RIVALLI & RIVALLI

[2018] FamCA 64

FAMILY COURT OF AUSTRALIA

RIVALLI & RIVALLI [2018] FamCA 64

FAMILY LAW – APPLICATION FOR STAY – Where application for stay pending Appeal to Full Court – Final property orders – Consideration of applicable principles – Stay granted on terms.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.11

Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548
Jackson & Balen [2009] FamCAFC 131

Rivalli [2017] FamCA 984

APPLICANT: Mr Rivalli

RESPONDENT: Ms Rivalli

FILE NUMBER: PAC 3326 of 2014

DATE DELIVERED: 9 February 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 24 January 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Mr Rivalli

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Maclarens

Orders

1. That Orders 4, 5 and 6 made on 1 December 2017 be stayed pending further order or disposition of the husband’s Notice of Appeal filed 20 December 2017.

2. That the time for compliance by the husband with Order 1 made 1 December 2017 be extended to 4.00 pm 2 March 2018 and that thereafter the husband is restrained from approaching or entering upon the property at B Street, Suburb C.

3. That pending further order the wife have sole use (including the right to rent out) and occupation of the property at B Street, Suburb C as and from 4.00 pm 2 March 2018 and that thereafter the wife pay as they fall due and payable outgoings including property insurance and mortgage payments in respect to the property.

4. That in default of the husband’s compliance with order (2) above a Warrant for Possession pursuant to Rule 20.54 of the Family Law Rules 2004 issue in respect to the property at B Street, Suburb C forthwith so as to provide vacant possession of the property to the wife Ms Rivalli.

5. Liberty to apply to the Court in chambers for the Warrant for Possession to issue.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rivalli & Rivalli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3326  of 2014

Mr Rivalli

Applicant

And

Ms Rivalli

Respondent

REASONS FOR JUDGMENT

1. On 1 December 2017 final orders were made as to property adjustment between the then respondent husband and the applicant wife: Rivalli [2017] FamCA 984.

2. Those final property orders were as follows:

   (1)That the husband vacate the property situate at [B Street, Suburb C] by no later than 28 days from the date of these orders and that thereafter the husband is restrained from approaching or entering upon the said property.

   (2)That as and from 28 days from the date of these orders the wife have sole use and occupation of the property at B Street, Suburb C.

   (3)That the husband pay as they fall due and payable council and water rates levied in respect to the property at [B Street, Suburb C], mortgage payments as they fall due and payable in respect to the mortgage presently secured against the said property and maintain house property insurances until he vacates the said property.

   (4)That within three months from the date of these orders the wife pay to the husband $41,330.00 and in consideration of such payment the husband do all things necessary to transfer to the wife his interest in the property at [B Street, Suburb C] including signing the necessary memorandum of transfer and signing all documents so as to permit the wife to procure a discharge of the mortgage presently secured against the said property.

   (5)That concurrently with the payment provided for above the wife refinance the mortgage presently secured against the property at [B Street, Suburb C] so as to release the husband from all or any liability arising from the said mortgage.

   (6)That in default of the wife paying to the husband the sum provided for above the parties shall do all things necessary to sell the home at [B Street, Suburb C] for the best price reasonably obtainable and the net proceeds of sale be apportioned between the husband and wife so as to effect an overall division of property as to 52.5 per cent to the wife and 47.5 per cent to the husband by reason of the asset pool otherwise determined in paragraph [55] of these reasons for judgment.

   (7)Liberty to apply as to implementation or enforcement of these orders.

3. At all relevant times the husband in the proceedings appeared as an unrepresented litigant. He continues to appear unrepresented.

4. On 20 December 2017 the husband filed a Notice of Appeal to the Full Court of this Court in respect to orders made on 1 December 2017.

The Notice of Appeal

1. The Notice of Appeal:

   a)purports to seek leave to appeal where no such leave is required;

   b)asserts that the facts relied upon in support of the application for leave to appeal are as follows:

   i)False, misleading and fraudulent documents.

   ii)Inadmissible evidence obtained from Country M, without going through the proper channels (the existing protocol between Country M and Australia).

   iii)Errors in law and gross miscalculation.

   iv)Further details regarding iii) have been put into the document named “Analysis of the case”.

2. The grounds of appeal specified in the Notice of Appeal are as follows:

   a)Outstanding application for dismissal, set to be addressed on 30 January 2018, under Application in a Case.

   b)Denial of my natural Justice and gross procedural unfairness.

   c)The valuations from Country M for my property are either false or misleading and, as a result, inadmissible. They were not authored by the proposed authors and do not exist in the N Court. Any judgment made based on these documents is inadmissible as they were not served through the necessary channels.

   d)The primary application unlawfully declared me as undefended.

   e)Further explanation is provided in two volumes, sent to the registrar.

   f)An additional four documents, an Application in a Case, includes four documents such as the valuation from the hearing on 30 January 2018.

The applicable principles

1. It is well settled that a stay will not be granted lightly or as a matter of course.

2. The power to order a stay (r 22.11 of the Family Law Rules 2004 (Cth)) is incidental to the right of appeal and derives from the inherent power of the Court to do whatever is necessary to prevent injustice in relation to the proceedings in the Court: Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548.

