Thompson and Berg (No. 2) - [2016] FamCAFC 49

FAMILY COURT OF AUSTRALIA

THOMPSON & BERG (NO. 2)

[2016] FamCAFC 49

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks an expedited hearing of his appeal against enforcement orders for the settlement of property – Where the husband’s four previous appeals against the original property settlement orders and related enforcement orders were dismissed with costs – Where there are orders in place for the husband to provide vacant possession of the parties’ jointly owned property by 31 March 2016 – Where if the husband’s application for expedition is not granted the appeal would be rendered nugatory – Where the husband’s appeal against the enforcement orders, if successful, would have no effect on his obligations imposed under the original property settlement orders or subsequent enforcement orders which he challenged unsuccessfully – Where the husband did not establish facts which would justify his appeal being given priority to the possible detriment of other cases – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks an order for the provision of transcripts at the Court’s expense – Where the husband made a similar application in his first appeal and the Full Court set out the principles by which such applications are determined – Where the husband failed to establish the matters which the Court must consider in applications of this type – Application dismissed.

Family Law Act 1975 (Cth): s 112AD

Thompson & Berg (2014) FLC 93-589
Thompson & Berg [2016] FamCAFC 20

APPLICANT:

Mr Thompson

RESPONDENT:

Ms Berg

FILE NUMBER:

SYC

3691

2011

APPEAL NUMBER:

2016

DATE DELIVERED:

24 March 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATES:

22 & 24 March 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 March 2016

LOWER COURT MNC:

[2016] FCCA 424

REPRESENTATION

FOR THE APPLICANT:

Mr Thompson in person

FOR THE RESPONDENT:

Ms Berg in person

Orders

The Application in an Appeal filed on 14 March 2016 be dismissed.
The Application in an Appeal filed on 23 March 2016 be dismissed.
The costs of these applications will be the costs in the appeals.
The Court requests that the Eastern Appeals Registrar issue procedural orders and directions for the preparation of appeal books by the husband and such other directions as may be required to enable the appeals to be prepared and ready to proceed in the event that there becomes space available that does not involve the dislocation of appeals.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Berg (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: EA 29 of 2016
File Number: SYC 3691 of 2011

