Pinney & Pinney (No 2)
[2023] FedCFamC1F 338
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pinney & Pinney (No 2) [2023] FedCFamC1F 338
File number(s): SYC 792 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – STAY OF PROCEEDINGS – Where the wife seeks a stay of interim orders pending hearing of her Application in an Appeal to extend time to file a Notice of Appeal – consideration of principles adumbrated in Aldridge & Keaton [2009] FamCAFC 106 – Stay granted for limited period until hearing of wife’s Application in an Appeal.
FAMILY LAW – APPLICATION IN A PROCEEDING – PROPERTY – Where the applicant husband seeks orders reinforcing interim orders providing for the wife to vacate the former matrimonial home – Where the wife has filed an Application in an Appeal to extend time to file a Notice of Appeal of the interim orders – Application adjourned.
Cases cited: Aldridge & Keaton [2009] FamCAFC 106 Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 3 May 2023 Place: Sydney Solicitor for the Applicant: Ms Staka, Broun Abrahams Burreket The Respondent: Litigant in person ORDERS
SYC 792 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PINNEY
Applicant
AND: MS PINNEY
Respondent
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
3 MAY 2023
THE COURT ORDERS THAT:
1.The orders made by Deputy Chief Justice McClelland in this matter on 27 March 2023 are stayed until 4pm on 17 May 2023.
2.The husband’s Application in a Proceeding filed 20 April 2023 as amended on 2 May 2023 is adjourned for hearing to 10am on 23 May 2023.
3.Within seven (7) days of the date of these orders, the parties are to file and serve written submissions of no more than five (5) pages going to the following issues:
(a)The extent to which I should consider the affidavits that each party has filed in the period subsequent to the conclusion of the hearing on 3 February 2023, in respect to the operation of the machinery orders I made on 3 February 2023, in determining what final machinery orders I should make in the proceedings
(b)In the event that I consider that further evidence, such further submissions as each party deems appropriate as to what final machinery orders should be made in respect to:
(i)The repair of the property
(ii)The renovation of the property
(iii)The sale of the property
(iv)Occupation of the property by one of the parties pending one or more of those steps in Order 3(b)(i) – (iii) above being undertaken.
4.The issue of the costs of today’s hearing is reserved as an issue to be determined on 23 May 2023.
THE COURT NOTES THAT:
A.At the next listing of this matter on 23 May 2023, the Court will invite submissions from the parties as to what final machinery orders should be made in respect to:
a.The repair of the property
b.The renovation of the property
c.The sale of the property
d.Occupation of the property by one of the parties pending the repair, renovation and/or sale of the property.
B.The parties are invited to include in their submissions such submissions as they consider appropriate to address the potentiality that I may, in my final orders, make orders for the property to be sold forthwith in the state of repair or renovation that exists as at the date of those orders unless specifically agreed otherwise by the parties in writing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pinney & Pinney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
The background to this matter has been set out in my judgment of 27 March 2023 however, by way of broad summary, this matter proceeded before me by way of final hearing for property orders in late January and early February of this year, with the final hearing date being 3 February 2023. On that day, the parties entered into orders made by consent, which I found in my subsequent reasons for judgment of 27 March 2023 had the purpose and intent of achieving an outcome whereby both parties would vacate the former matrimonial home in order to facilitate building works to that property to complete repairs and renovations such that it would be ready to be taken to market.
Accordingly, on 27 March 2023, I essentially reconfirmed the orders made by consent on 3 February 2023, subject to the following variations:
1.Within seven (7) days of the husband complying with Order 9.3 of the orders made on 3 February 2023 and confirmed in the orders made on 2 March 2023, the wife is to vacate the property situated at and known as [C Street, Suburb D] and is thereafter restrained from attending at the [Suburb D] property other than in accordance with the Orders of 2 March 2023 or with the written consent of the husband.
2.Within seven (7) days of the date of these orders, the husband is to provide the wife with the addresses of three (3) prospective rental properties that meet with the criteria specified in the Orders of 2 March 2023.
3.Within a further seven (7) days of being provided with a list of a name of those properties, the wife shall select, from that list, the property in which she wishes to reside with the children and notify the husband accordingly.
4.The husband’s obligation to comply with Order 9.3 of the orders made on 3 February 2023 shall be triggered upon the husband receiving the wife’s notification pursuant to order 3, or, in the absence of notification, the expiration of 14 days from the date of these orders.
The circumstances that have occurred since the 27 March 2023 orders are that the wife has not vacated the former matrimonial home. The wife filed an affidavit on 1 May 2023 indicating that her reason for failing to do so was the inappropriateness of potential rental properties provided by the husband for her to reside in with the parties’ children, together with some other reasons which will not be expanded upon in these reasons.
As a consequence of the wife failing to move out of the former matrimonial home, by way of an Application in a Proceeding filed 21 April 2023, the husband essentially seeks orders confirming the purpose and intent of the orders made on 3 February 2023 and subsequently varied on 27 March 2023, save to the extent that he proposes a modification such that it would be the wife that would select a suitable rental property, rather than himself.
