NEST & NEST - [2014] FamCA 74

FAMILY COURT OF AUSTRALIA

NEST & NEST

[2014] FamCA 74

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – proceedings have lengthy history but not yet proceeded to trial - applicant husband sought stay of proceedings while his appeal was heard –prejudice to wife – balance of convenience – little merit in husband’s grounds of appeal - application for stay dismissed

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth)

Gallieni & Gallieni [2012] FamCA 54
Grace & Grace (No 3) [2012] NSWSC 1623
Tate & Tate (2000) FLC 93-047
Worth & Worth
R & Watson; Ex parte Armstrong (1976) 136 CLR 248

APPLICANT:

Mr Nest

RESPONDENT:

Ms Nest

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

1821

2008

DATE DELIVERED:

23 January 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Morosini

SOLICITOR FOR THE RESPONDENT:

Di Morosini & Co

Orders

The husband’s Application in a Case filed 24 December 2013 be dismissed.
The question of the wife’s costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1821 of 2008

Mr Nest

Applicant

And

Ms Nest

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The matter of Nest comes before me upon an application in a case filed in this court on 24 December 2013. In that application, the husband seeks the following orders:-
(1)That there be a stay of the orders of Berman J setting the matter of Nest ADC1821 of 2008 for trial on 28, 29, 30 and 31 January 2014.
(2)That the trial be vacated until the leave to and the appeal is heard and decided by the Full Family Court of Australia.
(3)That time be abridged (for serving and hearing of this application.).
The application is supported by affidavit material of the husband but in particular an affidavit filed on 24 December 2013 and a subsequent affidavit of 15 January 2014 and an affidavit of the husband filed 15 January 2014 together with a document headed Applicant’s Outline of Submission 17 January 2014. The matter was listed for hearing before me in respect of the said Application on 20 January 2014. On that occasion the husband appeared in person. The wife was present and represented by her solicitor, Ms Morosini. Ms Morosini made submissions to the effect that she had not been served with the notice of appeal and therefore had no knowledge of the grounds of appeal upon which the husband relies.
I pause to note that the application in a case seeking a stay order is against the background of a notice of appeal filed by the husband on 19 December 2013. That notice of appeal contains the grounds upon which the husband seeks leave to appeal and if successful, the grounds of appeal. Obviously, it was important that Ms Morosini and the wife have proper notice of the notice of appeal and the grounds, given that one of the matters that needs to be considered in any application for a stay is how my exercise of discretion is affected by the merit or otherwise of the said grounds.
In any event, there was some issue raised as to the extent of affidavit material filed by the husband and how it did or did not make its way to Ms Morosini’s office. The time of year was obviously problematic. Ms Morosini indicated that her office was closed until effectively Monday, 14 January. I accept that. Mr Nest, (“the husband”) brings to my attention that he attempted to file the application in a case seeking a stay at the earliest possible opportunity and that was only able to be achieved on 24 December 2013 which secured the hearing date before me on 20 January 2014. A further issue, however, was raised by the husband, properly so, in my opinion, namely that he considered it important that the court have the advantage of his outline of summary document which was filed in this court on 17 January 2014. I am uncertain when that document was served on Ms Morosini but to some extent it does not matter because the difficulty was that by the document being filed electronically, it did not reach the court file for the hearing or in time for the hearing on 20 January.
For various reasons, it was then considered appropriate that I adjourn the matter until today to give the wife’s solicitors an opportunity to receive all the documents that are relevant to the proceedings and for the husband’s outline of argument document to be provided to me and so that I could give it appropriate and proper consideration. The document is comprehensive and the husband seeks me to consider a number of authorities as to matters of the law relating to stay applications. It does not appear to me that there is frankly much dispute between the husband’s submissions and those of Ms Morosini in respect of the law. The issue is, of course, that each case is different, that the exercise of my discretion will be dependant upon the particular circumstances of each case and so Ms Morosini urges me to reject the stay application, whereas the husband seeks that I make orders that would see the stay application being successful with the clear effect on the trial, namely that it would need to be vacated.
It is obviously important that in a consideration of an application for stay, the court will need to consider the merits of the appeal and those are the matters also dealt with by the husband in his outline of argument. There is a significant history to this matter. It is not necessary that the entirety of the court history be repeated but it is relevant to point out proceedings were commenced by way of an application in a case filed by the wife seeking final orders on 14 September 2006. The husband filed a response on 29 November 2006. Whilst there have been amended documents filed since the initiating application was filed by the wife, what is common ground between the parties in terms of the documents on the court file is that each of them seek orders for settlement of property. The difficulty is that the matter has not been able to be listed, heard and determined to finality.
The matter has been the subject of court litigation for now more than seven years. There may have been various reasons as to why the matter has been not been able to be listed for trial before this date but to some extent, those matters and that history have been superseded by the current orders in place. The history of the matter is, however, important in order to establish that there is prejudice potentially caused to the wife in terms of her position of wanting the proceedings to be listed and finally determined. To some extent, whilst I only have the wife’s trial documents, nonetheless it is relevant to note the assertion of the wife that the total property is $1,378,500. Predominantly, the property of the parties is comprised into two properties situated at Suburb S valued at $700,000 and Suburb K valued at $600,000 according to the wife.