Mr Thompson

Applicant

And

Mr Berg

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 14 March 2016, Mr Thompson (“the husband”) seeks an expedited hearing of his Notice of Appeal filed on 9 March 2016 against orders made in the Federal Circuit Court on 4 March 2016. The husband was sanctioned for his failure to comply with other orders which, in turn, were designed to enforce orders for the settlement of property made as long ago as 26 September 2013. The husband also appeals other enforcement orders made by Judge Kemp at the same time.
That application came before me on 22 March 2016. On that occasion, the husband announced that he also sought to appeal his Honour’s refusal on 18 March 2016 to grant his application to stay the operation of the orders of 4 March 2016. Thus, I adjourned the application filed on 14 March 2016 to today and made directions for the husband to file his appeal against the stay orders and the proposed application for expedition of that appeal.
The husband complied with those directions and in addition to the Application in an Appeal filed on 14 March 2016 I also have before me his Application in an Appeal filed on 23 March 2016. For clarity, the first appeal is EA 29 of 2016 and the appeal filed yesterday is appeal EA 36 of 2016.
These are the fifth and sixth appeals filed by the husband against the 2013 property settlement orders or orders in relation to those orders. Appeals EA 151 of 2013 and EA 18 of 2014 were dismissed with costs on 2 May 2014 (Thompson & Berg (2014) FLC 93-589). Appeals EA 91 of 2015 and EA 144 of 2015 were dismissed with costs on 19 February 2016 (Thompson & Berg [2016] FamCAFC 20).
The 2013 orders provided for the sale of a property owned by the parties in the NSW Highlands and for the discharge of the mortgage and a joint debt secured over the property and for other unsecured debts to be paid from the proceeds of sale.
The parties’ financial circumstances were dire and Judge Walker (who determined the property settlement proceedings) found there was a deficit of liabilities over assets of approximately $50,000. Her Honour was satisfied that neither party had the capacity to retain the NSW Highlands property and as its sale was inevitable, orders were made to that effect. Her Honour stayed the operation of her orders for 28 days to afford procedural fairness to various unsecured creditors who may have been affected by the order for sale. None of these creditors sought to be heard and thus, the order for sale became operative at the expiration of the 28 day period. Otherwise, no stay of the final property orders has ever been given and yet the husband remains in occupation.
Lest it be thought that Ms Berg (“the wife”) sat on her hands and somehow created a reasonable basis for the husband to hope he could ignore the 2013 orders and the orders made by way of enforcement, reference need only be made to what was said in the recent judgment of the Full Court (Thompson & Berg [2016] FamCAFC 20); per Kent J at [68]-[71]:
68.As already noted the final property orders were made on 26 September 2013. At [19] of his Reasons for Judgment delivered in the enforcement application Judge Kemp records the wife’s concerted attempts, commencing soon after the final orders were made, to secure the husband’s cooperation in carrying the final orders, as far as sale of the [NSW Highlands] property was concerned, into effect. The husband’s cooperation was not forthcoming.
69.It bears repeating that the enforcement application was determined in the circumstances that existed at that time. Those circumstances included the husband’s pursuit of his appeals to the Full Court.
70.It was ultimately determined by that Full Court that the husband was “wholly unsuccessful” and that his appeals were “demonstrably without merit” (see [138]), such that the husband was ordered to pay the wife’s costs of and incidental to those appeals.
71.The operative circumstances also included the husband’s unsuccessful application for leave to appeal to the High Court and the husband’s continued opposition thereafter, notwithstanding having exhausted his appeal rights, to the ordered sale of the [NSW Highlands] property. The operative circumstances also included that the wife alone was continuing to meet substantial secured debt commitments with respect to the [NSW Highlands] property even after her permanent move to alternate accommodation on 24 May 2014.
It is against this background that on 6 November 2015 the wife commenced proceedings pursuant to s 112AD of the Family Law Act 1975 (Cth) (“the Act”) (sanctions for failure to comply with orders) and filed an Application in a Case for further orders to give effect to the 2013 orders and, on 9 February 2016, another application pursuant to s 112AD. All applications self-evidently being commenced against the husband.
The husband resisted all of the applications and it is the primary judge’s determination thereof and his refusal to give a complete stay which is the subject matter of these appeals.
In relation to the 112AD proceedings, his Honour’s critical findings and orders were:
In respect of the contravention applications filed 6 November 2015 (“the first contravention application”) and 9 February 2016 (“the second contravention application”); THE COURT FINDS THAT:
