Morse & Duarte (No 7)
[2024] FedCFamC1F 264
•18 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morse & Duarte (No 7) [2024] FedCFamC1F 264
File number: SYC 737 of 2014 Judgment of: HARPER J Date of judgment: 18 April 2024 Catchwords: FAMILY LAW – STAY – Where wife seeks stay of final orders pending outcome of the appeal – Where wife’s previous application for a stay dismissed – Where wife seeks to found second application for a stay on new grounds of appeal – Where no prospects of success in grounds of appeal – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 4, 79, 80, 106A
Judiciary Act 1903 (Cth)
Real Property Act 1900 (NSW) ss 42, 43
Cases cited: Morse & Duarte (No 5) [2024] FedCFamC1F 7
Morse & Duarte (No 6) [2024] FedCFamC1F 86
Division: Division 1 First Instance Number of paragraphs: 40 Date of hearing: 18 April 2024 Place: Sydney Solicitor for the Applicant: Mr Doyle of Lander & Rogers The First Respondent: Litigant in person The 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:
18 APRIL 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 9 April 2024 be dismissed.
2.The Respondent Wife pay the Applicant Husband’s costs in the sum of $1,500 within 28 days.
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”).
Proceedings have been in this Court for a period of about a decade, having concluded parenting issues. Final orders were made in 2017 concerning all issues, were the subject of an unsuccessful appeal concerning parentings orders and the financial issues were remitted for rehearing.
The trial pursuant to the remitter was listed on 15 January 2024. A hearing took place without the wife being present after she had failed to comply with directions of the Court for preparation for final hearing.
Final orders were made after judgment was delivered on 18 January 2024 (Morse & Duarte (No 5) [2024] FedCFamC1F 7 (“Morse & Duarte (No 5)”)). That judgment set out the long and convoluted procedural history of these proceedings. The wife then appealed the final orders and an application for a stay of the orders was listed before me on 2 February 2024. I delivered judgment ex tempore on that date dismissing the wife’s application for a stay and published reasons (Morse & Duarte (No 6) [2024] FedCFamC1F 86 (“Morse & Duarte (No 6)”)).
I incorporate the reasons in Morse & Duarte (No 6) and Morse & Duarte (No 5) for the purposes of this judgment.
The wife then filed a further application for a stay on 9 April 2024, supported by an affidavit sworn on 8 April 2024 but bearing a sealed date of 17 April 2024. That affidavit annexes a Further Amended Notice of Appeal which now constitutes the basis upon which the wife seeks to appeal from the final orders made on 18 January 2024.
The wife has filed a further application for a stay of those orders based upon the Further Amended Notice of Appeal.
The principles applicable to an application of a stay pending appeal are well known, and I adverted to them in Morse & Duarte (No 6) at [4].
The Further Amended Notice of Appeal has expanded the number of grounds of appeal to 13, all of which contain numerous subparagraphs.
The law is well settled that to bring a second interlocutory application based upon the same matters which were the subject of determination in an earlier interlocutory application, of which a stay application is one species, in the normal course would constitute an abuse of process.
The wife contends that the grounds articulated in her Further Amended Notice of Appeal raise fresh and different issues.
There was no dispute that the husband is entitled to assume the original judgment was correct and that he is prima facie entitled to the benefit of that judgment.
It is necessary, however, for the purpose of this judgment to give some consideration to the further amended grounds of appeal.
The wife argued strongly that I should draw a distinction between the arguability of the grounds of appeal and their prospects of success. It is not clear to me why that is a real distinction rather than a distinction without a difference. In Morse & Duarte (No 6) I formed the view that none of her proposed grounds had a prospect of success which would lead to the conclusion they ought to be summarily dismissed. Inherent in that conclusion was also the conclusion that her grounds were not arguable.
Be that as it may, turning to the grounds in the Further Amended Notice of Appeal, Grounds 1, 2 and 3 challenge most of the final orders on the basis that they are ultra vires. Being as charitable as I can, I am unable to follow the formulation of Grounds 1, 2 and 3 clearly. However, in her submissions the wife emphasised that a fundamental flaw, according to her, in those orders was that they conflated the difference between future and existing property.