I raise those matters because on the information that the court has in terms of the wife’s trial affidavit noting that this is a document filed pursuant to an order of this court, the property pool is frankly without significant complexity in the sense that the bulk of the property is comprised in the two properties. Notwithstanding the long history, it is, at first instance, according to the wife’s affidavit material, a matter that is relatively straightforward. Of recent date, the matter has been the subject of attention by the Honourable Strickland J sitting as the Full Court of the Family Court of Australia in respect of a notice of appeal filed by the husband on 30 July 2013. That notice of appeal sought leave to appeal an order made by Cronin J on 4 July 2013 which order did little more than list the matter for a first day hearing in preparation for a further hearing in which a trial date would be set or considered and the appropriate trial directions could be made.
Ultimately, the husband was successful in respect of his appeal on the basis that orders were made by Cronin J in chambers and to the extent that they required the parties to do certain things, the husband objected on the basis that he was not able to be heard. I raise those matters because that has been the subject of submission made by the husband this morning as to the extent to which previous appeals in this court have met with success and the effect of those appeals, and underpinning that submission by the husband is a submission that on his version, because he has been hitherto successful in appeals, in some way that should impact upon how I consider the merit or otherwise of the current appeal.
I have indicated to the husband that I reject that proposition but to the extent that is necessary to do so, the remarks of Strickland J, notwithstanding that the appeal was successful, would suggest that the real issue was the listing of the matter for trial, but his Honour agreed with the husband, that the orders of Cronin J did not give him or the wife an opportunity to put their respective positions. The matter was able to be dealt with because the hearing before Cronin J did no more that simply set the matter up to be heard by another judicial officer, ultimately me, on 4 September 2013. His Honour said, “I stress that in agreeing to make the orders by consent, I am not to be seen to be accepting any of the other complaints or allegations that [the husband] makes in his documentation or in his oral submission to the court.”
The pathway therefore then led to the matter being listed before me on 4 September 2013. The husband appeared in person. Ms Morosini appeared for the wife and, as indicated, the matter had been referred to my docket consequent upon or flowing from the order of Strickland J. On 4 September 2013 I made orders that set the matter down for hearing for four days commencing 28 January 2014. There were a number of issues raised by the husband and by Ms Morosini in respect of matters relating to trial preparation but ultimately I determined that the matter should be listed, that 28 January 2014 provided adequate time and there was even further consideration given to matters that had been the subject of concern to the husband in previous proceeding before Burr J (as he then was), namely as to issues of valuation.
Indeed, in order to better prepare the husband’s case, he sought an order that there be separate adversarial evidence in relation to the valuation of two properties. I considered it appropriate to grant the order as sought by the husband and as part of the trial directions, each of the parties were entitled to seek their own separate evidence and to present same to the court as part of the final hearing. As I have indicated, I did not consider then that the proceedings where necessarily complex. The asset pool was relatively well-defined, as previously stated, and was comprised predominantly of two pieces of real estate.
The orders provided that the proceedings were to come before me at 9.15 am on 9 December 2013 by way of compliance. I accept that the husband’s position is that he resisted the matter being listed for trial and he put a number of matters that he considered were relevant to that consideration. The wife’s position was clear, namely, that she had had enough of the process. It had gone on for a number of years and she was keen that the matter be finally heard and determined and she could receive her entitlement to settlement of property, whatever that be, whether it be that which the husband considers she should have, namely, 10 per cent or that which she considers she should have, on her case being 65 per cent of the asset pool.
No further process was filed by either of the parties but in particular the husband until 8 December 2013 at 4.57 pm. At that time, the husband filed an application in a case together with affidavit material in support of orders seeking the adjournment of the trial and the vacation of the trial date. The husband also sought orders in terms of the issuing of an evidence certificate pursuant to section 128 of the Evidence Act 1995 (Cth) and a further matter was raised by the husband, in his affidavit material, namely that he considered that I was either biased or there was a reasonable apprehension of bias. Whilst he did not seek the specific order in relation to disqualification, I invited the husband to make an oral application to that effect on the basis that I said to him that I would accept that as an appropriate vehicle for that issue to be heard and determined.
That application in a case was given detailed consideration by me. Various hearings were set aside to hear and determine the entirety of the orders sought in that application, and in relation to the oral application of the husband that I disqualify myself, I gave ex tempore reasons on 11 December 2013. I dismissed the oral application of the husband. Other orders were made in respect of the application in a case. I do not propose to repeat the matters and the history as set out in the judgment delivered on 11 December 2013, but I repeat those issues in summary only to provide some context and background to the current application seeking the stay of my order.