(1)The charge the subject of paragraph 11 of the first contravention application is not proved.
(2)The charges the subject of paragraphs 9 & 13 of the first contravention application and paragraphs 7 & 9 of the second contravention application are proved and the husband having contravened orders of this Court the subject of those charges, without reasonable excuse;
THE COURT ORDERS THAT:
(a)By way of penalty, pursuant to ss.112AD(2)(a), 112AD(4) and 112AF of the Family Law Act 1975, and upon compliance with s.112AF(5), the husband be placed on a good behaviour bond without surety and security in the sum of $2,000.00 to operate for a period of 12 months commencing on the date of these orders;
(b)It be a condition of any such bond that the husband comply with the existing orders of this Court made on 26 September 2013, 28 May 2015 and orders 6 and 7 referred to below; and
(c) The husband forthwith enter into a bond, in the usual terms and subject to the conditions referred to above.
(3)The charge the subject of paragraph 11 of the first contravention application is dismissed.
(4)The first contravention application and the second contravention application are, otherwise, dismissed.
In respect of the wife’s application in a case filed 6 November 2015, THE COURT ORDERS THAT:
(5)The wife have vacant possession of the [NSW Highlands] property (as defined in the orders of 26 September 2013), within 21 days of the date of these orders.
(6)The husband vacate the [NSW Highlands] property on, or before the expiration of 21 days of the date of these orders and shall, thereafter, be restrained by injunction from entering upon, or remaining upon or loitering within a 2 kilometre radius of the [NSW Highlands] property.
(7)Contemporaneously with the implementation of order 6 above, the husband shall remove from the [NSW Highlands] property all of his contents and in the event the husband does not remove his contents by that time, all such contents become the property of the wife, who shall be at liberty to dispose of such contents, as she feels fit.
(8)In the event that the husband fails to vacate the [NSW Highlands] property in accordance with order 6 above, proof of which shall be by affidavit signed by the solicitor for the wife, a warrant for possession issue forthwith.
(9)The issue of the wife’s costs being the determination of the quantum of costs referred to in order 3 made on 20 January 2016 and the issue of costs sought in respect of the first contravention application, the second contravention application and her said application in a case filed 6 November 2015 be stood over to 3 May 2016 at 9.15am.
(Original emphasis)
The husband entered into the bond referred to in the orders on 11 March 2016.
On the husband’s application for a stay and to vary the orders made on 4 March 2016, on 18 March 2016, the primary judge extended the date upon which the husband must give vacant possession of the NSW Highlands property to 5.00 pm on 31 March 2016 and for compliance with Orders 6, 7 and 8 of those orders.
Otherwise the restraint on the husband coming closer than two kilometres of the NSW Highlands property was varied and machinery orders were made in relation to any items of personalty left in the property after it is vacated by the husband.
The orders and notations made by the primary judge on 18 March 2016 are set out below:
THE COURT ORDERS THAT:
1.The wife to file in the registry within 2 working days her executed undertaking in terms of that proffered to the Court today as Exhibit 1.
2.Upon the acceptance of the wife’s undertaking as proffered today (and noted below) and in terms of the orders made below, the husband’s application for a stay of the orders made on 4 March 2016 be dismissed.
3.The balance of the husband’s application in a case filed 10 March 2016 is, otherwise, dismissed.
4.That the time for the husband to deliver up vacant possession of the [NSW Highlands] property to the wife be extended from 25 March 2016 (being the date the subject of the orders made on 4 March 2016) to 5.00pm, 31 March 2016.
5.That the time for compliance provided for in orders 6, 7 and 8 of the orders made on 4 March 2016 be extended to 5pm 31 March 2016.
6.That order 6 made on 4 March 2016 be varied by deleting the words ‘within a 2 kilometre’ and by the substitution therefore of the words ‘within a 200 metre’.
7.The issue of costs in respect of the husband’s application for a stay be stood over to 3 May 2016 at 9:15am.
8.The respondent wife provide to the Full Court of the Family Court of Australia on its hearing listed for 22 March 2015 a copy of the orders made today.
THE COURT NOTES THAT:
9.The Wife has provided and the Court has accepted an undertaking in the following terms:
1.Pending the outcome of appeal proceedings number EA 29/2016 (“the Appeal”), I will not enforce or make any application to enforce (including but not limited to filing any application for contravention) the following aspect of Order 6 of the Orders of Judge Kemp dated 4 March 2016 (“the Orders”):
The husband … shall, thereafter, [from the expiration of 21 days of the Orders], be restrained by injunction from … loitering within a 2 kilometre radius of the [NSW Highlands] property.
