Rosemond and Rosemond - [2016] FamCAFC 221

FAMILY COURT OF AUSTRALIA

ROSEMOND & ROSEMOND

[2016] FamCAFC 221

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the wife seeks expedition of her application for leave to appeal and appeal against interim financial orders – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth): s 94(2D)(j)
Family Law Rules 2004 (Cth): r 12.10A

APPLICANT:

Ms Rosemond

RESPONDENT:

Mr Rosemond

FILE NUMBER:

SYC

8075

2014

APPEAL NUMBER:

150

2016

DATE DELIVERED:

21 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

21 October 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 August 2016

LOWER COURT MNC:

[2016] FamCA 877

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

York Law

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

That the Application in an Appeal filed on 5 September 2016 be dismissed.
Order 7 of the orders dated 28 September 2016 is varied by deleting the words “9 December 2016” and inserting the words “2 December 2016”.
Order 8 of the orders dated 28 September 2016 is varied by deleting the words “3 February 2017” and inserting the words “16 December 2016”.
It is noted the parties are amenable that the appeal may be called on for hearing on short notice.
Costs of this application will be costs in the appeal.

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 Rosemond & Rosemond 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 150 of 2016
File Number: SYC 8075 of 2014

Ms Rosemond

Applicant

And

Mr Rosemond

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Mr Rosemond (“the husband”) and Ms Rosemond (“the wife”) are engaged in proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) for property settlement and spousal maintenance.
By Application in an Appeal filed on 5 September 2016 the wife seeks an expedited hearing of her application for leave to appeal and, if leave is given, her appeal against certain interim financial orders made by Loughnan J on 29 August 2016, in accordance with her Notice of Appeal filed on 5 September 2016. Order 1 of those orders is the subject of a stay on the terms contained in his Honour’s order of 8 September 2016. It assumes some importance in these reasons that the orders which are the subject of the application for leave to appeal are interlocutory, albeit with substantive effect.
The order under appeal provides for the husband and wife, as directors of a trustee company, to do all things necessary to enable the Rosemond Family Trust (“the trust”) to make an interest free loan to the husband in the sum of $250,000 pending a final property settlement. This amount was sought by the husband on the basis that he was due to retire earlier this year and foresaw a shortfall in his income and asset position and thus would require funds to pay legal fees and other expenses pending the final hearing.

Relevant background

So as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed in support of this application.
The parties are both 54 years of age. They married in 1986 and separated in late 2013. Their marriage of 27 years produced three now adult children. Since separation the wife has resided in the former matrimonial home with the parties’ adult children.
The parties both have accounting qualifications, albeit the wife has not worked in that industry since 2000. The wife is currently employed part-time in the travel industry. Since 1995 the husband has been employed as a partner in a major firm and derived a substantial income which, on the wife’s case, was as high as $955,000 per annum in some years. It is the husband’s case that he was placed into involuntary retirement by that firm and ceased employment there in September 2016.
Over the course of their marriage, the parties have acquired significant wealth which is held through various corporate entities and family trusts. On the wife’s case, the net pool is in the vicinity of $8.2 million, perhaps with an additional $900,000 in superannuation to which her senior counsel made reference today. The husband contends that the total net property is in the vicinity of $10 million.
On 22 December 2014 the wife commenced these proceedings by way of her Initiating Application seeking property settlement and also for interim spousal maintenance.
On 17 April 2015 the parties entered into consent orders which provided, inter alia, for the husband to pay for the period of one year, all outgoings (including electricity, rates, Foxtel and the like, plus minor repairs on the former matrimonial home), as well as the wife’s private health insurance. In addition, the orders provided for the wife to receive unpaid distributions from the trust totalling $169,489.50, and for the husband to apply his employment based allowance to the parties’ trust and other business entities in the manner prescribed by those orders. Pending, of course, final determination of the property proceedings or further order.
On 14 April 2016 consent orders were made providing for the parties to each receive $445,000 from the trust, with the characterisation of those payments to be determined at the final hearing.
The matter came before the primary judge on 29 August 2016 for interim hearing, following which his Honour delivered ex tempore reasons for judgment and made the orders the subject of the appeal. The orders are subject to his Honour’s orders as to a stay made on 8 September 2016.

