Parker & Leclair (No 2)
[2024] FedCFamC2F 1572
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Parker & Leclair (No 2) [2024] FedCFamC2F 1572
File number(s): MLC 14258 of 2021 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – ex tempore reasons – wife’s application for stay of final property orders – property orders made by consent at the conclusion of a final hearing of seven days – application to appeal out of time – property orders part executed in favour of wife – wife seeks stay only of orders conferring benefit on husband – court not satisfied of bona fides of application or that appeal would be rendered nugatory if stay refused – preliminary assessment of merits of appeal – application for stay dismissed – costs reserved Legislation: Family Law Act 1975 (Cth) ss 79A, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106.
Allan v Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162
Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Federal Commissioner of Taxation v Myer Emporium (No 1) (1986) 160 CLR 220; [1986] HCA 13
Gilbert v Estate of Gilbert (1990) FLC 92-125; [1989] FamCA 95:
Guo & Zoric [2023] FedCFamC1F 628
Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681
Philkin & Philkin (No 3) [2021] FedCFamC1F 224
Zhai & Niu [2015] FamCA 639
Division: Division 2 Family Law Number of paragraphs: 60 Date of last submission/s: 25 October 2024 Date of hearing: 25 October 2024 Place: Melbourne Representative for the applicant: Self-represented Representative for the respondent: Mr Harper Solicitor for the respondent: MMH Lawyers ORDERS
MLC 14258 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PARKER
Applicant
AND: MS LECLAIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the respondent (“wife”) on 16 October 2024 (sealed on 17 October 2024) be dismissed.
2.The costs of the applicant husband of and incidental to today’s hearing be reserved.
3.The husband have liberty to contact the chambers of Judge A. Humphreys by email (copied to the wife or her lawyer if she then has one) to seek the re-listing of the application for costs made by way of his Response to Application in a Proceeding filed on 23 October 2024, upon:
(a)determination of the wife’s appeal of the final property orders made on 31 May 2024; or
(b)dismissal of her Application in an Appeal filed on 15 October 2024.
AND THE COURT NOTES THAT:
A.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS
This hearing relates to an application for a stay of final property orders pending appeal.
These are my reasons for judgment which were delivered orally at the conclusion of the hearing. They have been settled from the transcript for grammatical clarity and ease of reading and to reference statutory provisions and legal authorities.
Ms Leclair seeks the stay. She was the respondent in substantive parenting and property proceedings between her and her former husband, Mr Parker. I will refer to the parties as the wife and the husband, notwithstanding they are now divorced. I do that for ease of reference and without intending any disrespect to either of them.
The final hearing of the substantive proceedings between the husband and wife was conducted before me over seven days, from 5 to 9 February and from 30 to 31 May 2024. The proceedings were finalised as follows:
(a)Property matters, by consent after the wife’s closing submissions on 31 May 2024 (“final property orders”); and
(b)Parenting matters, by determination of the court, with judgment delivered on 23 October 2024 (“final parenting orders”).
On 15 October 2024, the wife filed an Application in an Appeal seeking the court’s leave to file a notice of appeal out of time in respect of the final property orders.
The accompanying notice of appeal lists numerous complaints made by the wife about the conduct and fairness of the final hearing. In summary, she contends her consent was not freely given to the proposed final property orders, submits the final property orders are not just and equitable and seeks the final property orders be reconsidered as follows [emphasis per original]:
23. Request for Reconsideration of Consent Orders
If this matter had been properly addressed, only the house and superannuation would have been included in the property pool, [monies] fully returned to the wife in [Country B], with appropriate adjustments made to account for the impact of domestic violence and the best interests of the child. Additionally, the parenting orders should have been issued without undue delay.
24. I respectfully request the court to set aside or vary the consent orders due to the procedural errors, judicial bias, and coercion I faced during the proceedings. The judge's failure to ensure the fairness of the orders breached the court’s duty of care. These consent orders were not made with free and informed consent, nor were they just and equitable. The misapplication of legal principles and the failure to ensure a fair process resulted in orders that were imposed under duress. I ask the court to reconsider these orders to rectify the injustice caused by these coercive circumstances and the court’s failure to apply the law correctly.