solely insofar as the Applicant (“Husband”) obtains accommodation within a 2 kilometre radius of the [NSW Highlands] property but greater than a 200 metre radius of the [NSW Highlands] property. The [NSW Highlands] property is defined as the property situate at [address omitted] being the whole of the land more particularly described in Certificate of Title Folio Identifier […].
This undertaking does not limit my ability to otherwise enforce the balance of Order 6 of the Orders.
2.Pending the outcome of the Appeal, I will not dispose of the contents of the Husband the subject of Order 7 of the Orders, provided that:
a.On or before 9am, 29 March 2016, all such contents sought to be retained by the Husband are listed by inventory in writing, and a copy of such list is served upon my solicitors by that time; and
b.On or before 9am, 29 March 2016, all such contents sought to be retained by the Husband as identified in the list referred to at paragraph 2(a) above, are placed within the cottage located on the [NSW Highlands] Property, and known as [address omitted]; and
c.On or before 9am, 29 March 2016, all such contents sought to be retained by the Husband as identified in the list referred to at paragraph 2(a) above, are affixed with a clearly visible, coloured sticker.
(Original emphasis)
It follows that unless the hearing of the husband’s appeals, or at least the appeal in relation to the refusal to give an entire stay is expedited to a date prior to 31 March 2016, to some extent, the husband’s appeal against the orders of 4 March 2016 and 18 March 2016 (in particular, those which require him to vacate by 31 March 2016), will be rendered nugatory. Such an outcome would ordinarily weigh heavily in favour of an order for expedition but not in this case. That is because since the orders were made in 2013 the husband has been obligated to join in the sale of the NSW Highlands property. He has tested the validity of that outcome on appeal and has been unsuccessful. In my view, even if he was to have a measure of success in this appeal, it would have no effect on his obligations imposed under the 2013 orders or those enforcement orders also challenged unsuccessfully.
As to the grounds of appeal, I find myself in broad agreement with the analysis contained at [28] – [29] of the primary judge’s reasons for judgment as follows:
28. In that regard, and dealing with the grounds of appeal,
a)In ground (i) the husband continues to maintain a view that there were no valid agency agreements in place. There were various written agreements with [ABC Real Estate Agents], referred to in the Court’s decision. During the course of hearing a number of applications in this matter, the husband has, consistently, maintained a view that [ABC Real Estate Agents, NSW Highlands] are not competent or credible agents. Nevertheless, the “default” agent appointed in accordance with the final orders of 26 September 2013 was [ABC Real Estate Agents, NSW Highlands]. In terms of that order alone, an agency arrangement has been created between the parties and that real estate agent and [ABC Real Estate Agents] have acted on that basis.
b)In terms of ground (ii), the husband conceded that he had denied access to the [NSW Highlands] property to workmen retained by [ABC Real Estate Agents], but maintained that he had never agreed to the works to be carried out, their cost and he continued to assert his principal objection to [ABC Real Estate Agents], being that they were not validly appointed.
c)In terms of ground (iii), the husband again raised the issue about the validity of [ABC Real Estate Agents’] appointment.
d)The Court is of the view that the matters raised in grounds (i), (ii) and (iii) above have little or no prospects of success.
e)Turning to ground (iv), the husband was unable to point to any error in the Court’s findings as to his interaction with the Police on 27 and 28 October 2015, save for a quotation taken from the police records, at paragraph 60 of the judgment, in terms of the following:
The police informed the husband of the agreed work, being the designated works, would take place tomorrow as agreed by himself, his solicitors, the Courts and other interested parties.
The husband says that the reference to “his solicitors” must have been a reference to “her” (being the wife’s) solicitors. The Police documents, in fact, refer to “his solicitors” as set out in Exhibit “2” (on 10 February 2016). If that be an error given the husband is unrepresented, in any event, the Court is of the view it is of little moment.
f)In terms of ground (v), the husband, again, asserts that his only reasonable excuse in refusing access was that he did not believe that [ABC Real Estate Agents] were credible agents and that they did not have any contractual right to be on the [NSW Highlands] property and, therefore, had no contractual right to retain workers to perform work there. All of that seems to be missing the point in that the final orders which the wife was seeking to enforce was for the parties to do all acts and things and sign all necessary documents to effect the sale of the [NSW Highlands] property, and by consequential orders, to give access to the [NSW Highlands] property to real estate agents at reasonable times on reasonable notice, in terms of orders 1 and 4(d). The Court is of the view that that ground, too, has little or no prospect of success.
