Ryder & Brooks (No 2)
[2024] FedCFamC2F 708
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ryder & Brooks (No 2) [2024] FedCFamC2F 708
File number(s): PAC 883 of 2023 Judgment of: JUDGE STREET Date of judgment: 31 May 2024 Catchwords: FAMILY LAW – stay application for stay of final parenting and property orders pending appeal –s61DB should not have been repealed - requirements for reconsideration of final parenting orders not satisfied -application for stay refused - costs Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)
Cases cited: Aldridge & Keaton [2009] FamCAFC 106
Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685
Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013
Creighton & Creighton (No 5) [2023] FedCFamC1F 424
Daily & Daily (No 4) [2024] FedCFamC1F 149
Friscioni & Friscioni [2009] FamCAFC 43
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716
Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598
House v The King (1936) 55 CLR 499
Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681
JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329
Lao & Zeng [2021] FedCFamC1A 17
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220
Tyrell & Tyrell (No 2) [2022] FedCFamC2F 1466
Division: Division 2 Family Law Number of paragraphs: 84 Date of hearing: 31 May 2024 Place: Sydney Counsel for the Applicant: Mr J Bennett Solicitor for the Applicant: Coleman Greig Lawyers Solicitor for the Respondent: Mr L Dickson of Hills Family Law Centre ORDERS
PAC 883 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RYDER
Applicant
AND: MR BROOKS
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
31 MAY 2024
AMENDED UNDER SLIP RULE 10.13(1)(E)
THE COURT ORDERS THAT:
1.The application in a proceeding filed 29 May 2024 is dismissed.
2.The respondent pay the applicant’s costs of the proceedings including the above application in a proceeding dismissed fixed in the amount of $78,000 within 28 days.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
In these proceedings, this Court pronounced final parenting and property orders on 24 April 2024. A notice of appeal has been filed by the respondent father (“the father”) on 22 May 2024. The Court, when it pronounced its orders, identified a timeframe for the making of an application for costs. The Court received an application for costs filed on behalf of the applicant mother (“the mother”) on 8 May 2024, supported by an affidavit by the mother. On 29 May 2024, seven days after the filing of the notice of appeal, an application in a proceeding was filed by the father which sought a stay, to revisit the parenting orders, and reinstate orders that had been made by a Registrar on 1 March 2023 and 13 July 2023, and sought that the Court defer determination of costs, and, otherwise, opposing the costs application.
The affidavit filed by the father in support of that application was filed on 29 May 2024, notwithstanding order 1 made on 10 May 2024, that required it to be filed on or before 24 May 2024. The Court raised with the parties that it proposed to hear, concurrently, the two applications, and that it would hear first from the solicitor for the father, on stay issues and costs, and whether the Court should determine the same, and then hear from counsel for the mother, and then hear from the solicitor for the father, in reply. Both of the parties’ representatives agreed to that regime. That was an appropriate regime, taking into account s 190 of the Federal Circuit and Family Court Australia Act 2021 (Cth) in respect of the overarching purpose and being quick and expensive and efficient in the disposition of proceedings, as well as taking into account, the principles in s 43 of the Family Law Act 1975 (Cth) (“the Act”), and the principles insofar as applicable, in s 60B and s 69ZN.
The affidavit of the father dated 29 May 2024, contended that since the making of the orders on 24 April 2024 there had been an adverse impact negatively affecting the children, because of alleged exercise by mother of her rights in respect of the order made for sole parental responsibility. Reference was made to when a child would be attending preschool, as well as steps taken in relation to occupational therapy for one of the two children. The father made reference to interim orders made by consent by a Registrar on 13 July 2023, identifying orders to be reinstated including the schooling arrangements. The father then made reference to the property case and the former matrimonial home, and the orders made in relation to a payment to the father and suggested that there may be a difficulty for the mother if refinancing takes place, and if an appellate court, ultimately, determines some further amount should be provided to the father. The affidavit made reference to an assertion of significant contributions that were made to the property pool, including $92,550.00 from his parents and uncle, and that a property adjustment had been made without reference to the same.
The affidavit of the father dated 29 May 2024 asserted a difficulty in relation to potential refinancing by the wife if required to pay some further amount and made reference to the value of the property potentially increasing and that the orders would not give him the benefit of that increase, and that there would be an unfair windfall. The father then made reference to four items in respect of which the Court provided an opportunity for them to be collected by the father. The period involved was 14 days. The father’s affidavit fails, entirely, to identify what it is the father did to comply with the order 37 made on 24 April 2024, to attend to uplift those items into his possession. The father asserts that there was significant prejudice to himself if those items were disposed of pending the appeal.