3. In Jackson & Balen [2009] FamCAFC 131 the Full Court said at [28]:

   The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1][1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd(1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[1986] HCA 84; (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   a)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;

   b)a person who has obtained a judgment is entitled to the benefit of that judgment;

   c)a person who has obtained a judgment is entitled to presume the judgment is correct;

   d)the mere filing of an appeal is insufficient to grant a stay;

   e)the application must be bona fides;

   f)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;

   g)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;

   h)some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.

4. The ambit for appellate intervention in a discretionary judgment such as the one impugned by the husband is well settled:

   It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred: House v R [1936] HCA 40.

The present application for stay

1. The husband relied on:

   a)His Application in a Case filed 22 December 2017;

   b)his affidavit filed 22 December 2017;

   c)his further affidavit filed 11 January 2018.

2. The wife in response to the husband’s application relied upon the following documents:

   a)her Response to an Application in a Case filed 16 January 2018 that also incorporated relief sought as to enforcement of the primary orders;

   b)her affidavit filed 16 January 2018.

3. As has been the case throughout these proceedings, it has been difficult to identify with any clarity the arguments of the husband. His affidavits have been prolix, confusing and mostly in the form of submissions.

4. Doing the best in the circumstances the following matters seem to be the subject of relevant complaint by the husband as to the conduct of the final hearing and as to the judgment itself:

   a)The value of the husband’s property in Country M; the husband asserts it appears there was no evidence as to the value of the said property. At [19] in the reasons for judgment the affidavits as to value relied upon by the wife are clearly identified. There is no substance in this complaint.

   b)The “balance sheet” does not contain the bridal money: At [55] of the reasons for judgment the balance sheet or assets and liabilities of the parties are clearly identified including the marriage portion or bridal money as referred to by the husband. The wife at trial conceded that the bridal money payable to her by reason of a verdict in the Country M Court should be included as an asset and the husband’s liability for that payment likewise as a liability. There is no substance to this complaint.

   a)That the proceedings were heard on an “undefended” basis: the history of the matter and the reasons for the matter proceeding as it did are clearly set out in the reasons for judgment [2] to [16]. It is considered that there is little substance or merit in this complaint.

   b)That the affidavits as to value relied upon by the wife were unlawfully admitted into evidence and fraudulent. The husband appears to rely in this regard on something said to him by his brother and an asserted protocol issued by the Country M Embassy.  There appears to be no substance in this complaint.

5. Otherwise the husband makes many and varied rambling accusations and allegations as against the Court, the wife, her legal representatives, the Family Court of Australia, and the Australian justice system in general. Most, if not all, of his complaints have no relevance at all to the present application for determination or indeed the judgment itself.

6. The husband in his affidavit material simply seeks to re-agitate issues that he asserts that he raised at various times during the protracted course of proceedings in this Court.

7. Regrettably, at no time did he demonstrate the capacity to comply with court directions, file appropriately prepared affidavit material that comprised relevant and admissible evidence. As a consequence the matter proceeded on an “undefended basis” although the husband was present and was offered the opportunity to cross examine the wife which he declined.

Discussion

1. The onus is on the husband to establish a proper basis for stay of the orders made on 1 December 2017. As best can be determined, his complaints as to the judgment are referred to above and have been considered. It appears that there is no proper basis for stay able to be identified, save for his oral submission that it is his home and the wife is entitled to nothing out of it. This submission assertion is made notwithstanding the history of the relationship identified in the reasons for judgment.

2. The wife is entitled to the benefit of her judgment and to presume that it is correct. Such would entitle her to occupy the home and deal with it as she sees fit by either lease or sale. The husband has occupied the home for some years to her exclusion since separation. The wife remains on the title to the home.

3. Perhaps when the husband is properly advised something clearer may surface to more explicitly explain the basis of his appeal.

4. The fact that the husband has filed the appeal does not of itself entitle him to a stay of the orders.

5. It is for him to assert a proper basis for a stay to be granted.

6. It is difficult to determine the bona fides of the appeal.

7. His appeal grounds set out above are inelegantly framed but seem to focus on procedural unfairness, denial of natural justice and issues as to the valuation evidence of his Country M property.

8. Consideration should ultimately be given to the question of the appeal being rendered nugatory if the orders are implemented. He seeks to retain the property; the wife under the judgment is entitled to it subject to a small payment to the husband and the refinancing of the mortgage. If it is transferred to the wife she may sell or otherwise encumber the property with such actions in whole or in part rendering the appeal nugatory.  She has had to live in rented accommodation since separation in July 2013 with the husband in the home to her exclusion.

9. The husband’s appeal to the Full Court may not be resolved for more than 12 months on present indications. There appears no basis for expedition.

10. Notwithstanding the poorly prepared appeal and the prolix and largely irrelevant evidence adduced in support of the stay, it is considered appropriate that a stay be granted on terms pending determination of the appeal that provide for the wife to have sole use and occupation of the home and be responsible for outgoings including insurances and mortgage payments pending disposition of the Appeal and that she be restrained from selling or further encumbering the property pending further order or disposition of the appeal.

11. To give effect to the conditions of stay it is appropriate that orders be made to secure vacant possession as sought by her in her response to the husband’s Application in a Case, such orders to provide to the husband a short period within which to provide vacant possession, in default a warrant for possession to issue.

12. Orders will be made accordingly.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 February 2018.

Associate: 

Date:  9 February 2018