On 19 December 2013, the husband filed a notice of appeal. The document sets out matters upon which the husband intends to rely both to seek leave to appeal and, if successful, then grounds of appeal. In summary, in respect of matters relating to leave to appeal, the husband’s position is that the orders made on 11 December 2013 were prejudicial and impractical. Secondly, that he seeks a higher court to use commonsense, reason, equity, empathy, compassion and justice on the basis that the orders made by me were and are oppressive. Thirdly, that a reasonable person, having correctly applied their mind to the facts of the case, could not have arrived at the same result. Fourthly, that the institutional integrity of the court would be distorted if the orders were to remain. Fifthly, that there must be the reality and the appearance of impartiality, the application of procedural fairness and the provision of proper reasons. There had been, in short, a mis-application of the Family Law Act, its rules and its principles.
The grounds of appeal are a little more difficult to understand, but essentially they allege that I subjected the appellant to discrimination, a denial of procedural fairness and natural justice and that I disregarded special or exceptional circumstances as they applied to him. The orders that I made represent a misuse of power. The husband also pleads that he was not given sufficient time to prepare his case and in some way the orders that I made were based upon questionable submissions of the respondent, biased evidence and circumstances involving fraud, collusion, conspiracy, malfeasance and/or a miscarriage of justice.
While I accept that the grounds of appeal as can best be gleaned from the notice of appeal seeks to challenge my order refusing the husband’s application for disqualification, I am not able to understand the application in respect of the balance of the grounds as they relate to what I consider to be routine and mundane orders in terms of the matter being listed for trial. Again, there was no formal or defined complaint or appeal by the husband in respect of the orders made on 4 September 2013 listing the matter for trial to commence on 28 January 2014 until he filed his application in a case on 8 December 2013.
The grounds of appeal do not appear to seek to appeal the orders of 4 September 2013. Rather, they seek to appeal the orders that I made more latterly on 11 December 2013 when on that occasion I extended time to the husband to file his documents. Order 1 is in respect of the dismissal of the husband’s oral application that I be disqualified. The next order was extending the time for the husband to comply and order 6 was an order that did no more than enable the husband to file and serve a document which set out affidavits from the court file on which he intended to rely. That last order was a matter of an accommodation to the husband with a view to attempting to assist him in preparing his case.
The effect of the orders sought by the husband in his application though would have seen the trial being removed from the trial list. Notwithstanding the extensive affidavit material filed by the husband, both in respect of this application in a case but as and from 8 December 2013, there has not been any suggestion by the husband as to when he would be able to prepare the matter to trial. That issue was canvassed again today with the husband because I put to the husband the position that he has chosen to participate in an appeal process rather than an application properly directed to trial preparation and the time that he requires or would reasonably require and the reasons for that time in order to have his case ready.
I think it is a relevant consideration to the exercise of my discretion that the wife complied fully with the orders made on 4 September 2013. At what I imagine to be some expense to her, an amended application was prepared, together with an update financial statement, and a detailed trial affidavit. Moreover, the wife has obtained valuation evidence in respect of the two mentioned properties, and it is demonstrable that there has been complete compliance with the orders of the Court.
I also note that the Court file reflects a case outline document has been prepared on behalf of the wife. Her case would appear to be ready to proceed, and there is nothing in any matter put to me by the husband which would suggest when the matter could or should be listed, and what efforts the husband has made to prepare the matter for trial and, if there are impediments to the proper preparation of his case, what indeed they are.
The husband appears in person, but that is a matter for him. There is significant property held by the parties, but under the control of the husband for the last seven years. Indeed, a significant issue in the case is apparently an argument by the wife that the husband has substantially diminished the property pool by his inaction and deliberate wasting of matrimonial assets.
I do not determine that issue, but the husband, in his submissions at the commencement of these proceedings, raised what he considered to be a strong issue – namely, that there was no affidavit material filed on behalf of the wife which in any way supported the contention that she suffers hardship, either now, or if the trial was put off. It may be that the husband has not read the wife’s trial affidavit, but it has been filed, and filed pursuant to an order of this Court, and I have given it some consideration. I am entirely satisfied that the wife puts forward a bona fide argument that there has been, on her case, long and significant delay; that she is keen for there to be a resolution of proceedings between she and the husband as to matters of property settlement; and that, in all the circumstances, there has been, as far as she is concerned, significant hardship. I do not know whether that is a finding that ultimately will be made on the wife’s case, nor indeed whether the allegations that she makes that assets have been wasted will be a matter of import, impact or determination in her favour, but she raises it in her affidavit material and I am entitled to consider that, as far as she is concerned, there is significant hardship by these proceedings not coming to an end.
The husband, on the last occasion, was given the Full Court decision of Tate & Tate (2000) FLC 93-047. That was done at an early stage in the proceedings. He complains of it in his affidavit material and he raises it specifically, which is the reason why I raise it. The case was given to the husband because there was, at that stage, an apprehension by the Court that the husband may not attend diligently to the preparation of his case.