There was then an assertion in relation to the possession of various other items that are allegedly owned by the company. The evidence given by the father was that he treated the property of the company as if it was his own property, and to the extent that there were other items that were the subject of some questions, those questions were directed to the stepfather, and no questions in cross-examination were put concerning the same, to the mother, and the evidence of the stepfather cannot constitute admissions relevant to the existence, location, or ownership of those items which were not the subject of identification, or the subject for cross-examination of the mother. The Court would add also, in relation to the contribution argument, that nowhere in the submissions, oral or written, by the father, or in his affidavit evidence or oral evidence, is there an assertion of a contribution in the amount of $92,550. The affidavit of the father on 29 May 2024 then makes reference to the cost orders that have been sought, and seeks a stay of the proceedings, and no determination of the cost order until the determination of the appeal.
The father identified what he might seek in respect of schooling orders being reinstated in accordance with the interim orders made by consent on 13 July 2023. There was then an assertion of a need for a substantive stay in respect of the property interests of J Pty Ltd, which the Court has identified, was treated as if it was property of the father, and which the Court takes as being a reference back to the items in respect of which there was no cross-examination of the mother as to existence, location, ownership or value other than in respect of the items that were the subject of the orders made by the Court on 24 April 2024. The father’s affidavit asserts that it is necessary to preserve the status quo, pending the appeal.
The mother's affidavit dated 8 May 2024 that was filed consistent with the Court Orders, on the issue of costs, identified the background to the proceedings, and the procedural history, and, in particular, the maintenance of a position by the father that the property should, effectively, be divided 50/50 after discharging alleged debts, and the father retaining a business which the Court found has a gross annual return in the order of $1.2 million.
The affidavit of the mother dated 8 May 2024 identified steps in respect of the response to the application by the mother, and referred to the orders that she was seeking, and there was a summary of a history of correspondence and offers in reference to the mother's offer that the property pool be divided 70 per cent to her and 30 per cent to the father, the father retaining his company. That offer was not accepted and the response apparent on behalf of the father maintained a position of a 50 per cent split of the property pool with him keeping the company.
The affidavit of the mother also identified that she incurred legal costs in a significant amount of $173,751, as well as the payment of disbursements in an amount of $48,924. The affidavit also identified that the mother incurred legal fees between 10 February 2024 and 24 April 2024, amounting to $87,008.35 and disbursements in the sum of $22,180 for counsel's fees. The affidavit further identified that there were further work not yet billed in the sum of $8,547, and an amount of $7,141 that is outstanding.
The primary position advanced by the mother was that she asked for an indemnity costs order, and also made reference to an amount of $54,594.18, referring to it representing 50 per cent of the cost and disbursements from 10 January 2024 to 24 April 2024. In the alternative, the mother sought costs on a party-party basis in accordance with the schedule, and also foreshadowing her seeking of costs in respect of the costs application. The mother’s affidavit dated 8 May 2024 identified her current financial circumstances, being ones where she is receiving $695.00 per week, she needs to discharge the mortgage on the Suburb H property, pay the father the sum of $641,548, and that she is not in receipt of child support payments from the father.
The mother makes reference in her affidavit dated 8 May 2024, that the father is employed by his company that he has been conducting for a substantial period of time, and the Court found that he was able to generate an income in the sum of $120,000 a year from that company, and that he currently lives between his parents and his partner's home. The affidavit also identified the father having a tenancy arrangement with his uncle in relation to a property to be acquired, and that the rental has been deferred pending the determination of the family law proceedings, and it is the father’s intention to reside in the rental home when the children are in his care.
SUBMISSIONS
Mr Dickson on behalf of the father, provided the Court with submissions on costs, dated 31 May 2024. Those submissions advanced that it was necessary to grant the stay and reinstate the interim consent parenting order, relevantly order 2 made on 1 March 2023 and orders 13 and 14 made on 13 July 2023, that have been made by the Registrar, in order to maintain their status quo pending the appeal.
The submissions by Mr Dickson advanced the proposition that the appeal may be rendered irrelevant if a stay is not granted, and reference was made to an alleged prejudice in relation to the sole parental responsibility order, the potential impact on the father of the exercise of that parental responsibility by the mother, and asserting that there is a real risk in relation to the property the subject of the dispute will be disposed of by the mother, and the contention that the mother did not comply with order 37 of the orders made by the Court on 24 April 2024, raised an alleged serious question as to whether the mother can refinance the property a second time if the father is successful on appeal, and sought the reinstatement of shared parental responsibility pursuant to the interim consent orders made on 1 March 2023, and make reference to the recommendations of the single expert, Dr NN and Mr MM, as well as alleged concern in respect of the alleged property of the company being unprotected, and may be able to be disposed of.
