NORTON & LOCKE
[2013] FCCA 1259
•3 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NORTON & LOCKE | [2013] FCCA 1259 |
| Catchwords: FAMILY LAW – Stay – application for Stay pending Appeal – whether de facto financial cause – jurisdiction of the Court to make interlocutory orders where de facto relationship in issue – principles relating to stay considered. |
| Legislation: Family Law Act 1975 (Cth), s.4 Family Law Rules 2004, r.22.11 |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Jackson & Balen [2009] FamCAFC 131 Locke & Norton [2013] FCCA 1154 State Central Authority & Ustinov (No.2) [2008] FamCA 368 Stone & Stone [2013] FamCA 479 |
| Applicant: | MR NORTON |
| Respondent: | MS LOCKE |
| File Number: | SYC 2828 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 23 August 2013 |
| Date of Last Submission: | 23 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Bridger |
| Solicitors for the Applicant: | Barraket Stanton Lawyers |
| Counsel for the Respondent: | Mr White SC |
| Solicitors for the Respondent: | Michael Conley Lawyers |
ORDERS
The Application for a stay of Orders (1) to (5) inclusive made on 6 August 2013 is dismissed.
The Respondent’s costs are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Norton & Locke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2828 of 2013
| MR NORTON |
Applicant
And
| MS LOCKE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Respondent to the primary Application for a stay of the Orders made by this Court on 6 August 2013 (Locke & Norton[1]). Those Orders provided that, until further order:
[1] [2013] FCCA 1154
(1)The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from interfering with the Applicant’s continued exclusive occupancy of the property situated at [Property D] in the State of New South Wales being the land in folio identifier [omitted] (the property).
(2)The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from doing any act or thing or causing any act or thing to be done which has the purpose or effect of transferring, assigning, mortgaging, encumbering, charging or otherwise dealing with his interest in the property including whether at law or in equity.
(3)The Respondent pending final determination of these proceedings or further Order is to pay the following outgoings in relation to the property as and when they fall due:
3.1 mortgage payments;
3.2 council rates;
3.3 insurances;
3.4 body corporate levies;
3.5 water rates; and
3.6 electricity and gas charges.
(4)The Respondent must file and serve a Financial Statement as required by Rule 24.02 within fourteen (14) days of the date of these Orders.
(5)The Respondent must provide to the Applicant’s solicitors a copy of all documents referred to in Rule 24.04 within fourteen (14) days of the date of these Orders.
(6)In accordance with Rule 8.02 and section 39 of the Federal Circuit Court of Australia Act 1999 these proceedings are transferred to the Family Court of Australia at Sydney.
(7)Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within fourteen (14) days of the date of these Orders and written submissions in opposition to any such application and any affidavit in support are to be filed and served within a further period of fourteen (14) days.
The Respondent to the substantive Application filed a Notice of Appeal against that decision on 16th August 2013. On 19th August he filed an Application in a Case seeking the following order:
That pending the determination of the Appeal, the order made by the Court on 6 August 2013 be stayed.
The Application in a Case was supported by an affidavit of the primary Respondent (the Applicant in this matter) sworn that same day, annexing copies of the Orders and a Notice of Appeal, stating that he sought leave to appeal against all of the Orders. He maintained in his affidavit that he had ever lived in a de facto relationship with the Respondent.
Submissions
Counsel for the Applicant told the Court that, despite what was said in the Notice of Appeal, her client was only seeking leave to appeal against Orders (1) to (5). She submitted that the making of an order for a stay is wholly discretionary and depends on the circumstances of each case. The principles are well settled (see Aldridge & Keaton (Stay Appeal)[2]).
[2] [2009] FamCAFC 106
It is submitted that the Applicant has an arguable case and there are serious issues raised in the appeal which are not doomed to fail at the outset. As the Applicant contends that there is no de facto relationship, there is a serious issue about the Court’s jurisdiction to make orders of an interlocutory nature affecting a person’s rights in relation to property where the nature of the relationship itself is in issue.
Further, the Applicant contends that it is beyond the power of the Court to compel him to provide details of his financial circumstances by providing to the other party a financial statement and discovery of documents in circumstances where there is no de facto financial cause as defined by s.4 of the Family Law Act 1975 (Cth).
The Applicant contends that there can be no prejudice to the Respondent should the Court stay the operation of the Orders. If a finding is made that the parties lived in a de facto relationship the Applicant will be required to make full disclosure of his financial position and provide discovery in a timely fashion.
It is submitted that if the stay were not granted:
a)The appeal would be rendered nugatory in that the Applicant would be compelled to carry out an onerous and compromising task of having to give discovery and disclose his financial position; and
b)If there is ultimately a finding that the Court lacked power to make the orders in relation to the Respondent’s occupancy of the apartment and the payment of various expenses by the Applicant he will have lost the benefit of the Appeal.
In summary, it is submitted that the factors and balance of convenience are in favour of the ordering of a stay.
Senior Counsel for the Respondent, Mr White, submitted that:
a)It is not clear how the Court can grant the stay of an interlocutory injunction (Orders (1) and (2));
b)Orders (1) to (3) were made until further order and, as those orders are not final, it remains open to the Applicant to persuade the Court based on further evidence that the interlocutory injunctions should be discharged; and
c)The Applicant has made no application to discharge the injunctions despite the passage of nearly three weeks;
d)The appeal is either not arguable or has slim prospects of success;
e)The denial of a stay would not render the appeal nugatory;
f)Whilst Order (3) made on 6 August requires the Applicant to pay the outgoings on the property most of those outgoings are required to be paid in any event as he is the owner of the property, which he has been paying for a number of years and there is no evidence that he will not be able to continue to do so; and
g)The Applicant has not provided evidence of any difficulty or burden in preparing a financial statement or disclosing the documents required by Rule 24.04.
