguable that she should have attended the trial and put forward a proposal for the outcome which was arguable according to the law, the jurisprudence, which is well developed under Pt VIII of the Act, and in particular, s 79.
The wife made much of the fact that it was conceded by the husband that her appeal would be rendered nugatory, in the sense that if there is no stay of the final orders, it is likely that the processes bringing about the transfer and then sale of the Suburb C property will proceed, and that if her appeal was ultimately successful, she would not be able to be restored to her former position. The wife contended that factor outweighed all the others. However, the matters that I had averted to a moment ago, that is, no proposal at final hearing by the wife of an outcome which could avoid in the circumstances of this case the sale of the Suburb C property, nor any contention raised by her grounds that the percentage assessment of contributions undertaken in the substantive judgment should be challenged.
In my view, there is nothing put forward by the wife which suggests that the sale of the Suburb C property is not inevitable in the circumstances of this case to achieve a just and equitable outcome between the parties. I have taken account of all the matters which the wife has set out in her affidavit to the extent they are relevant to the grant of the stay. None of them persuade me that in the circumstances it is appropriate to grant a stay of the final orders. Accordingly, I am not satisfied it is appropriate to accede to the application for a stay.
The husband seeks costs on a party/party basis of the Application in a Proceeding in the sum of $1500 plus GST. The wife opposes any order for costs. The wife has been wholly unsuccessful, and I also take account of her conduct during the proceedings and the fact that I was unpersuaded her appeal was brought bona fide. In those circumstances, I consider an order for costs of $1,500 representing costs on a party/party basis is reasonable.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 21 February 2024
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