It was submitted by Mr Dickson that the balance of convenience favours a stay, and that there is no real prejudice to either party if a stay is granted. Mr Dickson further submitted that the exercise of sole parental responsibility by the mother will reduce the father’s time spent with the children, and raised the issue of refinancing by the mother if stay is not granted, and the alleged risk of disposition of property, unfairly rendering the father’s appeal in relation to those items irrelevant, and contending that the order for costs will impair the ability for the father to pursue his appeal. The written submissions of the father then turned to the issue of costs, and contended that they should be deferred until the outcome of the appeal, or reserved, and further contended that the requirements for s 117(1) and (2A) of the Act were not made out, and taking issue with the success of the applicant and seeking to re-agitate, as if it was a second bite, an add back amount in relation to costs.
Mr Dickson orally identified the orders that he contended should be stayed, or made by this Court, so as, in essence, to reinstate in the interim parenting consent orders, by the Registrar, and to defer compliance with the orders in respect of the property alteration of interests. Mr Dickson submitted that there was an impact on the children because of the exercise of sole parental responsibility by the mother. Mr Dickson made reference to the father's day care evidence, and also contended that it would impact on the relationship with the paternal grandmother, the time the children spent with the father, and that the older child, in relation to occupational therapy, was the subject of the mother's exercise of her sole parental responsibility, altering the times that he would see the occupational therapist. It was contended these were significant changes that warranted the reinstating of the Registrar's interim consent orders, to maintain the status quo.
Reference was also made to a schooling issue in relation to the exercise of the mother's sole parental responsibility, which it was contended, jeopardised the schooling arrangements that have been in place as a result of the Registrar's interim consent order made on 13 July 2023. It was submitted next by Mr Dickson, in relation to the property, that there was a need for preservation of the property that belonged to the company, J Pty Ltd, and that the items that belonged to the company would no longer be protected and might be disposed of. It was suggested by Mr Dickson that it should be inferred that the property existed because of the interlocutory order that had been in place concerning items beyond those that were the subject of the orders made by this Court, which also gave the father a fixed period opportunity to collect the same.
In relation to the transfer of the property and the raising of funds by the mother, it was described as the hypothetical need, potentially for sale, if the mother was unable to refinance and that this justified preserving the status quo.
In relation to costs as identified, Mr Dickson said that they should be dealt with after the appeal. Mr Dickson made reference to the contention of the mother not complying with order 37 made on 24 April 2024, and sought to address the negotiation offer put into evidence by the mother, by referring to the property pool that was contended to exist by the mother at that time, as against what the Court ultimately found. Mr Dickson also made reference to the add back amount with the contention that the mother had already been paid.
In relation to the strength of the appeal, Mr Dickson maintained that he had a case of significance in relation to parental responsibility, because of the mother having identified, in answer to a question in cross-examination, that it worked well and by reason of the reference to the experts. There was then reference to the issue of family violence and an alleged lack of merit in contentions advanced relating to the father not having a vehicle.
The evidence of the father was, in fact, that the company had two vehicles and the questions he was asked identified that he failed to consider providing one of those vehicles to the mother, at a time when he had taken steps to facilitate the repossession of the vehicle that she was using, without, in the Court's findings, taking proper steps to ensure that the vehicle was not repossessed, and did so as part of the financial controlling behaviour that constituted family violence by the father. This occurred in the context of a Court order requiring the father to use his best endeavours to maintain the lease of that vehicle by his company. There was financially controlling conduct that the father engaged in by trying to force the sale of the Suburb H property, rather than to permit the mother to retain the same, quite apart from the family violence involved in the withholding of the children by the father.
The third category that was referred to were the property orders and the potential alteration that an appellate Court might impose. On the issue of the best interest of the children, Mr Dickson submitted that their best interests were returning to the regime that had been in place previously.
In respect of costs, Mr Dickson sought to address the same globally. There was an identification that the disbursement costs of counsel were equivalent to the disbursement costs of counsel for the father. There was no argument identified as to why the disbursements, in respect of counsel fees, were unreasonable. Nothing was advanced as to why two-thirds of the legal fees being sought for the confined period would not be consistent with the potential outcome of a party-party order, if it was the subject of taxation. The Court expressly raised the possibility of making an order in respect of the disbursements in the sum of $22,000, and legal fees in the sum of $55,000.
Mr Bennett also helpfully provided the Court with written submissions, in addition to addressing the authorities. Mr Bennett maintained that this was a case where the mother had been substantially successful, and the father was not. Mr Bennett also made reference to the negotiations.
LEGAL PRINCIPLES
In relation to the application for a stay under r 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court has taken into account the principles that were helpfully summarised by the learned Burman J in Daily & Daily (No 4) [2024] FedCFamC1F 149 at [22] – [24] which is as follows:
22.Pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules”), the filing of a Notice of Appeal does not in and of itself stay the operation of an order. The Family Law Rules provide as follows:
13.12Stay
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3)An application for a stay must:
a.be filed in the registry in which the order under appeal was made; and
b.be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable.