The wife’s application for a stay was made by way of an Application in a Proceeding filed on 16 October 2024.[1] She seeks a stay in executing some but not all of the final property orders.
[1] The date of filing typed on the Application in a Proceeding and supporting affidavit is 21 December 2021. The wife confirmed that was an error, being the date on which the proceedings commenced. Those documents were sealed on 17 October 2024, after orders were made in chambers (on 17 October 2024) listing the application for hearing and providing for the filing of further documents ahead of the hearing.
By way of Response to Application in a Proceeding filed on 23 October 2024, the husband seeks the wife’s application be dismissed and that she pay his costs of and incidental to the application.
In her case outline, the wife purported to seek other orders including a stay of the final parenting orders, a stay of her child support obligations and further parenting orders. Those matters are not the subject of an application before the court. The final parenting orders are not yet the subject of an appeal although the wife foreshadows her intention to file a notice of appeal in respect of those orders. I referred the wife to rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and she agreed it was premature to make an application for a stay of the final parenting orders.
ISSUES REQUIRING DETERMINATION
Accordingly, the issues requiring determination are:
(a)Whether the operation of the final property orders should be stayed in part as sought by the wife pending determination of her intended appeal (by either leave being refused for her to file a notice of appeal out of time or, if leave is granted, pending determination of the appeal); and
(b)The husband’s application for costs.
HEARING
Upon my chambers being notified of the wife’s application for a stay, I made orders in chambers on 17 October 2024, listing the application for hearing on 25 October 2024 and providing for the filing of further material, including written submissions to be filed by 12 noon on 24 October 2024 of not more than three pages. The wife filed a lengthy case outline on the court portal at approximately 7:16 am on the morning of the hearing. I granted the wife leave to rely on items 1, 2 and 3 of that document, at Part D under the heading “Outline of contentions”, being those paragraphs of her case outline that she outlined as being relevant to her application for a stay of final property orders and the husband’s application for costs. That was not opposed by the husband.
The wife attended the hearing today on a self-represented basis. The husband was also in attendance and represented by his solicitor.
I asked the wife at the outset of the hearing if she had the opportunity to take legal advice and she said she had. I asked if she wanted the opportunity to consult with a duty lawyer and she said she did not.
The orders made on 17 October required the parties to notify my chambers on 21 October 2024 if they opposed the independent children’s lawyer being excused from attending the hearing. Neither party provided such notification. Accordingly, the attendance of the independent children’s lawyer was excused.
Both parties made oral submissions. The wife made oral submissions in support of her application for a stay and against the making of an order for costs. The solicitor for the husband made submissions opposing the granting of a stay. After informing the parties of my decision in relation to the wife’s application for a stay and delivering my oral reasons for that decision, I heard submissions in relation to the husband’s application for costs.
DOCUMENTS RELIED UPON
The wife relies on:
(a)Application in a Proceeding, filed on 16 October 2014 (sealed on 17 October 2024);
(b)Her affidavit made in support of her Application in a Proceeding, filed on 16 October 2024 (sealed on 17 October 2024);[2]
(c)Application in an Appeal, filed on 15 October 2024, with attached proposed Notice of Appeal, dated 9 October 2024;
(d)Her affidavit in support of her Application in an Appeal, filed on 15 October 2024; and
(e)Her case outline filed on 25 October 2024, limited to the following: Items 1, 2 and 3 in Part D – “Outline of contentions”.
[2] Noting the date of filing recorded on the affidavit is 21 December 2021 in error.
The husband relies on:
(a)Response to Application in a Proceeding, filed on 23 October 2024;
(b)His affidavit, filed on 23 October 2024; and
(c)Written submissions, filed on 24 October 2024.
STAY APPLICATION
Final property orders
On 31 May 2024, after seven days of hearing and after the wife’s closing submissions but before the husband’s closing submissions, I was informed the parties had reached an agreement to finalise property matters. A minute of proposed final property orders was tendered, signed by each of the parties and dated 31 May 2024.
Counsel for the husband made submissions in respect of the proposed final property orders. I discussed with the parties my assessment of the proposed orders, loosely in percentage terms, acknowledging there was some disagreement about values of some of the assets the subject of the orders and then invited any further submissions from the wife. In her submissions, the wife raised only the matter of costs owing to her former lawyers. Accommodating the payment of previous costs orders made against the wife was also discussed.
