Pellam and Valasco (No 2)
[2021] FCCA 1345
•18 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pellam & Valasco (No 2) [2021] FCCA 1345
File number(s): PAC 6127 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 18 June 2021 Catchwords: FAMILY LAW – Husband’s stay applications relating to Orders enforcing final consent property adjustment Orders – stay applications dismissed subject to one stay Order proposed by Wife Legislation: Federal Circuit Court Rules 2001 r 16.05(2)
Family Law Rules 2004 r 22.11(2)
Family Law Act 1975 (Cth) s 79A
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92-194
Number of paragraphs: 61 Date of last submission/s: 15 June 2021 Date of hearing: 15 June 2021 Place: Parramatta The Applicant Father appeared in person Solicitor for the Respondent: Ms Bonthorne ORDERS
PAC 6127 of 2018 BETWEEN: MS PELLAM
Applicant
AND: MR VALASCO
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.That Order 1(e) of the Federal Circuit Court of Australia at Parramatta made on 28 January 2020 be stayed and the proceeds of sale be held in the trust account of the Wife’s solicitors Mathews Dooley & Gibson pending the determination of the appeal of Mr Valasco filed on 1 June 2021.
2.That the Application in a Case filed 2 June 2021 of the Husband is otherwise dismissed.
.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 under the pseudonym Pellam & Valasco (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This is the determination of the Husband’s Application for a stay of property related Orders made by this Court on 14 May 2021. This Application is resisted by the Wife subject to one Order, referred to below.
Essentially, through the Husband’s present stay Applications, he seeks to remain living in the former matrimonial home (hereinafter referred to as the property) and avoid ejection, and seeks to avoid the property being sold pursuant to consent property adjustment Orders made on 28 January 2020.
BACKGROUND
On 28 January 2020, the parties, then legally represented, and appearing at Court, requested the Court to make property Orders in accordance with signed proposed consent Orders and the Court made Orders in accordance with those proposed consent Orders. Thereafter, the Wife instituted enforcement proceedings in accordance with those Orders, in view of the Husband refusing to leave the property, so as to allow the property to be sold in accordance with the Orders.
The Court made enforcement related Orders, as sought by the Wife, ultimately leading to the Court issuing a warrant for possession and authorising an enforcement officer to eject the Husband from the property.
The Husband then sought Orders from the Court seeking to set aside certain enforcement related Orders, including the warrant for possession and ejection authorisation. The Husband was unsuccessful before the Court, and the Court on 14 May 2021 dismissed the Husband’s relevant Applications under, inter alia, section 79A of the Family Law Act 1975 (Cth) (“the Act”) and Rule 16.05(2)(a) of this Court’s Rules.
The Wife, in relation to the current stay Applications, seeks an Order that Order 1(e) of the Court’s Orders of 28 January 2020 be stayed and the net proceeds of sale of the property be held in the trust account of the Wife’s solicitors pending the determination of the appeal of Husband filed on 1 June 2021. Otherwise, the Wife seeks the dismissal of the Husband stay Applications sought in his Application in a Case filed 2 June 2021.
MATERIALS RELIED UPON
The Husband relies upon:
(a)His Application in a Case filed 2 June 2021;
(b)His Affidavits filed 2 June 2021, 11 June 2021, and 14 June 2021.
The Wife relies upon:
(a)Her Response filed 9 June 2021;
(b)Her Affidavit filed 9 June 2021.
LEGAL PRINCIPLES
The Husband relies on this Court’s power to order a stay of an order appealed from under Rule 22.11(2) of the Family Law Rules 2004.
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at 17-18, and 36, it was stated:
[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate Court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
[18] The principles to be applied in determining an Application for a stay of Orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). 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 desirability of limiting the frequency of any change in a child’s living arrangements;
•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
•the best interests of the child the subject of the proceedings are a significant consideration.
DISCUSSION
The Court, for the purposes of this judgment, refers to and incorporates its Reasons for Judgment of 14 May 2021.
By reference to the above legal principles, the Court makes the following observations and comments.
The onus to establish a proper basis for the stay is on the Husband.
Prima facie, the Wife is entitled to the benefit of the Court’s Orders of 14 May 2021, and she is entitled to presume the judgment is correct.
The mere filing of the Husband’s Application in a case filed 2 June 2021 seeking a stay is insufficient to grant a stay.