23. The making of an order for a stay “is wholly discretionary and the circumstances that would justify an order for a stay depend upon the circumstances of each case” (see Friscioni & Friscioni [2009] FamCAFC 43 at [54].
24. In Aldridge & Keaton [2009] FamCAFC 106 the following is set out:
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] HCA 63; (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] HCA 13; (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] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (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.
The Court has also taken into account the observation made by the learned Johns J in relation to stay in Creighton & Creighton (No 5) [2023] FedCFamC1F 424 at [18]-[19]as follows:
(18) The principles relating to the granting of a stay pending an appeal are well-known and are conveniently set out by the Full Court in the decision of Aldridge v Keaton ... The discretion to stay the operation of orders should only be exercised where circumstances exist which justify a departure from the ordinary rule that a successful litigant is entitled to the fruits of her or her litigation, pending the determination of any appeal.
(19) Circumstances that might justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory, or where there is a real risk that it will not be possible for a successful appellant to be restored to his or her former position if the orders are executed. In determining that question, the Court should consider the prospects of the appeal and where the balance of convenience lies between the parties.
The Court has also taken into account the helpful summary of the principles in the judgment of Davis J in Hotchkiss & Marek (No 2) [2021] FedCFamC2Fam 598 at [40]- [43], which identified the importance of the paramountcy of the best interests of the children, as well as the factors identified in Aldridge & Keaton [2009] FamCAFC 106.
FINDINGS AND CONCLUSIONS
Turning to the criteria identified in Aldridge & Keaton [2009] FamCAFC 106, the onus to establish a stay or a basis for the stay is on the applicant. In this case, the father has failed to establish a proper basis for the stay and has failed to discharge the onus that there is a need for the stay. In substance, the father's submissions reflect an attempt to re-agitate issues that were determined in the final judgment of this Court. A stay is not necessary to prevent the appeal being rendered nugatory and a stay is not necessary to maintain the status quo.
Mr Dixon conceded in relation to parenting, that the Court at the time of decision was required under s 61DB, now repealed, to disregard the allocation of parental responsibility in the earlier interim parenting orders, but contended that the factual matrix in which they existed was of particular significance. The circumstances in which the interim allocation of parental responsibility was obtained in this case, being controlling behaviour by the father at the time of obtaining interim consent orders for return of the children, whilst still retaining the children, is a good reason why that provision was sound and should not have been repealed This Court identified the factual matrix in relation to which those consent orders were obtained, which were circumstances that do not reflect well on the father. Further, in relation to parenting, the Court did not accept that it was functioning well, and found that there was family violence that rebutted the presumption. The re-agitation by the father of a desire for joint parenting rises no higher than seeking to re-agitate the subject matter of the adverse determination by this Court. The exercise by the mother of the powers given to her pursuant to the orders made on 24 April 2024 by the Court, do not identify any proper basis to justify a stay or to demonstrate that a stay is in the best interests of the children. The Court does not accept that there has been a material adverse change or detrimental effect in relation to the mother’s exercise of sole parental responsibility.
The Court remains satisfied that the orders made on 24 April 2024 by this Court reflect the paramount consideration of the best interests of the children. The alleged changed circumstances unanswered by the mother due to later service of the material as to an adverse impact are hollow and without substance. The contention in respect of a need for a stay in respect of property of the company that was not the subject of any cross-examination of the mother as explained above. The existence, location, ownership or value of the other alleged items was not proved by the father other than the items in respect of which the Court gave the father a fixed period opportunity to collect the same.
The existence, title, location and value of all other alleged items was not agitated in a meaningful way by the father. There is no substance in the contention that the corporate entity, that he has treated as his own, is in some way disadvantaged by the items that have been the subject of the injunction being dissolved. No such disadvantage was proved by the father. No existence, title, location, or value of those items was proved by the father. The Court identified the likely disputes that would be created in circumstances where there was no proper agitation, identifying the existence, title, location and value of that property with the mother, if the Court were to make orders beyond the property that was the subject of identification in the orders of the Court. The Court does not accept the proposition that the mother failed to comply with order 37.
So far as the onus relates to the property orders, the contention that the property might have to be sold is not a real prejudice, and the proposition of the appeal being rendered nugatory was entirely hollow, as was the proposition of some disadvantage because the mother might have to refinance the property. The alleged add-back double payment was hollow given and without substance given the limited period the subject of the costs orders asked for by the mother. The Court does not accept that the father has discharged that first onus step in order to seek a stay. The Court has also taken into account that the mother has obtained a judgment in her favour and is entitled to the benefit of that judgment. The Court gave a reasoned judgment, and the mother has obtained the benefit of parenting and property orders and is entitled to presume that the judgment is correct.