I informed the parties that having read the proposed orders and their court documents and having heard the matter for seven days and their submissions, I was satisfied the proposed orders were just and equitable. Being satisfied the trustee of the husband’s superannuation fund had been afforded procedural fairness in respect of the agreed superannuation splitting order, I made final orders in the terms proposed by the parties, by consent. I informed the parties the orders would be effective that day.
In summary, the final property orders made by consent provide as follows:
·Order 1: for the husband to make a payment to the wife of $84,000 within 90 days of the date of the orders (so, by 29 August 2024);
·Order 2: for the contemporaneous transfer to the husband of the former family home at C Street, Suburb D (“Suburb D”) and refinance of the mortgage secured over Suburb D;I
·Order 3: for the husband to have sole use and occupation of Suburb D and for other obligations and restraints pending the payment and transfer;
·Order 4: for the sale of Suburb D in default of payment by the required date;
·Order 5: for the transfer of a real property in Country B to the wife;
·Order 6: an order pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”);
·Order 7(a): for the husband to retain Suburb D;
·The balance of order 7: for the husband to retain other identified assets, including (amongst other items) a car, bank accounts and responsibility for liabilities in his name;
·Order 8: for the wife to retain identified assets, including (amongst other items) the payment from the husband provided in order 1, the property in Country B, the valuable resource, a car, bank accounts, and responsibility for liabilities in her name;
·Order 9: for the financial resource identified in order 8, held in a bank locker in Country B, to be provided to the wife, via agents nominated by the parties;
·Orders 10 to 16: for a split of the husband’s superannuation interest in favour of the wife, allocating a base amount of $48,567;
·Order 17: an order which I will describe as a “catch all” provision, providing for the retention of other assets and liabilities of the parties;
·Order 18: discharging a previous order requiring the wife to pay one half of Ms E’s fee for a family report prepared during the course of the proceeding; and
·Order 19: dismissing all extant property applications.
Orders 20 and 21 were orders made by the court providing, in summary:
·For the payment of costs by the wife pursuant to costs orders made on 24 April 2024.
The orders identified in italics are the orders the wife seeks be stayed in operation, in the following terms:
Stay in executing orders: 2, 3, 4, 5, 6, 7a, 20, 21
Wife’s position and her evidence
The wife’s affidavit consists mainly of submissions.
By way of her affidavit, the wife submits the outcome of her appeal “may significantly affect the current financial orders” and therefore requests that no enforcement action be taken until the appeal is heard and determined.[3]
[3] At [3].
She deposes that “due to financial difficulties” she has accrued arrears in child support payments[4] and that “enforcing the current financial orders while the appeal is pending would impose further financial strain, which may become unnecessary or reduced should the appeal be successful.” However, the wife does not give evidence or make submissions addressing how implementation of the final property orders will impact her financial position, in circumstances where the final property orders provide for the alteration of property interests between the parties by way of a payment and the transfer of property to her and only her interest in the former family home at Suburb D is to be transferred to the husband. Her immediate financial position will be enhanced by the final orders in that she will receive a payment from the husband and will be relieved from her obligations under the joint loan secured by mortgage against Suburb D upon refinance of the loan into the husband’s sole name.
[4] At [4].
Husband’s position and his evidence
The husband deposes he has already complied with orders 5 and 9 of the final property orders which provide for the transfer of the real property in Country B to the wife and for the financial resource identified in order 8 to be provided to the wife via each party’s nominated agent. He deposes he was in a position to implement orders 1 and 2 of the final property orders ahead of a settlement date set for 29 August 2024 but that the settlement did not proceed because the wife did not provide the required verification of identity for the electronic conveyance of the settlement. He deposes his solicitor has subsequently corresponded with the wife seeking that she comply with the final property orders. This evidence was not disputed by the wife and she confirmed this accurately reflects the current status of the implementation of the final property orders. It is, in my view, notable she was silent about this in her affidavit. The husband deposes he continues to reside in the home at Suburb D with the parties’ 11 year old son, X, which is also not in dispute.