For example, Ground 2 states as follows:
Order 17 is ultra vires any possible relevant power because (i) the material of the order is’ property ‘in action’ and hence outside the scope of the definition of ‘property’ in the Family Law Act 1975 (Cth)] s 4; and/or (ii) the material includes future material to which the Court is blind; and/or (iii) even if the material is a valid subject for the order, it does not ‘adjust’, ‘settle’, or ‘transfer’, or function in any relevant ancillary capacity in relation to such verbs.
(As per the original)
To the extent the grounds of the appeal rise or fall upon a distinction between present and future property, in my view that is not arguable. The definition of “property” in s 4 of the Family Law Act 1975 (Cth) (“the Act”) is very broad:
property means:
(a)In relation to the parties to a marriage or either of them – means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
…
It has long been held that it includes not only real property but personal property of any kind including choses in action. Accordingly, the Court cannot be blind to future property which is constituted in a chose of action, for example.
The simple proposition that needs to be spelt out here is that s 79 of the Act gives the Court authority to decide how a discretion to divide “property of the parties to a marriage or either of them”, should be exercised and it gives the Court the powers which, combined with s 80(1), enable the Court to make any orders that are appropriate, just and equitable to effect such a division in the circumstances of a given case.
Accordingly, I am not satisfied that the Grounds 1, 2 and 3, set out in the Further Amended Notice of Appeal, raise an arguable question to be determined by an appellate court.
Ground 4 is put forward as an alternative to Ground 3 in the event Ground 3 fails. It refers back to Ground 3 and again seems to be based upon the purported distinction between present and future property. Accordingly, I cannot see how it is arguable either.
Ground 5 also refers back to Ground 3 and purports to raise similar questions. Accordingly, again, I cannot conclude it is arguable. Furthermore, it also makes reference to issues of indefeasibility adverted to in s 42 and s 43 of the Real Property Act 1900 (NSW). Those were matters which were subject of Morse & Duarte (No 6) and to that extent it is an abuse of process, in my view, for the wife to seek a stay based upon the same considerations.
Ground 6 refers back to Grounds 3 to 5 and is an alternative in the event Grounds 3 to 5 fail. The way that Ground 6 is formulated appears to mean that the Orders 5 and 10 of the final orders do not affect an adjustment within the meaning of s 79(1)(a) or other subparagraphs of s 79(1). In my view that simply purports to, quite unjustifiably, atomise the orders that were made by separating Orders 5 and 10 from the full suite of the final orders which, in my view, taken together unarguably fall within the discretion and powers of the Court in s 79 and s 80.
Ground 7 is said to be based upon an impermissible reopening of concluded financial relations. This is also an argument which was made to the Court in the context of the previous stay application and constitutes an abuse of process for that reason. However, I note that it is impossible to see how that could be arguable in circumstances where the financial issues were remitted by the Full Court for rehearing by a judge at first instance, which ultimately happened to be me.
Ground 8 then asserts a miscarriage of discretion being my failure to turn my attention to or accord insufficient weight to various aspects of the ownership of the land which is primarily in contention at Suburb C and other contentions of failure to consider relevant matters. It is difficult to see how such a ground could possibly be arguable on appeal when the wife failed to appear at the final hearing, failed to file any affidavit material in accordance with the Court’s directions and any case summary document which could possibly have directed to the Court’s attention, for example, what weight should be attributed to any matter or contribution in the context of these parties’ property and relationship.
Ground 9 then turns to what are described as “Combined Legal and Constitutional Grounds”. Constitutional grounds were raised by the wife in her earlier application for a stay and in my view it is an abuse of process to run the same arguments in this stay application. To the extent there is any fresh material, it appears to lie in the fact that she has taken the appropriate steps to serve Attorneys-General of the State, Territories and Commonwealth pursuant to the provisions of the Judiciary Act 1903 (Cth). I was told, and it appeared not to be in dispute, that the Attorneys-General who were served with the relevant notices have all responded saying they do not wish to participate, apart from the Attorneys-General of New South Wales and the Commonwealth. I place no weight on that fact in these reasons for my present decision.