Given that there was no formal objection by the husband from 4 September 2013 until he filed his application in a case on 8 December 2013, and whilst the Court was not obliged to make further accommodation to the husband in circumstances where the wife had fully complied with the orders of the Court, nonetheless, a further extension of time was given and in circumstances where the husband’s task could have been significantly reduced by an agreed position that he was entitled to rely upon specified and relevant affidavits that were already on the Court file.
The affidavit material filed by the husband is difficult to understand. The affidavit filed 24 December 2013 is the affidavit that was filed in support of the application in a case. It refers to the urgency of the matter being listed and refers to the fact that the husband considers that the time that was allowed, namely, on his calculation, 74 days, which is apparently taking into account a reduction for days where the temperature may have reached a particular level, was insufficient for him to prepare his trial. He did not, however, indicate what would be sufficient or what steps as undertaken or when those steps would be dealt with.
There is then, in the affidavit, significant reference to Registry staff and those matters are not matters about which I take or have any regard, and there follows a range of issues and complaints about various people in the Court system who the husband considers were complicit in the commission of some fraud. Again, I do not propose to go through those matters but, having given them careful and proper consideration, I do not consider that there were any matters in the affidavit, other than what might be described as the broad parameters of the husband’s submissions that would be of assistance.
The husband filed a second affidavit of 15 January 2014. This related to the provision of information in respect of the heatwave and the temperatures that soared around Australia. There are references made to the South Australian police operation, being Nomad patrols. The husband says that he has suffered heat stress during the writing of the document and that his blood sugar levels have been doubled. There is no medical evidence in respect of those matters and, in any event, to some extent, the connection between the husband’s medical issues or how he was feeling as a result of the heat appears to be confined to the preparation of this particular affidavit.
The husband raises matters about the attempt of the Court and others to rewrite history and to pervert the course of justice, and there are matters in the affidavit which talk of, again, the submissions. The best that I can glean from the affidavit of the husband is that he says staying the operation of my orders is arguable, that the balance of convenience and the prejudice of the parties favours a grant of the stay over the enforcement of the orders and that, in some way, the husband feels that he has not received a fair and unbiased hearing. In a general sense, at paragraph 14, he says this:
Allowing proceedings to continue on as they are amounts to a fundamental mistake and a miscarriage of justice.
The husband then goes into matters of how a Court should exercise its discretion and there is reference made to various appropriate authorities, being the decision of Worth & Worth and the observations of Dixon CJ in that case, and R & Watson, ex parte Armstrong, in terms of matters relating to a Court or a judge not being entitled to exercise contrary justice. The husband, in paragraphs 15 to 17 of that affidavit, raises the issue of the extent to which he says he has moved as quickly as possible in the bringing of the stay application. I raise it only because I have indicated to the husband that, as far as I am concerned, no issue rests upon the speed or otherwise with which he brought the proceedings following upon the hearing of the earlier application on 17 December 2013.
I raise it also, however, because the husband, in paragraph 16, asserts that an officer of this Court provided the husband with misleading information. I know nothing of those matters but I emphasise that, as far as I am concerned, the husband has brought this application as quickly as he was reasonably able to do so. The husband, in the affidavit, refers to previous fraud committed by officers, both judicial and otherwise, attached to the Family Court of Australia. They are under the heading of Registrar Forbes Affair, who I assume to be a reference to the Judicial Registrar as he then was, the Mr D Lawyers Affair, the Ms Nest Affair, the Mr E Affair, the F Affair.
Again, they are not matters about which I intend to place any weight. I do not consider that I need to hear further submissions from the husband about matters relating to fraud. I fail to see how they are germane and relevant to issues that I have to determine today, that is, whether or not the stay application – or the orders sought in the stay application – should be granted. Accordingly, I have formed the view that the grounds of appeal, other than as they relate to the refusal of the husband’s oral application that I disqualify myself, are of little substance and lack merit.