As to the bona fides of the Husband’s stay Application, whilst, as discussed below, the Court assesses his grounds of appeal as without merit, it is prepared to accept that he genuinely believes that his grounds of appeal have substance.
The Husband submitted that his Appeal, would be rendered nugatory if the stay was not granted.
In this context, the Husband submitted, inter alia, that this was so because if he is ejected from the property pursuant to the Court’s previous enforcement related Orders, and the property is sold, his Appeal will be rendered nugatory. However, this submission, to be properly considered by the Court, requires a preliminary assessment by the Court of the strength of the Husband’s Appeal.
The Court refers to the Husband’s Notice of Appeal, including the facts alleged under the heading “Leave to Appeal”, and his 18 stated Grounds of appeal.
Under the heading “Leave to Appeal” the Court makes the following comments, bearing in mind that there is considerable overlap between the facts alleged under the heading “Leave to Appeal” and the pleaded Grounds of Appeal:
As to paragraph 3, the Husband’s relevant Applications were under Rule 16.05 (2)(b) and/or section 79A(1)(a) of the Act, and under Rule 16.05 (2)(a).
As to the balance of the paragraphs under the heading “Leave to Appeal”, the Court refers to its Reasons for Judgment of 14 May 2021.
As to the Husband’s Grounds of appeal, the Court makes the following comments:
Ground 1:
This ground lacks merit because the Court had found, inter alia, that the evidence of the Husband’s former solicitor and his solicitor colleague should be accepted; they had physically observed the Husband initial and sign the consent Orders of 28 January 2020 in their presence outside Court on 28 January 2020.
Grounds 2 and 8, 9:
As to the contended relevant discrepancy between the evidence of Mr Ford, solicitor for the Wife, and Mr B, the Husband’s former solicitor, this had been the subject of submissions made by the Husband. In any event, the Court refers to its Reasons for Judgment relating to the acceptance of the evidence of Mr Ford and Mr B and his solicitor colleague; it can be inferred from the Court’s Reasons for Judgment, that such a discrepancy was not deemed material by the Court in this context.
There is no merit to these grounds.
Grounds 3 and 14:
These contended grounds have been rendered immaterial because the Wife has consented to Order 1(e) of the Court’s Orders of 28 January 2020 being stayed with the proceeds of sale of the property being held in the trust account of the Wife’s solicitors pending determination of the appeal of the Husband.
Ground 4:
In relation to this Ground, the Court had stated in its reasons for judgment, in paragraph 15, “He did not articulate the legal bases upon which he relied to seek to set aside those Consent Orders and the Court has inferred that he relies upon Rule 16.05(2)(b) and/or section 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”)”.The Court, in its reasons for judgment, proceeded to deal with the Husband’s Applications on that basis.
There is no merit in this ground.
Ground 5:
Respectfully, this ground is a misstatement of the Court’s Reasons for judgment in relation to the issue of “fraud”. The Court had stated in paragraph 16:
“Fraud”, for the purposes of the provisions of section 79A, means “conscious wrongdoing or some form of dishonesty”: see Byrne v Byrne (1965) 7 FLR 342 at page 343. And see Taylor v Taylor (1979) FLC 90 – 674 at pp 78, 589, 78, 590, 78, 594 and 78, 595, in relation to fraud and the giving of false evidence. These cases appear to indicate that a party alleging fraud or the giving of false evidence will usually make such allegations against the other party to the proceedings rather than against his own legal representative.”
In paragraph 17 and following of the Court’s reasons for judgment, the Court discussed the Husband’s allegations of fraud and/or failures to act in accordance with his instructions made against his former solicitor, ultimately finding, in paragraph 29a), that there was no fraud on the part of the Husband’s former solicitor in relation to the consent Orders of 28 January 2020.
There is no merit to this ground.
Ground 6:
Contrary to the assertion in Ground 6, the Court had found, giving reasons, that the Husband had agreed to the consent Orders of 28 January 2020.
There is no merit to this ground.
Ground 7:
In paragraph 17 of the Court’s reasons for judgment, it stated:
7. Bearing in mind that the Husband’s allegations of fraud and/or failures to act in accordance with his instructions are made against his former solicitor, the Court should refer to general legal principles in relation to the meaning of “miscarriage of justice” by reason of “any other circumstance” under section 79A.