Discussion

Section 94(2D)(j) of the Act provides that the Court may make an order to expedite the hearing of an appeal. There is no provision in the Act or the Family Law Rules 2004 (Cth) (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Rules deals with applications for an expedited trial and provides a useful guide to the approach that might be taken in relation to expedition of an appeal. That rule provides that the Court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule which the Court may take into account, and which are also relevant to appeals, will be discussed.
As I move through the relevant provisions, I do so on the basis that an order which granted expedition of this appeal would be to the detriment of other litigants.
Sub-paragraph (a) is concerned with whether the wife has acted reasonably and without delay in the conduct of the case. There is no doubt that in relation to the appeal and this application the wife has moved promptly and done all that is required to prosecute both her appeal, by which I mean her application for leave to appeal and case for expedition. The application of the sub-paragraph weighs in favour of an order for expedition.
Sub-paragraph (b) has already been addressed.
Sub-paragraph (c) concerns prejudice to the respondent husband. He supports the application for expedition.
Sub-paragraph (d) requires consideration of circumstances which would justify this case being given priority to the detriment of other cases. This is a particularly important factor in this application given, as I have said earlier, it involves an appeal in relation to interlocutory orders and in relation to which a basis for leave must be established. In any event, when I say the detriment of other cases, I mean to other cases that have been filed earlier and would be called on for hearing in the ordinary course, but not if this case was expedited. Importantly, it also includes to the detriment of other cases where the orders under appeal are final orders.
Examples of what constitute a relevant circumstance are set out in r 12.10A(4)(a) – (g). On the evidence before me, it cannot be said that any of the examples listed therein apply here. However, that is not the end of the matter because the list of factors contained in the sub‑rule does not purport to be exhaustive.
Put simply, the wife’s position is that if her application for expedition is not granted, then the delays in this Court would mean that her appeal may not be heard for quite some time and, as such, the final hearing of the proceedings at first instance would be delayed. As I said during oral argument, this would simply be an example of the tail wagging the dog. In my view, the issues that the wife seeks to agitate on the leave application are issues that could be better dealt with at a final hearing. For example, the wife’s assertion that the husband has deliberately placed himself in a position where he is unable to meet his tax liabilities.
I interpolate here to reiterate the remarks made by the primary judge at [26]-[27] of the trial reasons concerning the husband’s application for an interim order:
26.It is asserted without complaint that the distributions the husband seeks would be only a fraction of what the wife contends should be his property settlement. There was no complaint about that argument. He, of course seeks a much more significant distribution, but that is not the issue for the purposes of today.
27.What I need to do, as I understand the authorities, is to understand the wife’s claim and be careful not to make a provision which would jeopardise that claim. The husband is assisted in this case because he is only seeking things to which he is legally entitled, so from the point of view of a court having power to change interests in property we do not have the problem that arose in a decision of Medlow and Medlow (2016) FLC 93-692 whereby the Full Court was concerned among other things, that the notional balance of the equity of a property that would be within the wife’s legal entitlement was going to be disbursed to the husband.
It will be recalled that even on the wife’s case the parties have a net property pool valued in excess of $8 million. There is nothing in evidence adduced in these proceedings that suggests the funds advanced to the husband would not be recoverable or that the purpose of the case would be lost if it is not heard in priority to other appeals. As observed by the primary judge at [33] of the trial reasons:
33.It is not submitted that this order threatens the integrity of the settlement of the property that the wife favours, so I do not think I need to dwell on that. There can be adjustments made later. There is a home for preliminary distributions. As [counsel for the husband] said, it is fairly well-trod law that – or implied that moneys applied to legal fees in advance of an argument about s 117, the cost power, would be added back into the pool, or treated as a preliminary distribution. If the parties payments of costs are in a similar sum, then that probably does not matter, but if they are different then that is an issue.
On balance, I am not persuaded that the circumstances upon which the wife relies should give rise to an order for expedition. In my view, this Court has to be more concerned with appellate resources being made available for appeals against final orders rather than interlocutory orders. It is a simple matter of judicial availability.
Finally, it is necessary to consider the grounds of the application for leave to appeal. All that needs to be said at this point is that the wife raises a number of challenges to his Honour’s reasons, including in relation to matters of principle but also the exercise of discretion. It is difficult to see on the grounds as presented that the putative appeal is presented on such compelling grounds that the Court should dislocate other appeals so as to give priority to this application for leave to appeal and the underlying appeal.

Conclusion and costs

Notwithstanding the matters that weigh in favour of expedition the case for this appeal to be given priority over all other appeals awaiting hearing has not been made out. Consequently, the application for expedition should be dismissed.
That said, in exchanges this morning, the parties were content for the directions made by the Appeal Registrar to be tweaked so that the application for leave is ready for hearing on short notice. The point being that appeals do settle, and if this appeal is ready it would be able to be included in an appeal sitting on short notice. With that in mind, I will amend the directions made by the Appeal Registrar so that the summary of argument to be filed by the wife is filed no later than 2 December 2016, and the summary of argument be filed by the husband by 16 December 2016. I will also note, as I indicated, the parties are willing to be called on short notice. Costs will be costs in the appeal.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 October 2016.

Associate:

Date: 4 November 2016