Price & Underwood (Stay Appeal)
[2008] FamCAFC 51
•2 May 2008
FAMILY COURT OF AUSTRALIA
| PRICE & UNDERWOOD (STAY APPEAL) | [2008] FamCAFC 51 |
| FAMILY COURT – APPEAL – Application for stay of orders – Appointment of Case Guardian to seek divorce – Husband terminally ill – Divorce order made to take effect on rising of the court APPEAL – Refused – Refusal to grant stay upheld COSTS – Reserved |
| Family Law Act 1975 (Cth) |
| House & the King (1936) 55 CLR 499 |
| APPELLANT: | MS PRICE |
| RESPONDENT: | MS UNDERWOOD AS CASE GUARDIAN FOR MR UNDERWOOD |
| FILE NUMBER: | MLC | 13425 | of | 2007 |
| APPEAL NUMBER: | SA | 28 | of | 2008 |
| DATE DELIVERED: | 2 May 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane, Sydney and Melbourne via video link |
| JUDGMENT OF: | May, Boland & Ryan JJ |
| HEARING DATE: | 17 April 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 April 2008 |
| LOWER COURT MNC: | [2008] FamCA 260 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Molyneux QC |
| SOLICITOR FOR THE APPELLANT: | Maria Barbayannis & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Brown SC |
| SOLICITOR FOR THE RESPONDENT: | Nicholes Family Lawyers |
Orders 17 April 2008
That the appeal against the refusal to stay the orders of the Honourable Justice Watts made 16 April 2008 is dismissed.
That the hearing of the appeal against the orders of the Honourable Justice Watts made 16 April 2008 be expedited.
That a procedural hearing be conducted by the Appeals Registrar to settle the appeal book index and make such other procedural orders as are necessary for the appeal to be heard on Thursday, 8 May 2008 in Melbourne.
Orders 2 May 2008
That the costs of this appeal be reserved to the Full Court hearing the substantive appeal against the orders of the Honourable Justice Watts made 16 April 2008.
Certify for counsel.
IT IS NOTED that publication of this judgment under the pseudonym Price & Underwood (Stay Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: SA 28 of 2008
File Number: MLC 13425 of 2007
| MS PRICE |
Appellant
And
| MS UNDERWOOD AS CASE GUARDIAN FOR MR UNDERWOOD |
Respondent
REASONS FOR JUDGMENT
This is an appeal about a refusal of Watts J to grant a stay of various orders.
An application for divorce was first filed by the husband. A Federal Magistrate made the divorce order. From that order there was a successful appeal by the wife.
The husband’s daughter, Ms Underwood, holding his Enduring Power of Attorney then applied to be appointed a Case Guardian and applied for a divorce order which was granted by Watts J on 16 April 2008. At the time of the hearing before the judge the husband was terminally ill.
An oral application was made before Watts J by the wife that his orders be stayed. The Judge refused the application. The focus of this appeal was upon Watts J’s refusal to stay his order whereby the divorce order was effective upon the rising of the court.
An appeal was filed from Watts J’s orders. That appeal has been expedited and is listed for hearing on 8 May 2008. We dealt with the appeal from the refusal to stay the orders as it was said it should be heard with some urgency. Orders were made by the Full Court refusing the stay appeal on 17 April 2008. These are our reasons.
Watts J made the following orders on 16 April 2008:
1.[Ms Underwood] be appointed as case guardian
2.Leave be granted to the solicitor for the case guardian to file an Application for Divorce in court.
3.The Family Law Rules in relation to special service of the Application for Divorce, are dispensed with, so that the divorce application may proceed before me today.
4.The Husband is domiciled in Australia at the date of filing of the application for divorce.
5.I find that the parties were married at Melbourne [in] February 1986.
6.I find that the ground that the marriage has broken down irretrievably proved based on a separation date not later than 3 April 2007.
7.I make a divorce order.
The amended appeal from those orders includes 13 grounds of appeal. For present purposes it is only necessary for us to say that it is apparent that the appeal is both bona fide and that there are grounds which appear to have merit.
These orders are proposed, should the appeal succeed:
1.That the orders appointing [Ms Underwood] as Case Guardian be set aside.
2.That the Decree Nisi made 16 April 2008, alternatively the Decree Nisi and the Decree Absolute be set aside.
3.In the alternative that the Decree Nisi made 16 April 2008, alternatively the Decree Nisi and the Decree Absolute is or are void.
4.In the alternative, a declaration that the Decree Nisi made 16 April 2008, alternatively the Decree Nisi and the Decree Absolute is or are invalid.
5.In the interim, that the operation of the Decree nisi be stayed.
6.Alternatively, that the operation of the Decree Absolute be stayed pending hearing and determination of the Appeal.
7.Costs.