Accordingly, it was appropriate for the Court to discuss relevant legal principle as referred to In theMarriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92-194.
There is no merit in this ground.
Ground 10:
The Court refers to paragraphs 23, 24 and 26 of its reasons for judgment. Respectfully, it was reasonable for the Court to observe, in paragraph 26, that the Husband had been provided with a copy of the consent Orders of 28 January 2020 at least by about 16 July 2020, yet it was not until 18 February 2021, after questioning from the Court to the Husband in relation to the signing of the consent Orders of 28 January 2020, that the Husband allegedly first observed that his purported signatures or initials on pages 1 and 2 of those consent Orders were not his signatures or initials.
There is no merit in this ground.
Ground 11:
Contrary to the assertion in Ground 11, the Court had found, as referred to in its reasons for judgment (for example, see paragraph 27) that the Husband had not successfully challenged the evidence of his former solicitor and solicitor colleague.
There is no merit in this ground.
Ground 12:
The Court had provided the Husband with a copy of the transcript of proceedings on 28 January 2020; Exhibit A. There was no suggestion from the contents of the transcript, or indeed from the Court’s findings, that any error had occurred in the making of the transcript.
There is no merit in this ground.
Grounds 13, 17, and 18:
The Court refers to that part of its reasons for judgment of 14 May 2021 dealing with the Husband’s Application in a Case seeking an order to set aside the Court’s Orders of 23 December 2020; in particular paragraphs 6, 7, 30 (c), 32, 33, and 34 of those reasons for judgment. It is apparent from the Court’s reasons for judgment that the Court found, inter alia, that the Husband had been given adequate notice of the Wife’s enforcement proceedings, and that the Husband could read the English language. It is further apparent that the Court had considered the Husband’s contention that he did not understand the nature and quality of the documentary material that he was receiving from the Wife’s solicitors, in relation to the Wife’s enforcement proceedings, but had rejected such contention having found, inter alia, that the Husband understood that if he did not attend Court on 9 November 2020 and 23 December 2020, the Orders that the Wife was seeking in her Applications in a Case, in relation to the property, might be made in his absence.
Further, by reference to the above paragraphs in its reasons for judgment, it is readily apparent that the Court afforded the Husband procedural fairness throughout the hearing, including through the provision of an interpreter, the preparedness of the Court to permit the Husband’s friend to be present in Court to assist the Husband with any language issues, and the preparedness of the Court to adjourn the proceedings to allow the Husband to present additional evidence relating to his allegations.
There is no merit in these grounds.
Ground 15:
In this Ground, the Husband contends that, “since the conclusion of the trial fresh evidence has recently come to light that the former solicitor of the Husband regularly contacted the Wife directly and without the knowledge of the Husband during the pendency of the case, which categorically indicates collusion between the former solicitor and the Wife. This evidence is credible, it was not available at the time of trial, and would have affected the outcome in as much as it establishes fraud on part of both the former solicitor of the Husband and the Wife.”
In support of this Ground, the Husband relies in particular upon his Affidavit filed 14 June 2021, paragraph 14 which alleges:
Fresh evidence has recently come to light that my former solicitor regularly emailed the Wife directly and without my knowledge during the pendency of the case, which categorically indicates collusion between the former solicitor and the Wife. Annexed hereto and marked with the letter A is a copy of the communication history between my former solicitor and the Wife. This evidence is credible, it was not available at the time of trial and would have materially affected the outcome.
Annexure A to the above Affidavit of the Husband, being the alleged “communication history” between Husband’s former solicitor and the wife is a particularly brief document, the source of which is unknown, and on its face merely refers to a person having “frequently emailed” “Ms Pellam” (noting the Wife’s Christian name is Ms Pellam) and “M” on average, “0.2 times/week, total 13 times”. No dates are given in this brief document and the content of the “communication history” is not given. This document does not suggest collusion between the Husband’s former solicitor and the Wife. The contents of this document could not have materially affected the outcome of the Court’s determination of 14 May 2021.
There is no merit in this ground.
Ground 16:
In relation to this Ground and J Law Firm, being former solicitors acting for the Husband, the Court refers to paragraphs 26, and 30 (i) of its reasons for judgment. Respectfully, the findings and related observations of the Court in the above paragraphs were open to be made by the Court despite, “the absence of any specific statement from J Law Firm affirming such proposition”.