The mere filing of an appeal is insufficient to demonstrate that a stay must be granted or that the applicant's appeal is bona fides. The broader-agitating of the same grounds by the father on which he lost before this Court, does raise a question as to his bona fides in respect of the appeal.
It is appropriate, perhaps, to turn back to some of the arguments being advanced. The assertion of an amount in the written submissions of $92,550 and in ground 22 of the notice of appeal that there was a contribution not taken into account by the Court, was not in that amount the subject of any written submission supporting an alleged contribution amount of $92,550, any oral submission supporting an amount of $92,550, or any evidence led by the father in respect of an amount of $92,550. This argument reveals no substantial merit.
The Court turns generally to are the grounds in the notice of appeal, but it is not necessary for this Court to determine the grounds, nor is it appropriate to do so. However, ground 1 of the father’s grounds of appeal is nothing more than a re-agitation of the unsuccessful application for equal parenting responsibility. This ground lacks apparent merit.
Ground 2 of the father’s appeal, is a disagreement with the adverse finding and fails to take into account the evidence that was given by the expert that the existence of family violence, including gaslighting and financially controlling behaviour, would impact on his recommendation. This ground lacks apparent merit.
In relation to ground 3 of the father’s appeal, the interim orders are the subject of a statutory provision, as identified by Mr Dickson, that they are to be disregarded. The factual matrix is not what is sought to be reinstated. This rises no higher than a re-agitation of the father’s unsuccessful contentions. This ground lacks apparent merit.
Ground 4 of the father’s appeal seeks to agitate the findings made in relation to the progression of time and lacks apparent merit.
Ground 5 of the father’s appeal also seeks to re-agitate the progression of time without identifying some alleged error and lacks merit.
Ground 6 of the father’s appeal alleges an error by interfering with the orders that have been made by the registrar, which again seems to be a re-agitation of the subject matter of the proceedings before the Court. This ground lacks merit.
Ground 7 of the father’s appeal is a bare assertion of disagreement with the orders made by the Court and contending, without detail, a lack of adequate reasons for that determination. The Court gave detailed reasons for the determination. This ground lacks merit.
Ground 8 of the father’s appeal, reflects the substance of ground 7, asserting that there was no proper evidence to support the finding. The Court referred to the contributions and made findings that were open to it. This ground lacks merit.
Ground 9 of the father’s appeal alleges an error in relation to the stepfather's contribution of a sum of $74,000 and alleges there is no evidence to support that finding, notwithstanding the amount of $74,000 was squarely identified in the step-father’s affidavit dated 6 March 2024. This ground lacks apparent merit.
Ground 10 of the father’s appeal refers to the cessation of mortgage payments and lease payments and seeks to agitate the adverse findings made by this Court against the father that he used the same as financially controlling behaviour. This ground lacks merit.
Ground 11 of the father’s appeal seeks to agitate part of that financially controlling behaviour referable to the two motor vehicles that the father had through his business and not turning his mind to whether the mother might need one of those in circumstances where he knew the vehicle was to be repossessed because of his failure to take steps consistent with an order made by this Court that required him, to the extent that the company had the ability to do so, to continue to meet the same. The respondent's evidence fell well short of demonstrating an inability to continue to meet those vehicle repayments. This ground lacks merit.
Ground 12 of the father’s appeal makes complaint in respect of other items not the subject of an order for return to the applicant and his company. The company is not a party to the proceedings. The four items upon which the mother was cross examined are the subject of order 37 to which the Court has identified. There was no cross-examination of the mother by the father's counsel in respect of all other alleged items that were not the subject of an order for return. There was no acceptance of the identification, the existence, location or value of the alleged property items by the mother. There was some cross-examination, oddly, directed towards the stepfather on some of those items, which goes nowhere as he was not in a position to make admissions in respect of the mother. Again, ground 12 appears to lack merit.
Ground 13 of the father’s appeal refers to the consequential dissolving of the interim order in respect to the non- identified items. There was no acceptance by the mother as to existence, location, ownership or value of those items and no proper basis to make findings by this Court in respect of their existence and location or value. The Court identified the dispute any such order would create. The alleged ownership by the company, which was not a party, was not proved. The extension of the controversy by any such continued interim order is also contrary to s 39 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). This ground lacks merit.
Ground 14 of the father’s appeal, seeks to re-agitate the same issue and lacks merit.
Ground 15 of the father’s appeal is an odd ground, given that the value of the company was accepted by the parties in the Court as being zero. However, the company has a substantial gross turnover of $1.2 million, which was clearly a financial resource, and was submitted by the mother to be a substantial financial resource, which was taken into account by the Court. This ground lacks merit.