There are no grounds specifically directed to the refusal to stay the orders made on 16 April 2008, but no point was taken by counsel for the Case Guardian on that issue.
In view of the short time which elapsed from the making of the orders and the hearing of the appeal we did not have his Honour’s reasons for judgment or transcript of the hearing. However, neither party argued given the urgency of the situation that this precluded us from determining the appeal, or that we should defer the hearing of the appeal until his Honour’s reasons and/or the transcript were available.
The appeal against the refusal to order a stay raises two questions:
1.The correct principles to be applied in determining a stay from orders involving a divorce; and
2.Whether there was any appellable error by the trial judge in the exercise of his discretion in refusing to grant a stay of his orders.
Appellant’s submissions
The written submissions for the appellant seemed to rely on speculation about policy rather than the provisions of the Family Law Act 1975 (Cth) and settled authority.
Paragraph 6 of the submissions asserted:
Upon the appellant ceasing to be a spouse (and a beneficiary of the […] Investment Trust), the appellant arguably may have no standing to seek an injunction against the legal owners of [the matrimonial property] to preserve the subject matter of a s. 79 application.
We were informed that although there are s 79 proceedings, the wife had not yet taken any steps against third parties although she intended to do so. It was conceded that the wife had known since April 2008 that there had been a distribution by trustees of assets of the […] Investment Trust (“the trust”) and from February 2008 that she had not been nominated as a beneficiary under the husband’s superannuation policy. We were also informed that the application of the wife for property orders currently does not particularise the orders sought.
It is correct that s 93 provides that “An appeal does not lie from a divorce order after the order has taken effect”. We are also aware of decisions where although a divorce has become absolute the orders have been set aside.
In oral submissions, senior counsel emphasised the concern that should the husband die then there may be no remedy available to the wife in relation to claiming an interest in property including trust property where she was a discretionary beneficiary of the trust in the category of “spouse”.
Respondent’s submissions
Although we do not come to any conclusions about the matter it seems that other remedies may be available to the wife. We reproduce here, in part the written submissions on behalf of the respondent.
4.The Wife’s remedy, if indeed she has one, is to seek an order under section 113 of the Family Law Act for a declaration that the order for the divorce to be granted and to take immediate effect be declared void. The circumstances in which that may be done are extremely limited.
5.If the Wife succeeds on relevant parts of the appeal, that may mean that she is able to persuade the Court that the order made was void. If that is the outcome, the order is void ab initio. If the order is not void, then the Wife cannot appeal against it, by reason of section 93.
…
7.For those reasons, there is no necessity for a stay of the operation of the divorce order, given that a successful application for a declaration under section 113 (which may or may not be a consequence of a successful appeal) would not be rendered nugatory if a stay is not granted.
8.….If the order is ultimately found to be void, it will not matter when that declaration is made.
In oral submissions, senior counsel emphasised that a stay would have the effect of there being no final divorce order at the time of the husband’s death. Section 55(4) provides:
A divorce order does not take effect by force of this section if either of the parties to the marriage has died.
It was further submitted that if the appeal is ultimately dismissed, the effect of a stay is that a divorce order would not have taken effect and could not be remedied. We think there is some force in that submission.
Mr Brown submitted in relation to the trust that either it was property in the sense of being the alter ego of the husband in which case it could be attacked, but if not then the wife’s remedies are not affected by the divorce or the husband’s demise. In addition, the children’s rights as discretionary beneficiaries are not affected by the divorce.
Relevant Law
This is an appeal from a discretionary judgment. The limits on the interference by an appeal court are well known. See House v The King (1936) 55 CLR 499
The court has an inherent power to grant a stay. In this case, although the subject of the dispute was not parenting orders we are mindful that one of the grounds of the appeal relates to a child’s financial interests. However, it could not be said that there is in this case a necessary consideration of the child’s best interests as is described in cases related to a stay of parenting orders.
We accept that the appeal may be based on substantial grounds. Orders were made to expedite the hearing of the appeal due to its nature. We do not see that there is any utility in the appeal against the refusal of the order for a stay being granted. In our view a stay may not be of any benefit to the wife due to the unusual facts of this case and the remedies available to her, but may create a substantial detriment to the marriage status of the husband. In this case it is not clearly necessary that a stay be ordered to preserve the subject matter of the appeal.
There being no error demonstrated in Order 2 of the orders made by Watts J on 16/04/08 we would dismiss the appeal.
Costs
Although the costs of the stay appeal were not specifically reserved in an order, there were some discussions at the conclusion of the hearing of the appeal. Any submissions in relation to those costs may be made after the judgment is delivered in the substantive appeal. The outcome of that appeal will be a significant matter to consider in relation to the costs of the stay appeal.
I certify that the preceding Twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 1 May 2008
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