There is no merit in this ground.
Having considered all the material presently before the Court, and including the above discussions in relation to the Husband’s Leave to Appeal contentions and grounds of appeal, the prospects of leave to appeal being granted and/or the appeal succeeding are low.
In light of the above view and related discussions (above) of the Court relating to prospects, the risk of the Husband’s Application for leave to appeal and/or appeal being rendered nugatory if the stays sought are not granted is not significant.
As to 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, the Court is mindful that the Husband’s Application for leave to appeal and/or appeal may not be listed for hearing for at least 6 months, subject to expedition or some other listing imperative. In this context, and in any event, the Court observes the following matters which are taken into account by the Court:
(a)In the Wife’s Affidavit filed 9 June 2021, paragraph 7, she states that:
7.(The Husband) has been living in the H Street, Suburb C property since October 2020. (The Husband) has not made any mortgage repayments and is not paying the Council and water rates. Annexed and marked E is a copy of the Westpac Home Loan transaction statement showing the last repayment was made in January 2020. There is currently $576,000 owing on the mortgage, and the mortgage is $59,000 in arrears.
9. I have been corresponding with the bank regularly regarding the status of these proceedings and the sale of the property. I have recently received a pre-default notice indicating that the bank will take steps to take possession and sell the property if the amount in arrears is not paid “immediately”. Annexed and marked H is a copy of that notice.
10. In early June 2021, I had a telephone conversation with an employee of the Westpac Priority Assist Department who introduced himself as “Mr N”. During that conversation, Mr N said words to the effect of, “We can hold off until the end of this month, but we need an update on the sale. We can’t hold it off beyond that.
Annexure H states, inter alia:
25 May, 2021
Pre-Default Notice
Product: Rocket Investment Loan
Amount due: $59,273.88
Your account remains overdue despite previous requests for payment. If payment is not received, a legal default notice will be issued to you shortly.
Your Next Steps:
-Please pay the amount due immediately.
….
Failure to resolve this issue will involve listing your default with one or more credit reporting agencies, which may affect your ability to obtain finance and/or credit for up to five years.
The Husband, in relation to the above paragraphs in the Wife’s Affidavit, asserts that the Pre-Default Notice does not indicate that the bank might take steps to take possession and sell the property if he fails to pay the amount due immediately. This assertion lacks credibility; there is a significant suggestion from the above evidence of the wife and the terms of the Pre-Default Notice that the issuing of a “legal default notice” to the parties “shortly” is likely a step along the legal pathway to the bank commencing legal proceedings for possession of the property with a view to exercising the mortgagee power of sale and which could well result in financial loss to the parties. Similarly, the Husband’s bald assertion that, “In view of the above, there is no risk or possibility that the Bank will take any step to take possession and sell the property in the event of the mortgagor is not being paid immediately” lacks credibility.
Accordingly, on the material before the Court, there is a significant risk that should the Court grant the stay Applications sought by the Husband, the bank will continue to take steps to entitle it to commence possession proceedings with a view to it exercising the mortgagee power of sale and which could well result in financial loss to the parties.
The Husband asserts that he wants to keep the property for the future of his daughter and for that reason he wants to purchase the Wife’s share. He asserts that he has the financial resources to purchase the Wife’s share in the property without giving any credible financial information to suggest that this is the case. To the contrary, in the Husband’s email letter to the bank, being Annexure B to his Affidavit filed 11 June 2021, he states, inter alia, that, “Because of Covid pandemic I have been struggling financially.” And again, it is readily apparent from the Wife’s Affidavit that the Husband has not been making any mortgage repayments, at least since living in the property since October 2020, and the mortgage arrears are about $59,000.
The Court has considered all the legal authorities presented by the Husband to the Court, principally in relation to stay Applications, both as referred to in his Affidavits and otherwise. They are consistent with the above decision in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, as referred to above.
Accordingly, the Court makes the following Orders:
1.That Order 1(e) of the Federal Circuit Court of Australia at Parramatta made on 28 January 2020 be stayed and the proceeds of sale be held in the trust account of the Wife’s solicitors Mathews Dooley & Gibson pending the determination of the appeal of Mr Valasco filed on 1 June 2021.
2.That the Application in a Case filed 2 June 2021 of the Husband is otherwise dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 18 June 2021
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