The Relevant Law
The principles relating to the granting of a stay pending the hearing and determination of an appeal are, as both parties have submitted.
The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision (Family Law Rules 2004, r.22.11).
The grant of a stay is discretionary and the onus is on the applicant for the stay.
The principles governing the grant of a stay pending an appeal are set out in various authorities, including Stone & Stone[3]at [64]; Aldridge & Keaton (Stay Appeal[4]) at [18] and Jackson & Balen[5]at [28]).
[3] [2013] FamCA 479
[4] [2009] FamCAFC 106
[5] 2009] FamCAFC 131
Aldridge & Keaton is a decision of the Full Court of the Family Court on an appeal from the decision of the Chief Federal Magistrate[6] and is therefore binding on this Court. The principles are set out in paragraph [18] of the decision, where their Honours (Bryant CJ, Boland and Crisford JJ) point out that the authorities “stress the discretionary of the application which should be determined on its merits.”[7] The principles enunciated in the decision are (relevantly):
[6] As his Honour then was
[7] [2009] FamCAFC 106 at [18]
·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 or the proposed appeal – whether the appellant has an arguable case;
·(not applicable)
·The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
·(not applicable).[8]
[8] [2009] FamCAFC 106 at [18]
Conclusions
Counsel for the Applicant has also submitted that a further factor may be “whether the appeal raises serious issues and that the grounds appear to be substantiated rather than a mere delaying tactic”[9]. I am certainly convinced that the appeal raises the serious issue of the jurisdiction of the Court to make interlocutory orders in circumstances where the very basis of the claim, whether the parties were in a de facto relationship or not, is in issue.
[9] State Central Authority & Ustinov (No 2) [2008] FamCA 368 at [10]
The Applicant seeks a stay of the Orders made on 6th August because he is seeking leave to appeal against those Orders. There are no special or exceptional circumstances, nor do there need to be.
The Respondent to the Application has obtained an interlocutory injunction to preserve her occupation of the home unit in which she is residing until her claim can be determined. The Court has also ordered that the Applicant comply with Rules 24.02 and 24.04. She is entitled to assume that the decision is correct.
The Applicant claims that his appeal will be rendered nugatory if the stay is not granted but I am not persuaded that this is the case. Refusal of the stay will mean that the Respondent continues to live in the home unit where she is currently living until the appeal is decided. The Applicant has not provided any evidence that would show that this will cause him any irrevocable loss, such as the loss of a sale of the property. He will continue to pay the outgoings, such as rates, mortgage payments, body corporate payments and insurance on the property, but he will have to do that anyway, whether the Respondent is there or not. The payments for water, electricity and gas may be somewhat higher than if no one was actually living in the unity, but cost would be relatively small.
The Applicant is opposed to the Orders requiring him to file a financial statement and to provide copies of the documents required by Rule 24.04 but gives no convincing reason why that would involve any particular hardship. In my view, Rule 24.02 requires a Respondent to file and serve a Financial Statement at the same time as the Response and supporting affidavit are filed.
The Applicant has, in my view, an arguable case on appeal. That is not to say that he has a case that is certain to be successful, far from it, but it is not a case that would appear to have no merit whatsoever. It is always a difficult for a judge at first instance to assess the strength of an appeal against that decision; judges do not make decisions that they believe to be wrong. As I have said previously, it is neither necessary nor appropriate for a judge at first instance to seek to defend the decision under appeal.
The Court should give consideration to the grounds of appeal. The first ground complains that the judge failed to provide reasons for judgment, but the reasons have indeed been provided (Locke & Norton[10]). Counsel for the Applicant told the Court that an Amended Notice of Appeal may be filed.
[10] [2013] FCCA 1154
The second ground of appeal complains of a denial of procedural fairness involving allowing the Respondent to read and rely on evidence served contrary to Rule 6:19 and refusing to grant an adjournment. The fact is that the Respondent, as primary Applicant, had pressed for her interim Application to be dealt with on its first return date, 15th July 2013, and this was not acceded to. The matter had already been adjourned.
True it is that the Respondent had filed an affidavit on 1st August which was served the Friday prior to the hearing, but the Applicant was granted was granted time to read the document and give instructions on the day. The matter was stood down in the list until 2:15pm to allow him time. No affidavit has been filed showing what evidence could have been produced if the matter had been further adjourned. In any event, the later affidavit did little more than expand on the contents of the previous affidavit, of which the Applicant had plenty of notice.
The Applicant claims that Orders (1), (2) and (3) are beyond the jurisdiction of the Court. Whilst I am not of that view, I consider that this is an issue that is arguable and, indeed, it is one of the reasons why I decided that this matter should more appropriately be heard in the Family Court.
I am not of the view that Order 3.6 is a maintenance order. It was conceded at the hearing on 5th August that the Court should not make an order for spousal maintenance in the circumstances and Order 3.6 is, as Senior Counsel for the Respondent submits, purely an order intended to protect the Respondent’s ability to continue to live in the premises. If the electricity and gas were to cut off the premises would not be inhabitable for any period of time.
Whilst it does not appear that the case on appeal is a strong one, I am of the view that it is an arguable case.
In my view, the balance of convenience favours the Respondent. If the Orders are stayed, or the injunctive orders are discharged, she will suffer the hardship of being unable to live in the premises in which she is residing. To my mind, this is a critical factor, and is of such importance that the stay should not be granted.
The proceedings have been transferred to the Family Court. In my view, the question of costs of this Application should be reserved until after the Appeal has been decided.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 2 September 2013
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