Be that as it may I am not persuaded that Ground 9 raises any matter of a constitutional nature which would be arguable on appeal. In particular, I note that one assertion at Ground 9(h) is a “contamination” of the proceedings by reason of some asserted connection between counsel appearing for the husband and an earlier judge of this Court who determined the first trial of financial and parenting issues in 2017. In my view those asserted matters do not raise any contention which could be arguable on appeal.
There are then set out new paragraphs 9A, 9B, 9C and 9D which, in a way that is impossible to comprehend, draw some connection between the original trial judge in 2017, and barristers who are currently located in a chambers called AL Chambers (“the AL Chambers connection”). These matters do not in my view raise any issue which could rationally lead to a conclusion of apprehension of bias in the judgment I delivered on 18 January 2024.
Paragraph 9B of the grounds suggest that there was some denial of procedural fairness, as I understand it, in dismissing the wife’s Response and proceeding on the basis of the husband’s Sixth Amended Initiating Application. This was also an issue that was dealt with in my earlier judgment and the application before me constitutes an abuse of process to the extent that it purports to run the same argument. Paragraph 9B also points to purported defaults by the husband in relation to orders or directions of the Court, but in my view, none of those matters could possibly be material to the ground as formulated or other grounds of appeal.
Paragraph 9C contends the I failed to afford the wife procedural fairness by proceeding in her absence, being misled by representatives for the husband where the so called AL Chambers connection was somehow in play. Again, I consider this ground to be unarguable in the sense that it has no prospect of success. The same matters appear to be asserted in a slightly different form in paragraph 9D which, therefore, is not arguable for the same reasons.
Grounds 10 and 11 return to issues of purported constitutional invalidity and in my view they constitute an abuse of process because they have already been the subject of an earlier consideration and determination by the Court.
Ground 12 is asserted to raise a flaw in Order 2 because there is a want of a jurisdictional fact, however, a consideration of Morse & Duarte (No 5) in my view, demonstrates that this ground could not possibly succeed because it makes reference to such things as a conflation of possession and license and appears to misunderstand the nature of the orders that were made on a final basis.
Finally, Ground 13 contends that Order 21 which refers to s 106A of the Act is ultra vires because it ought to be read down in specified ways. The section has been utilised and upheld on numerous occasions in this Court over the past 40 years and I do not consider that Ground 13 formulates any basis upon which the reference to s 106A renders the order ultra vires.
The husband contended that, as I held in Morse & Duarte (No 6), this application for a stay is not brought bona fide by the wife. He pointed to the unhappy history of continuous applications by the wife in respect of which she was largely unsuccessful in the period, for example, in the four years since January 2020.
The wife contended that the question of whether her application for a stay was brought bona fide is determined by reference to whether her grounds of appeal are arguable and any defaults or the history of the proceedings do not go to that question. I do not accept that submission. The question of the bona fides of the applicant can be informed by, not only an assessment of the grounds of appeal, but also the conduct of any litigant and any other matter that may be relevant to the question.
I have no doubt that the wife bona fide wishes to have the final orders made on 18 January 2024 stayed pending the appeal because such a stay would result, at least in her mind, in her preserving her right to occupy the property at Suburb C and potentially prevent its sale. In my view that is not enough to establish bona fides in the circumstances of an application for a stay pending an appeal.
I repeat what I said in Morse & Duarte (No 6) at [23]:
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.
The force of that, in my view, remains undiminished for the purposes of this judgment. I adhere to the view that nothing that is put forward by the wife in her grounds of appeal or submissions suggest 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. Accordingly, the suggestion that her appeal would be rendered nugatory by a failure to grant a stay is only correct to the limited extent it might delay what will ultimately be an inevitable sale of the Suburb C property.
I am not persuaded, even taking account of the grounds set out in the Further Amended Notice of Appeal, that a stay should be granted and I refuse the wife’s application.
The husband makes an application for costs fixed in the sum of $1,500. I am satisfied that there are circumstances justifying an award of costs in this case, particularly the fact that the wife has been wholly unsuccessful and that there are outstanding unpaid costs orders already.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 18 April 2024. Associate:
Dated: 22 April 2024
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