g)In terms of the ground (vi), the husband says that he was denied procedural fairness in not being provided with the Court’s finding as to a “prima facie” case for contravention, so that he could address that matter, himself. The Court’s recollection was that he was informed that the Court had to find a prima facie case before he needed to, himself, consider giving any evidence as to reasonable excuse. He addressed on the matters going to prima facie case which went to the issues, from his point of view of the invalid agency arrangements either then in place, or not in place. The Court does not accept that there is any merit in that ground of appeal. The same matters that the husband raised by way of reasonable excuse were the matters that he raised by way of an argument that there was no prima facie case. Further, the Court has had to balance the need to provide a just and efficient disposal of matters before it, with the husband’s desire to talk extensively and repeat matters which go into the lengthy history of this matter.
h)In terms of ground (vii), the husband asserts the only basis for there being any error in a finding that he had not complied with his own undertakings was because, again, he appears to strictly read his undertaking as being limited to dealing with an agent that, he regards, as credible and acceptable, and that that does not apply to [ABC Real Estate Agents].
i)The Court is of the view that grounds (vi) and (vii) have little or no prospects of success.
j)In terms of ground (viii), as Mr Grew submits, it appears to be “unintelligible”. The Court accepts that it is difficult to understand what that ground could allude to.
k)In terms of ground (ix), given that the wife has become the sole trustee for sale after the expiration of the enforcement orders of 28 May 2015, which had been appealed with the appeal being dismissed, the wife was then solely entitled to effect a sale of the [NSW Highlands] property. As such, there was a clear basis for granting sole vacant possession of the [NSW Highlands] property to the wife to enable that to occur. This ground has little or no prospects of success.
The husband would appear to have an arguable position, however, with respect to the 2 kilometre “exclusion zone”. The husband did not make any submissions at the time of the hearing as to that so called exclusion zone. In this hearing for the stay, the Court has now varied that exclusion zone to within a 200 metre radius of the [NSW Highlands] property. The Court has done so in terms of the undertaking proffered by the wife, and after hearing oral submissions from the husband about where 2 kilometres, would otherwise, have prevented him from going/loitering, in particular, to local shops and the like. While the husband may be successful in respect of an appeal against the order for 2 kilometres, leaving aside the issue as to “loitering” and its impact on such an order, by way of an appropriate restriction, that has now been varied and the Court does not accept that, on that basis alone, the other orders should be stayed which would, otherwise, prevent the wife from marketing and selling the [NSW Highlands] property in terms of her obligations to do so pursuant to the final and the enforcement orders.
l)In relation to ground (x), the Court accepts, as Mr Grew submitted, that events have moved on. The husband has failed to comply with the final orders and has now acted, as the Court has found, in ways to frustrate the wife from effecting a sale of the [NSW Highlands] property to comply with those orders. In those terms, the husband’s appeal ground would appear to have little or no merit.
m)In terms of ground (xi), this matter had no basis in the Court’s finding save that the Court was aware that the mortgagee of the [NSW Highlands] property was seeking to take some enforcement action. The matters raised by the husband could not have been investigated in a contravention hearing based on the matters then before the Court. That ground has simply no prospects of success.
n)In terms of ground (xii), the Court finds that this is a repetition of the husband’s ongoing concerns which have been fully dealt with by the Full Court of the Family Court of Australia on 19 February 2016 and on 19 March 2014. The Full Court has now entertained applications from the husband over what appears to be a 2 year period.
o)Finally, in respect of ground (xiii), the Court notes that Kent J, in delivering the decision of the Full Court of the Family Court of Australia on 19 February 2016, made it quite clear that the legitimate pursuit by a party of that party’s legal rights could not be characterised as a behaviour of a kind which conceivably constitutes family violence, within the meaning of the Act. The husband’s repetition of those issues in terms of ground (xiii) makes it clear that he has not taken on board the decision of the Full Court and, simply, seeks to ignore anything he does not like to hear.
29.Accordingly, the Court is of the view that even on a “preliminary assessment” of the grounds of appeal sought by the husband, the husband is highly unlikely to be successful and his prospects are extraordinarily poor.