Ground 16 of the father’s appeal seeks to make an assertion referable to the value of the shares that had no value and suggested that the shares could not be treated as a financial resource. There was no reference by the Court to the shares themselves being a financial resource. This ground lacks merit.
Ground 17 of the father’s appeal takes issue with the finding by the Court that was made as to the capacity to draw a salary of $120,000 per year, which was made in light of admissions made by the father in respect of the records of the company. This ground lacks merit.
Ground 18 of the father’s appeal alleges a problem by failing to take into account the residual debt of the repossessed motor vehicle, which was the subject of property interest by the company, which was not a party to the proceedings and, on the face of it, travels nowhere. This ground lacks merit.
Ground 19 of the father’s appeal referred to an alleged error in the treating of the $68,000 which was the subject of an agreed add-back. This ground lacks merit.
Ground 20 of the father’s appeal seeks to re-agitate the submission that was addressed by the Court in terms of the alleged benefit of the mother and her extended family being in the premises that had been the family home. The mother’s parents substantially paid out the paternal uncle for the initial acquisition of this home. This ground lacks merit.
Ground 21 of the father’s appeal asserts a failure to give any weight to his uncle's contribution, which does not reflect the reasoning of the Court. This ground lacks merit
Ground 22 of the father’s appeal makes reference to the sum of $92,550 which, as the Court has identified, is an amount was not referred to in any oral submissions, any evidence by a witness, and to the extent that there was evidence about contributions by the father’s uncle and the parents of the father, they were identified in the evidence, and they were taken into account. This ground lacks merit.
The analysis of the above grounds, does suggest that there is a want of bona fides by the father in seeking, re-agitate almost the whole substance of unsuccessful matters advanced by the father in this Court. The lack of substantial merit in any of the grounds supports a want of bona fides by the father in the appeal. The grounds of appeal do not identify sufficient merit to warrant any stay. The Court accepts that grounds can be changed but that does not assist in identifying a basis for a stay. Weighing the balance of convenience, it weighs heavily in favour of the mother against granting any stay in the present case. There is no real adverse impact upon the father in respect of meaningful time that flows from the orders the Court has made on 24 April 2024 in relation to parental responsibility and the mother making decisions in the best interest of the children and the progression of time. There is no status quo that requires preservation in relation to the alteration of property interests. The father is in substance seeking to re-agitate his unsuccessful contention of a 50/50 property split, while he still retains a substantial financial resource and has a higher earning capacity. Weighing the competing arguments of the parties, the balance lies heavily in favour of the mother to refuse a stay in respect of both the parenting issues and the property issues.
In relation to the proposition that there might be an appeal that would be rendered nugatory, that proposition has no application in the present case. The grounds of the father’s appeal do not support that contention to the extent it was advanced by Mr Dickson. In relation to the preliminary assessment of the strength of the proposed appeal, as the Court has just identified, while it is not for this Court to determine its arguability. It is not a notice of appeal that impresses the Court as having a significant weight, substantial merit or strong prospects. The Court does not accept that the orders made for a fixed payment create a windfall and does not accept that there is property of the company that requires any preservation order. The only specific items properly agitated with the mother in the course of the case have been the subject of a fixed period opportunity to collect by the father. The continuation of an interim injunction not the subject of proper evidence to support existence, location, ownership or value of the same would be productive of ongoing disputes contrary to s 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The desirability of limiting frequency of changes in the children’s living arrangements weighs in favour of the orders made by the Court on 24 April 2024 to remain in place and does not support returning to an arrangement that the father obtained at a point in time where he extracted consent from the mother whilst still withholding the children. This Court explained this adverse setting in respect of the father’s endeavour to try and continue to maintain orders that were obtained in circumstances where he was engaged in family violence and the children had not been returned to the mother. The father gave evidence that he understood withholding the children was a form of family violence and understood that withholding the children until he had consent interim orders in relation to the children which deal with their return was controlling behaviour. The best interests of the children do not support a return to the interim consent orders obtained in these circumstances and the pursuit of the same by the father further undermines the bona fides of the father in the appeal.
In relation to the period of time in which the appeal can be heard, the Federal Circuit and Family Court is an extremely efficient and well-run appellate Court and in respect of matters that justify, a prompt hearing can be heard expeditiously. There is no apparent basis for expedition on the material before this Court in respect to the notice of appeal. There is no reason why the appeal, whether heard this year or next year, has an impact in respect of the position of the parties that would warrant a stay.
In relation to the best interests of the children, that is reflected in the final parenting orders and relevantly also in the final property orders. That paramount consideration weighs heavily in favour of there being no stay and the Court does not accept that there is any recent change that adversely impacts on the children. In relation to s65DAA there has been no significant change of circumstance since the final parenting orders were made and taking into account the detailed reasons and findings made by this Court based on its assessment of the evidence adduced, the Court is not satisfied that it is in the best interest of the children to reconsider the final parenting orders. There is no new material available of a kind to warrant reconsideration. The Court would at this stage be unlikely to make a new parenting order and there would be a detriment to the children in losing the certainty and finality of the existing orders, if there was a reconsideration.