The husband opposes the wife’s application for a stay of the final property orders. In summary, he questions the wife’s bona fides in seeking a stay of the operation of the final property orders, particularly given she seeks to benefit from those orders made in her favour while denying him the benefit of ownership of Suburb D. He submits there is no detriment to the wife in execution of the final property orders as even if she is granted leave to appeal the property orders out of time and her appeal succeeds, she will have the benefit of the payment required by order 1 and there is no risk of the appeal being rendered nugatory as he will continue to retain Suburb D from which any further settlement can be satisfied.
Law to be applied
Rule 13.12 of the Rules provides for the stay of operation or enforcement of orders pending appeal as follows:
13.12 Stay
(1) 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.
(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application related.
(3)An application for a stay must:
(a) be filed in the registry in which the order under appeal was made; and
(b)be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable.
The legal principles to be applied when considering an application for a stay of final orders pending appeal are well-settled. They were discussed during the course of the hearing and the subject of submissions.
Those principles were described by Austin J in n Zhai & Niu as follows:[5]
The discretion to stay the operation of orders should only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation pending the determination of any appeal. Such special circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (see Federal Commissioner of Taxation v Myer Emporium (No 1) (1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681 at 685). Those common law principles apply equally to judgments delivered in this jurisdiction.
The Court is entitled to assume that the decision which is the subject of the appeal is correct. Indeed, the Full Court must subsequently approach the appeal on the basis of a strong presumption that the decision at first instance is correct (see Australian Coal & Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 at 627).
[5] [2015] FamCA 639 at [6]-[7] and subsequently adopted by other judges of the Federal Circuit and Family Court of Australia (Division 1), including Harnett J in Philkin & Philkin (No 3) [2021] FedCFamC1F 224 and Brash J in Guo & Zoric [2023] FedCFamC1F 628.
By reference to prior authorities, the Full Court in Aldridge v Keaton (Stay Appeal)[6] confirmed the discretionary nature of the determination of an application for a stay pending appeal and set out the principles to be taken into account when determining such an application as follows:[7]
[6] [2009] FamCAFC 106.
[7] at [18] and omitting those considerations which relate to parenting proceeding and are not relevant to my determination.
[…] The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•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
[…]
Consideration
Some of the considerations in Aldridge v Keaton speak for themselves and are not controversial.
Bona fides of the wife
The husband contends the application for a stay has not been made on a bona fides basis in circumstances where the wife has first obtained the benefit of the final property orders before filing her application, including the transfer of the Country B real property and delivery of the financial resource, while delaying the transfer of the title of Suburb D to him.
The wife now seeks the husband make the payment required to her pursuant to order 1 but that she not be required to transfer her interest in Suburb D to him in accordance with order 2. That the wife seeks an order staying operation of order 3 providing for the husband to have sole use and occupation of Suburb D particularly causes me to be concerned as to her bona fides in making this application. Suburb D is the former family home which since mid-2022 has been the home in which X lives with the husband.
I also take into account the wife’s approach to the litigation, including that she foreshadowed[8] challenging my decision in relation to the parenting matters before I had even set a date for delivery of that judgment.
[8] In her documents filed in relation to the property appeal.
These are all matters that cause me to doubt the wife’s bona fides in seeking a stay in the operation of part of the final property orders
Stay on terms that are fair
As is apparent from my review of the other considerations, I find the terms of the proposed stay are not fair to both parties, in that they would allow the wife to benefit from those final property orders which have already been implemented and those orders conferring a benefit on her which are not the subject of the stay application, but would deny the husband the benefit of those orders of benefit to him.
Appeal rendered nugatory
The wife does not articulate in her notice of appeal or otherwise the orders she seeks in lieu of the final property orders.
Even if, hypothetically speaking, a stay was not granted and the wife was to succeed with her appeal and achieve orders requiring a greater payment to her, such an order could be satisfied by the sale of Suburb D if necessary, being the most valuable of the parties’ non-superannuation assets (with agreed equity of approximately $400,000 in round terms at the time of the final hearing). That is so even allowing for the husband to borrow funds to make the payment required by order 1 of the final orders.