Significantly, the husband also sought an order whereby there would be enforcement action taken by an officer of the Commonwealth to compel the wife to vacate the former matrimonial home if she did not do so within the time specified in the husband’s Application in a Proceeding. Subsequently, the husband has filed an Amended Application in a Proceeding on 2 May 2023 which slightly modifies the orders that he is seeking to take account of opposition to the orders being sought by the wife.
ORDERS SOUGHT BY THE PARTIES
Accordingly, the matters I am considering before me today are the husband’s Amended Application in a Proceeding filed 2 May 2023 and the wife’s Response to the Application in a Proceeding filed 1 May 2023.
The husband’s Amended Application in a Proceeding seeks the following orders:
1. That pursuant to the liberty to relist this matter on 48 hours’ notice (Order 11 made 3 February 2023) this application be listed before his Honour Chief Justice McClelland as soon as practicable.
2. That Order 9.3.1 – 9.3.4 inclusive and Order 9.4 of the Orders made 3 February 2023 and amended on 2 March 2023 be discharged.
3. That Orders 2, 3, and 4 of the Orders made on 27 March 2023 be discharged.
4. That the wife is required to vacate the property known as [C Street, Suburb D] within 10 days of these Orders and she is thereafter restrained from attending at the [Suburb D] property as confirmed by Order 1 made on 27 March 2023.
5. Pending the delivery of final Orders, the wife may provide the Husband with a written request to apply for a rental property on her behalf within 7kms of [F School] by providing the husband with the address and particulars of the property and the Husband will:
5.1act on that request within 48 hours of receipt of the particulars from the wife;
5.2make the application for lease and if successful enter into a lease on behalf of the wife;
5.3pay the wife’s accommodation costs up to $1,500 per week, with such payment to be made directly to the accommodation provider;
5.4Pay in full the rental bond required to secure the accommodation
6. Pursuant to Rule 11.62 of the Federal Circuit and Family Court Of Australia (Family Law) Rules 2021 a warrant for possession of the property situated at [C Street, Suburb D] in the State of New South Wales ( the [Suburb D] property) is issued authorising an enforcement officer to enter the [Suburb D] property and give possession of the [Suburb D] property to the husband and the enforcement officer shall have the following powers:
6.1To enter the [Suburb D] property;
6.2To eject [Ms Pinney] (the wife) from the [Suburb D] Property, she being the person who would not be legally entitled to be on that property pursuant to the orders made by the court on 27 March 2023 and these orders.
6.3To take possession of and secure against any interference of the [Suburb D] Property which is subject to the warrant for possession.
7. That execution of the warrant for possession referred to in Order 6 be stayed until the 15th day of the date of these Orders.
8. Upon the wife vacating the [Suburb D] property the Husband is permitted to change the locks, and remove any items within the [Suburb D] property to prepare the property for sale.
9. That the Response to an Application in a Proceeding filed by the Wife on 1 May 2023 be dismissed.
Costs
10. That the Wife pay the Husband’s costs of and incidental to this Amended Application in a Proceeding on an indemnity basis.
11. That a Costs Order made in favour of the husband be paid from the wife’s share of the sale proceeds of the [Suburb D] property prior to the disbursement of funds to the wife.
The orders sought in the mother’s Response to the Application in a Proceeding are as follows:
1.The application by [Mr Pinney] be dismissed.
2.The Orders made by his Honour Deputy Chief Justice McClelland on the 27th March 2023 be stayed pending the outcome of an appeal.
3.That a cost order be made in favour of the husband to be made on sale of the house.
Relevantly, it is to be noted that the mother’s Response seeks a stay of the orders of 27 March 2023 on the basis that she has sought leave to file an appeal out of time, where she explains that the appeal was filed marginally out of time as a result of circumstances in which she attempted to file the appeal within time but there were complications regarding issues of payment and dealing with the electronic system. Helpfully, the solicitor for the husband, as an officer of the Court, has advised that the mother’s application for an extension to file a Notice of Appeal has been listed before Appeals Judicial Registrar Cameron on 17 May 2023.
The solicitor for the husband has, with respect, appropriately agreed that the procedure that I should follow in today’s proceedings is for me to consider the mother’s application for a stay of the orders prior to considering the husband’s Application in a Proceeding originally filed 21 April 2023 and subsequently amended on 2 May 2023.
The principles to apply in respect to considering a stay in circumstances where an appeal is pending are set out in decision of the Full Court in Aldridge & Keaton [2009] FamCAFC 106 (“Aldridge & Keaton”) at [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.
In todays’ proceedings, I invited the wife to address me in respect to those matters and to make such other submissions as she considers appropriate and, equally, invited the solicitor for the husband to make such submissions as she considered appropriate. Having considered the parties’ proposals, I have determined that I should grant a stay of my orders made on 27 March 2023 for a limited period, being until 4 pm on 17 May 2023, which is the date that the wife’s application for an extension of time to file her Notice of Appeal will be heard. I do so having regard to [18] of Aldridge & Keaton, to which I have referred above, as follows.
Firstly, I acknowledge that the onus is on the applicant for the stay, that is, the wife.