That paramount consideration of the children in the present case, given the apparent attempted broad re-agitation of the dispute by the father in an appeal that lacks apparent sufficient merit as to support a want of bona fides is one that weighs in favour of the refusal of the stay. That conclusion is also supported in respect of sole parenting responsibility by the now endeavoured dispute without apparent merit sought to be raised by the applicant father in respect of decision‑making steps taken by the mother in relation to the children.
The agitation and dispute by the father of the immaterial matters that he identified in his evidence reinforces the appropriateness of it being in the best interests of the children that the orders pronounced by this Court on 24 April 2024, remain in place.
It is also a position, where permitting the children to continue to reside with the mother where they have been residing, so far as the property case is concerned, is one in which it also accords with the best interests of the children to decline to grant any stay. Accordingly, for these reasons, the Court declines to grant a stay or to engage in any reconsideration of the final parenting orders.
COSTS
Turning to the principles in respect of s 117 of the Act, the Court takes into account the principles as summarised by the learned Ainslie - Wallace, Ryan and Austin JJ in Lao & Zeng [2021] FedCFamC1A 17 at [39]-[42], and also helpfully summarised by the learned Judge Neville , who is shortly to retire from this Court, and will be a great loss to this Court, in Tyrell & Tyrell (No 2) [2022] FedCFamC2F 1466 at [18]-[22]. The reasons of the learned Judge Neville identify the limited circumstances in which it would be appropriate to make an indemnity costs order, and the Court is not satisfied that there is any circumstance of the kind falling within the categories identified by the learned Judge Neville that would warrant an indemnity order in respect of costs.
The costs order, however, sought by the mother on a party-party basis, relates to a limited period and the mother has identified the legal fees and the counsel's fees in respect of which the order is sought.
Section 117 of the Act relevantly provides:
Costs
(1) Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act must bear the party's own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The Court must determine whether it is of the opinion that there are circumstances that justify the Court in making a costs order rather than each party bearing their own costs in accordance with s 117(1).
In relation to the considerations that are identified in s 117 (2A)(a), the financial circumstance of the parties must be taken into account and the effect of the orders that have been made by the Court, and the effect upon the financial circumstances of the parties. The mother has a much lower earning capacity than that of the father. The mother is going to have to engage in substantial steps if she is to retain the property in which the children are living. The father, however, continues to have his substantial financial resource, being the company with its approximately $1.2 million gross turnover, currently lives at his parents home and is proposing to move to new leased premises to be provided by his uncle with a deferment of alleged financial obligation until conclusion of proceedings. In relation to the father's earnings, there is a dispute as to whether he makes an earning in the order as found by the Court. However, the Court is satisfied that the father is and has had the capacity to make a substantial drawing in the order of $120,000 a year, if he sought to do so from that business. To the extent that the financial circumstances are taken into account, the mother is in a more difficult position than the father in terms of her income flow and need very shortly to refinance the home if she is to retain the same.
In relation to s 117(2A)(b), there is no grant of legal aid and it has no work to do.
In relation to s 117(2A)(c), in respect of the conduct of the proceedings generally and the conduct of the parties, the Court does take into account that the father has doggedly maintained a 50% property split, notwithstanding his substantial much greater financial resource. That stance was not reasonable.
In relation to s 117(2A)(d) as to whether the proceedings were necessitated by a failure by a party to comply with the previous orders, it was not advanced that such a characterisation should be adopted by the Court. There are, on one view, failures that have been engaged in by the father to comply with the Court's orders made on 24 April 2024 in relation to the meeting of the outgoing lease payments for the vehicle. However, the Court accepts that this is not, of itself, a circumstance in s 117(2A)(d) that would warrant the making of any costs order.
The critical matter in the present case is s 117(2A)(e), whether a party to the proceedings has been wholly unsuccessful in the proceedings. In that regard, it is the case that the mother has, in substance, been wholly successful in her application both in respect of the property matter and the parenting matter. The father has in substance been wholly unsuccessful in the proceeding. That does not mean that there are not differences in respect of the property that was said to exist at the time of initial negotiations or that the orders reflect entirely the form of offers that might have been earlier advanced.
The mother's substantive application was a 70/30 split of property, and the father’s application was a 50/50 split of property. The mother has been substantially wholly successful in respect of the property matter. In the parenting matter, the father was seeking an accelerated time for equal time and also joint parental responsibility for the children, notwithstanding the circumstances to which the Court has referred. The mother has substantially been wholly successful in relation to the parenting proceedings.