A consideration of my ex tempore judgment of 11 December 2013 reminds me that, when pressed, the husband was not able to give any indication or point to any area in which I displayed the bias or that anything I said or did could be considered as apprehended bias. The fact that I refused the application in a case of the husband, filed 8 December 2013, seeking that the trial be vacated, could not, in and of itself, be an indication of bias or apprehended bias. It was, however, an indication that I found little or no merit in the husband’s argument. That, of course, is qualitatively different to bias or apprehended bias.
The husband, however, has appealed from those orders that I have made and he seeks a stay. The circumstances that justify an order for a stay will vary from case to case. It is conceded that the strongest ground is the risk that to deny a stay will render a successful appeal nugatory or make it impractical to restore the situation that presently exists. As a consideration as to whether a stay should be granted, the hardship that would otherwise be suffered by the unsuccessful applicant must also be weighed against the hardship that would be suffered by the unsuccessful respondent.
Further considerations that I am able to take into account in deciding whether to grant a stay include the ground and the merits of the appeal, undue delay between the time of the original order and the filing of the stay which, in this case, I do not find to be a relevant consideration, and the length of time that it would take for the appeal to be heard. In that regard, I note that there is no information about that and the orders that the husband seeks is that the trial be vacated and not be relisted until the appeal is heard. Again, I find that aspect of the husband’s presentation to be curious.
The appeal does not finely conclude and determine anything, if it successful, other than procedural orders. It is open to the husband to bring an application seeking that the trial date be vacated and to provide affidavit material and a timetable when he says that his case can be prepared. He has chosen not to do so and there appears to be, therefore, a significant disconnect between the trial date and the hearing of the appeal. If the stay is granted, the trial would be vacated. It seems to me that the proper course thereafter would be, irrespective of any other proceedings in this court, would be to put forward a trial regime. That does not appear to be the position that the husband wishes to adopt.
I am obliged to consider where the balance of convenience lies. As I have indicated a stay is not granted as a matter of course and that appropriate circumstances must be shown. A stay obviously has the potential to deprive a successful litigant of the fruits of litigation.
To the extent that it would seem somewhat inappropriate to consider that an appeal is the only appropriate remedy to what is effectively a procedural order, namely the listing of a matter for trial and in circumstances where the original trial order is not the subject of appeal, would seem obvious.
Whilst it is not possible to divine the future, as I have indicated, the husband has had a number of options available to him. I consider it is a relevant consideration in the exercise of my discretion, as to whether the manner in which the husband chooses to conduct himself leads to an issue that represents a valid and proper appeal that needs to be heard and determined or, whether, indeed, it could be said that the husband might be disingenuous in terms of any desire or preparedness to have the proceedings brought to an end.
Obviously, that is a matter that will be considered on another day but I note matters raised in the wife’s trial affidavit, in terms of the hardship that a further delay to the proceedings may well cause to her.
In the circumstances of this case, and taking into account the long history of the matter, there is the real risk that the husband is seeking to avoid the matter being listed. Again, these proceedings do not just involve the husband but they involve the wife and it must be emphasised that the wife has complied entirely and completely with every order of this court and has presented her case in a manner which is, in all the circumstances, ready to proceed.
I have had regard to the authorities referred to by the husband but also two further authorities, being Gallieni& Gallieni [2012] FamCA 54 and Grace & Grace (No 3) [2012] NSWSC 1623.
The issue, of course, in those decisions, as in the majority of the other decisions where stay application has been considered is that the stay is directed towards an order arising out of a final hearing of the matter and a determination of it. That is, of course, not the case here. This matter has not even yet reached a trial. There are no final orders and so the appeal is directed towards matters that are procedural only.
For those reasons I do not propose to make orders in terms of the husband’s application in a case filed 24 December 2013 and I dismiss the application.

I make a further order that the question of the wife’s costs be reserved.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 January 2014.

Associate:

Date: 24 January 2014