Secondly, I acknowledge that the husband is entitled to the benefit of the orders made on 27 March 2023 unless and until they are set aside.
Thirdly, it is acknowledged, appropriately by the solicitor for the husband, that the judgment contains an error in [22] as noted by the wife insofar as I have incorrectly referred to counsel for the wife whereas, in fact, the relevant quotes I have included from the transcript were from the submissions of counsel for the husband. Nonetheless, it is contended by the solicitor for the husband that that acknowledged error is of a technical nature and is not such that it would infect the validity of the entire judgment. In summary, the husband’s solicitor contends that it is not an error that impacted on the outcome of that decision.
I acknowledge that, in accordance with item four in [18] of Aldridge & Keaton, mere filing of a Notice of Appeal is insufficient to grant a stay. Additionally and relevantly in this matter, I have also had regard to the fact that the wife has not as yet been granted leave to file her Notice of Appeal out of time, which is an additional matter that I have had regard to in the exercise of my discretion.
Item five in [18] of Aldridge & Keaton relates to the bona fides of the applicant for the stay. In circumstances where I am yet to deliver final judgment in respect of the substantive proceedings that I heard in late January and early February, it is inappropriate for me to comment on the bona fides of either party in respect to events that have occurred subsequent to that hearing.
Item six notes that the stay is to be granted on terms that are fair to all parties. I have had regard to that paragraph in granting the stay for a limited period, that is, it would be unfair and unreasonably prejudicial to the husband for me to grant a stay on an indefinite basis in circumstances where the wife has not yet been granted an extension of time to file her Notice of Appeal, and it is possible she may not succeed in that respect.
Item seven is a significant issue that I have had regard to, that is, the risk that the appeal may be rendered nugatory if the stay is not granted. In that respect, the solicitor for the husband makes a valid point that the wife’s rights, as she sees them, to occupy the former matrimonial home pending sale will not be negated if I fail to grant the stay as the property would, in that event, likely remain vacant and she would be able to resume occupancy in the event that the appeal is successful.
On the other hand, I note the reality that the task of the wife moving herself, the children and belongings from the property would be a significant burden. Additionally, I accept there would be complications associated with obtaining a release from any tenancy agreement in respect to a rental property that she may move into pending hearing of the appeal.
In considering that issue, I have also had regard to the fact that irrespective of whether or not I grant a stay of the orders made on 27 March 2023, both parties remain under the obligations imposed by the orders made on 3 February 2023. Nonetheless, while I accept the submission of the solicitor for the husband that the appeal will not be rendered nugatory if the stay is not granted, the consequence of not granting the stay would cause the complications to which I have earlier referred and, additionally as I will mention, involve impact on third parties, namely the parties’ children.
In terms of item eight in [18] of Aldridge & Keaton, which is a preliminary assessment of the strengths of the proposed appeal, I respectfully agree with the submission of the solicitor for the husband that the wife has several difficulties:
·The wife has not been granted and may not be granted an extension of time to file her Notice of Appeal;
·It is a matter for her to file the Notice of Appeal presumably expeditiously if she is granted an extension of time; and
·In respect to a matter that I raised with the parties, the fact that in circumstances where the mother is seeking to appeal interlocutory orders, that is, orders that will operate until final orders are made, it is necessary for her to obtain leave to appeal, which involves the wife establishing not only error but also that it is in the interests of justice for that decision to be overturned.
In terms of item nine, while I accept that paragraph nine of the principles adumbrated in Aldridge & Keaton relate to parenting proceedings, for the reasons I set out in my decision of 27 March 2023, in considering orders which are in the nature of injunctive orders imposing obligations on the parties it is, in my view, appropriate to consider the potential impact on the children.
In that context, I have had regard to the fact that the orders sought by the husband if the stay is not granted include, ultimately, in the event of the wife failing to comply with those orders, an application for orders which are coercive in nature. In particular, proposed order 6 provides for a warrant for the possession of the property be issued, with that warrant to be enforced by an enforcement officer being authorised to enter the property and compel the wife to vacate the property in accordance with the terms of those orders. I note that the execution of the warrant for possession would potentially involve the exercise of coercive force upon the wife, with the potentiality that the events associated with the exercise of that force against the wife may be witnessed by the children. That is an outcome that I would regard as an outcome of last resort and would not be exercised in circumstances where there is at least a credible argument that there was an error contained in my judgment of 27 March 2023.
Finally, item 10 deals with the period of time within which the appeal can be heard. In the circumstances of this case, I am not focusing on the period of time within which the appeal can be heard, but rather, focusing on the period of time within which the wife’s application for an extension of time to file her Notice of Appeal can be heard, and on that basis, I have granted the stay for a limited period.
In circumstances where I grant a stay of the orders for a limited period, I propose adjourning the husband’s Amended Application in a Proceeding for hearing at 10am on 23 May 2023. I anticipate that I will have, by that time, handed down judgment in the substantive proceedings. Accordingly, I will also invite the parties address me on that occasion in respect to the final machinery orders that I should make to give effect the reasons I will subsequently deliver, relating to the just and equitable adjustment of the parties’ property.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 9 May 2023