The Court is satisfied, as a result of s 117(2A)(e), that this identifies in the present case a significant circumstance that justifies the making of a costs order rather than each party bearing its own costs.
The Court has also taken into account the offers made by the parties. Not unsurprisingly, consistent with what the Court has identified as a dogged position by the father, the father has put no offer above the 50 per cent of the property split that he was advancing in his response.
That unreasonable stance by the father in relation to s 117(2A)(c) and (f) together are circumstances that further enliven the discretion for the making of a costs order in favour of the mother. It reflects a continuation of the same entrenched and unreasonable position by the father which, in circumstances where he was always intending to have the benefit of the continued operation of his company, which is a substantial financial resource, did not reflect a fair and reasonable evaluation of the merits of the competing cases as to an appropriate alteration of property interests.
In relation to s 117(2A)(g), the Court has also taken into account the financially controlling behaviour by the father, which in all the circumstances, the Court considers as a relevant factor, not punitively, but rather in maintaining an unreasonable stance as to appropriate alteration of property interests. In this case, looking at the conduct of the father, he took steps, in essence, to cease paying the mortgage so as to cause the property to be sold. Now the father contends that the appeal might be rendered nugatory because the property might have to be sold. The father’s bona fides is very much in question. But, more than that, the conduct he engaged in by ceasing to make the mortgage payments, in circumstances where the Court does not accept that he lacked financial capacity to do so, were an endeavour to force the mother into a position of having to sell the property rather than being able to continue to keep her family in that home. There was other financially controlling behaviour to which the Court has referred and the unreasonable stance of a 50/50 split is unreasonable financially controlling behaviour that has caused the wife to have to fully litigate her case, thereby incurring unnecessary costs.
In the present case, there was the family violence in relation to the withholding of the children by the father, which it is apparent on the evidence, at the time was intended to be a permanent change of affairs in terms of the living arrangements by the children with the father. To be doggedly pursuing the benefit of the parenting arrangement he obtained when the children were still being withheld by the father is a relevant factor that the Court considers should be taken into account, and has been taken into account, not punitively, but in determining, together with the other matters, whether or not each party should bear its own costs. The entrenched pursuit by the father of maintaining orders as to joint parental responsibility brought about whilst he was still withholding the children, has put the mother to incurring unnecessary costs.
This Court finds that there are circumstances that justify the Court departing from the position in s 117(1). To be clear the Court is of the opinion that the circumstances justify the Court making a costs order in favour of the mother. The Court is satisfied that the proposed costs order is just.
The Court is of the opinion that those circumstances justify the Court in making an order that the father pay the mother’s costs for the period 10 February 2024 to 24 April 2024 and that it is appropriate and just to make a costs order for the legal costs and disbursements identified in the mother's affidavit dated 8 May 2024. The period involved excludes entirely any alleged consequence of the add-back.
The Court is satisfied that this is appropriate and just, taking into account the above principles in relation to the s 117, the overarching purpose in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the principles in section 43, s 60B and s 69ZN of the Act, for the Court to fix the amount of those costs. This is also consistent with s 139 that requires the Court to bring to an end the dispute between the parties.
The Court is satisfied that the disbursements identified in the amount of $22,000 are reasonable and just for the period between 10 February 2024 and 24 April 2024 and that an amount of $22,000 should be allowed as counsel's fees disbursements. The Court is satisfied that the mother did incur legal fees in the sum of $87,008.35 in the period between 10 February 2024 and 24 April 2024, and consistent with the position accepted by Mr Dickson in terms of a global approach, the Court takes the view that on taxation, an amount in the order of two thirds of that amount would reflect the appropriate party-party costs. The Court is satisfied that an amount for party-party legal costs for the said period in the amount of $55,000 are reasonable and just and that an amount of $55,000 should be allowed for party-party legal costs. Accordingly, the Court assesses the reasonable recoverable costs of the mother for the said period should be fixed in the sum of $77,000 and that it is just to order the father to pay the mother under s 117 costs of the proceedings fixed in the amount of $77,000.
There was a further amount sought in respect of this unsuccessful application brought by the father for the stay, and an amount of $1000 is sought. For the reasons already given, the Court is of the view that the stay application was without merit, and the mother has wholly succeeded on that stay application and that the father has been wholly unsuccessful. Taking into account the other factors which the Court has referred to under s 117(2A), the Court is also of the opinion that the circumstances justify the Court in making a costs order in respect of the stay application fixed in the sum of $1,000 and that such an order is just. This makes a total costs order of $78,000 to be paid by the father to the mother. There is a property alteration of interest to occur shortly and the Court is satisfied that 28 day to pay is in all the circumstances sufficient and that such an order is just.
For these reasons, the Court makes the above orders.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 6 June 2024
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