I raised this with the wife during her submissions and she submits that she simply does not know what the husband is going to do with Suburb D in the future, given the financial abuse he has perpetrated in the past. This was expressed as a belief, rather than a concern supported by evidence of any intention on the part of the husband to dispose of Suburb D or dissipate the equity in Suburb D. I am not persuaded of the risk he will do so in circumstances where his application was to retain Suburb D (being his home with X) and where he has given evidence that he has made all arrangements required to effect settlement pursuant to orders 1 and 2 of the final property orders.
Accordingly, I am not persuaded the appeal will be rendered nugatory if a stay is not granted and the remaining outstanding final property orders are implemented.
Preliminary assessment of the strength of the proposed appeal
A notice of appeal is required to be filed no later than 28 days after the day on which orders are made.[9] Accordingly, the wife’s notice of appeal was to be filed by no later than 28 June 2024. Her application for an extension of time to file her notice of appeal was not filed until 15 October 2024, some 3.5 months late. The delay is significant, and the wife will need to overcome that difficulty to persuade the court to grant her leave to file her notice of appeal out of time.
[9] Rule 13.03(1) of the Rules.
To the extent the wife submits her neurodiversity impeded her ability to file a notice of appeal within the required time frame, I note the assessments that were before the court at the final hearing. In particular, the reports of Ms F assessing the wife with “mild” ADHD, and Ms G assessing the wife with high cognitive ability. I accept the submission of the solicitor for the husband that the wife has not adduced evidence to draw a connection between those assessments and her inability to file a notice of appeal within the required timeframe. Whilst the wife said the cost of transcript was prohibitive and it impacted her ability to file her notice of appeal on time, she did not adduce evidence of the cost of the transcript or of her current financial circumstances.
Subject to the wife being granted leave to file her notice of appeal out of time, the final property orders may be appealed notwithstanding they were made by consent. However, the right of appeal of orders made by consent is limited as explained by the Full Court in Allan v Allan & Ors[10] with reference to Gilbert v Estate of Gilbert[11]:
The fact that an order is made by consent does not, of course, make the order of any different nature from an order made otherwise. The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties. Therefore, save for an important qualification, an order made by consent may be the subject of an appeal in the same way as any other order (see Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77-839).
However, the “important qualification” referred to in Gilbert is of present significance: the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence, or the absence of jurisdiction. […]
[10] [2014] FamCAFC 162 at [63] to [65].
[11] (1990) FLC 92-125.
The wife’s proposed notice of appeal is lengthy, largely provided in the form of submissions and does not clearly articulate her grounds of appeal.
In relation to the wife’s assertion she was denied procedural fairness by her lack of legal representation and inability to cross-examine the husband at the final hearing, I refer to paragraph 14 of my reasons for judgment delivered on 23 October 2024 in relation to the final parenting orders made on that day (“parenting judgment”) and confirm:
The [husband] and independent children’s lawyer were represented at the final hearing by counsel. The [wife] was self-represented. She had previously been represented by a lawyer appointed under the Commonwealth Family Violence and Cross-examination of Parties Scheme, given there was a final intervention order in place as between the parties and section 102NA of the Family Law Act 1975 (Cth) (“the Act”) prohibited the parties from cross-examining one another personally. The [wife’s] lawyers were granted leave to withdraw at a mention on 1 February 2024, having identified a conflict with their duty to the court. The [wife] sought to proceed on a self-represented basis, without being permitted to cross-examine the [husband], rather than have the final hearing adjourned to engage another lawyer. The [wife] was granted an extension of time to file her trial documents, and the matter proceeded on 5 February 2024.
To the extent the wife asserts the final hearing was not conducted fairly, I note many of the matters she now raises in her notice of appeal were not raised during the final hearing. For example, she did not seek at trial any measures to accommodate her neurodiversity during the final hearing. The reports she relied upon to evidence her neurodiversity[12] were only provided partway through the final hearing, pursuant to the orders made on 24 April 2024 granting her leave to adduce that further evidence. I accept the submission of the solicitor for the husband that the wife has not adduced evidence of the connection between those assessments and her assertion that her neurodiversity impeded her conduct of the final hearing in the manner now asserted by her. I am not satisfied her neurodiversity impacted her ability to file a notice of appeal within the required time frame.