This morning there were addresses of some length from the husband about the difficulty he now faces, in particular, in relation to the removal of personalty from the property. Contrary to the husband’s submission that by co-operation the 2013 orders could be readily enforced, his submissions made today indicated that his co-operation is unlikely to be forthcoming and the most likely scenario is of prevarication and delay. I need only refer to the husband’s analysis of the order which requires him to give an inventory of the items he wishes to retain to the wife’s solicitors by 9.00 am on 29 March 2016. In quite convoluted reasoning, the husband sought to persuade me that the time limit contained in that provision, in fact, expired sometime today. The submissions with respect to the husband and in all probably as known to him, demonstrate his attempt to rework the orders in a way which suits whatever position he seeks to adopt in relation to them. There can be no doubt that the inventory is required on or before 9.00 am on 29 March 2016. The submissions which were made to the contrary do the husband no credit.
I explained to the parties on Tuesday that the husband would need to establish facts which would justify his appeals being given priority to the possible detriment of other cases. That is, for the appeals or one of them to be listed in circumstances which would displace other appeals filed in the ordinary course and which would otherwise be heard and determined if they were not displaced by those sought to be prosecuted by the husband. The Court labours under a very significant workload and there is no doubt that in this registry appeals can wait longer for hearing than is desirable. Expedition must inevitably be a balancing exercise between the appeals sought to be expedited and those which otherwise wait.
In my view, the husband has not established facts which would justify his appeal being given priority to the detriment of other cases. It bears repeating that these are his fifth and sixth appeals and in relation to which there have been four prior appeals that have been dismissed with costs. I emphasise that the 2013 orders remain undisturbed.
The husband informs the Court that it is his intention to commence proceedings pursuant to s 79A of the Act. Be that as it may, there is nothing that the husband has placed before the Court today which would weigh in favour of effect not being given to the orders that are in place.
If there was any doubt about that one need only take into account that the respondent has waited a very long time to have the orders given effect. She informs the Court that the mortgage has been in default since the middle of last year, that there are significant debts due to the Australian Taxation Office and that she has significant outstanding solicitors’ bills. There was no demurrer from the husband to those propositions. The respondent also informs the Court that the mortgagee has indicated they are not willing to wait indefinitely and there is a prospect that if the mortgagee was to take possession of the NSW Highlands property it would be to the parties’ disadvantage.
I have not lost sight of the fact that the wife gave her support to expedition of both appeals. She is quite clearly distressed at the length of time that this litigation has endured and made it clear that she needs it to be over. I understand her sentiments but if she is looking for finality by the determination of the appeals I fear, having heard the husband explain his intentions in relation to s 79A, that finalisation of the appeals may not give her the relief that she seeks.
Other respondents almost universally support expedition for much the same reasons as those explained by the wife in this case. I have explained why I am of the view that these appeals should not take priority over other appeals. What I will do, however, is ask the Appeal Registrar to settle the Appeal Index for the appeal books. I make provision for summaries of arguments so that if at some stage an appeal falls through these appeals would be ready and be interposed without causing difficulty for other litigants. The husband, of course, needs to understand that the orders operate in their current form and he is now obligated to vacate the property by 31 March 2016 and that the orders in relation to personalty must be abided.
The applications for expedition should be dismissed and I will order accordingly.
Orders were also sought by the husband for the Court to supply transcripts, at the Court’s expense, of the proceedings before the primary judge on 11 November 2015, 16 December 2015, 9 February 2016, 9, 17 and 18 February 2016 to be included in the appeal books. I do not understand that the transcript of 11 November 2015 forms part of the evidence before his Honour and it may be that the request for that transcript is, in fact, to support an application to adduce further evidence in the appeal. The husband made a similar application in the first tranche of appeals in which the Full Court at [128] - [130] pointed out that the Court is not funded to provide transcripts to litigants and the principles by which these applications are determined. Other than to plead impecuniosity, the husband has failed to address the other matters which the Court must consider in applications of this type. He has not established that the Court should expend funds in the provision of a transcript in relation to orders which, at the end of the day, simply give effect to final orders made in 2013. The application for the provision of transcripts at the Court’s expense will be dismissed.
The costs of these applications will be costs in the cause.

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 22 March 2016.

Associate:

Date: 11 April 2016