[12] Being the reports referred to in paragraph 43 of these reasons.
The wife makes various complaints in relation to the justice and equity of the final property orders made by consent, which were not the subject of evidence or submissions at the final hearing. For example, she did not adduce evidence in relation to the law in Country B applying to monies and seek that be taken into account. Expert evidence was not adduced in relation to the value of the real property and valuable resources in Country B. I made it clear to the parties when considering the justice and equity of the proposed final orders that I did so acknowledging the value of some assets remained in dispute.
The wife’s allegations in relation to family violence and coercive control, which she says impacted her ability to freely consent to the final property orders and were relevant to the alteration of property interests between the parties, were the subject of evidence and submissions during the final parenting hearing before me and are considered in the parenting judgment. I was not persuaded of numerous of the allegations made by the wife in relation to family violence and coercive control including in respect of financial control.
In relation to the wife’s assertion of judicial bias, she did not make such a complaint at trial.
The ultimate relief sought by the wife in paragraph 24 of her proposed notice of appeal[13] is to set aside or vary the final orders made by consent. If that is the case, her application is misconceived, as it is section 79A of the Act that provides for the variation or setting aside of orders altering property interests.
[13] At Part C.
Whilst I do not purport to make a formal assessment of the merits of the appeal and acknowledge it would be difficult for me to do so as the trial judge whose orders are the subject of challenge, a brief preliminary assessment for the purpose of considering the application before me for a stay suggests the wife faces significant difficulties in her proposed appeal.
Delay
The wife has not adduced evidence of enquiries she has made as to the timeframe for the likely determination of an appeal if leave is granted for her to file her notice of appeal out of time. The Application in an Appeal is endorsed with a hearing date of 28 October 2024 at 2.15 pm. The husband’s solicitor has suggested that may be a procedural hearing, although it is unclear. That date, however, relates to the Application in an Appeal, and even if the wife is granted leave to proceed with her appeal out of time, it is not known when the appeal will be heard and then determined.
Already there has been a significant delay in the husband receiving the benefit of the final property orders, namely the transfer of Suburb D to him. Subject to the other relevant considerations, he is entitled to the benefit of the final property orders which the parties agreed to, and I found to be just and equitable, on 31 May 2024.
Other matters
A stay of operation of orders 20 and 21 of the final property orders would impact third parties, namely Victoria Legal Aid and the Commonwealth Family Violence and Cross-Examination of Parties Scheme who are the beneficiaries of costs orders made against the wife on 24 April 2024.
In relation to the wife’s application to stay operation of the order transferring her interest in Suburb D to the husband and the related refinance of the mortgage into the husband’s sole name, I take into account my determination of parenting matters[14], including:
(a)The final parenting orders will see X continue to live with the husband. Transfer of Suburb D to the husband’s sole name will provide them with secure housing; and
(b)My findings made in relation to the wife’s conduct towards the husband and X, including family violence perpetrated by her. In particular, I take into account that staying the operation of the final property orders and requiring the husband to maintain joint ownership of Suburb D and to maintain a joint loan and joint responsibility for property expenses increases the risk of conflict between the parties and the risk of the husband and X being subjected to and/or exposed to further family violence by the wife. Even on the wife’s case ran at trial, where she contends that she has been a victim of family violence and family violence was found to be inflicted by both parties, she too would be exposed to a greater risk of conflict and family violence.
[14] As reflected in the parenting judgment and final parenting orders made on 23 October 2024.
Determination
Balancing all of the above considerations, I am not persuaded a stay should be granted in relation to the operation of any part of the final property orders pending determination of the wife’s application for leave to appeal or, if leave is granted, pending determination of the appeal.
Accordingly, I will make an order that the wife’s Application in a Proceeding filed on 16 October 2024 (sealed on 17 October 2024) be dismissed.
COSTS
In light of the pending Application in an Appeal, I will make an order providing for the respondent to have liberty to contact the chambers of Judge A. Humphreys by email to seek the re-listing of the application for costs made by way of his Response to Application in a Proceeding filed upon a determination of the wife’s appeal either by determination of the appeal or in the event her application for leave to file her notice of appeal out of time is dismissed in the meantime.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 25 October 2024
0
8
2