Walters and Carson
[2017] FamCAFC 128
•12 July 2017
FAMILY COURT OF AUSTRALIA
| WALTERS & CARSON | [2017] FamCAFC 128 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the de facto husband seeks expedition of his application to appeal property settlement, spouse maintenance and child support departure orders – Where the notice of appeal contains 59 grounds and 37 particulars – Where the notice of appeal is oppressive and borders on being an abuse of the court process – Where prejudice would be caused to the respondent if the appeal was expedited – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed – Directions for amended notice of appeal. |
| |
| APPLICANT: | Mr Walters |
| RESPONDENT: | Ms Carson |
| FILE NUMBER: | SYC | 79 | of | 2016 |
| APPEAL NUMBER: | EA | 66 | of | 2017 |
| DATE DELIVERED: | 12 July 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 12 July 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2017 |
| LOWER COURT MNC: | [2017] FamCA 330 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
Orders
The Application in an Appeal filed on 26 June 2017 be dismissed.
The appellant file and serve an Amended Notice of Appeal by close of business on 11 August 2017.
The procedural hearing listed before the Appeals Registrar on 26 July 2017 is vacated.
The matter is not listed for a further procedural hearing before the Appeals Registrar other than in accordance with an order of a judge.
The matter is listed for further directions before Ryan J at 10:00am on 17 August 2017.
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 Walters & Carson 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 66 of 2017
File Number: SYC 79 of 2016
| Mr Walters |
Applicant
And
| Ms Carson |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were given orally.
By an Application in an Appeal filed 26 June 2017, Mr Walters (“the de facto husband”) seeks an order for an expedited hearing of his application for leave to appeal and his appeal (EA 66 of 2017). The appeal was filed on 14 June 2017 against final property settlement, spouse maintenance and child support departure orders made by Benjamin J on 18 May 2017.
The de facto husband and Ms Carson (“the de facto wife”) were in a de facto relationship within the meaning provided in the Family Law Act 1975 (Cth) (“the Act”) from about December 1999 until 1 February 2017. They have three children.
In broad terms, the orders under appeal provide for:
· The sale of real property jointly owned by the parties at A Street, Suburb L (“the L property”) and the distribution of the proceeds of sale (Orders 3 and 4),
· Payment by the de facto husband to the de facto wife of $988,681 to be paid contemporaneously with settlement of the sale of the the L property (Order 2),
· Payment by the de facto husband to the de facto wife of a sum related to the capital due to him from the New York partnership (Order 13),
· Payment by the de facto husband of court expert fees (Order 14),
· Payment by the de facto husband to the de facto wife for maintenance, child support and non-periodic expenses in respect of the children as provided in Orders 17, 18 and 19,
· It is noted that the de facto husband is not entitled to seek that the non-periodic expenses referred to in Order 19 reduce his periodic child support amount (Order 20),
· The de facto husband is to transfer frequent flyer points to the children’s respective frequent flyer accounts (Order 5), and
· A general distribution of realty and personalty in the parties’ possession (Orders 15).
The Notice of Appeal contains an extraordinary 59 grounds of appeal. Ground 1 contains 37 particulars which list factual findings that the de facto husband alleges were made contrary to the evidence but it is not entirely clear whether it is intended to convey that those findings were not available or merely that different findings should have been made.
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. I am acutely conscious that it may be that some of the matters now recounted will ultimately be seen to be controversial in the appeal but the judgment is a safe enough platform for the purposes of this application.
The de facto husband is 44 years of age and the de facto wife is 43 years of age. Both parties are professionals by occupation.
The parties commenced living together as a de facto couple in about December 1999 and that relationship subsisted until they separated on about 1 February 2014.
There are three children of the relationship. At the time of separation the elder child was aged almost eight, the second child was almost five, and the youngest, a daughter, was aged about four months.
The de facto wife and de facto husband are both residents of New South Wales and live in Sydney. During at least one third of the period of their relationship and at the time the relationship broke down they lived in Sydney. The jurisdiction is therefore engaged.
At the time the parties commenced cohabitation the de facto husband worked for a large multinational professional firm. The de facto husband became a partner of that firm in about 2009 as he was at the date of separation. During the course of the relationship he made or created capital contributions to that partnership.
The parties acquired the L property in about September 2012. Since separation, the de facto wife and the children have lived in the property to the exclusion of the de facto husband.
Final parenting orders were made by consent on 23 January 2017 which, in broad terms, provided that the children live primarily with the de facto wife and spend increasing amounts of time with the de facto husband.
Following separation, the de facto husband moved into rented accommodation at Suburb N.
Since then the parties’ financial arrangements have continued fairly substantially as had been the case prior to separation.
In the latter part of 2015 the de facto husband’s employer made a decision to close its Sydney office, and entered into discussions with him regarding his withdrawal from that partnership. Those discussions were concluded in February 2016 and according to the trial reasons the de facto husband received a number of payments between January 2016 and December 2016, totalling some $2.2 million. Additional payments, for example partner distributions, were paid later in the amounts of approximately $120,000 and $900,000.
The effect of those payments, according to the primary judge, was that the de facto husband was paid the same amount through the 2016 calendar year as he had received by way of gross partner distributions in 2015. The de facto husband has remaining in that firm an unpaid partner capital account, the balance at the time of trial was USD$547,996 (AUD$732,302). He anticipates receiving this by way of payments in two tranches in May 2017 and May 2018. According to the primary judge, the de facto husband asserted that the precise quantum is not known and it is subject to certain conditions being met.
On 24 April 2016 the de facto husband purchased a property at A Street, Suburb N. According to the reasons for judgment his girlfriend purchased the adjoining property.
The de facto husband found work as a partner of an English firm in relation to which the primary judge said he is likely to earn towards $2 million per year in the short to medium term [55].
In the 2016 financial year the de facto wife's taxable income was $31,956 compared to the de facto husband's taxable income of $2,875,321.
On 22 August 2016 interim orders were made which provided that the de facto husband pay interim maintenance to the de facto wife of $923 per month and some $135,000 against the parties’ off-set account.
The trial took place in January 2017 and final orders were made on 18 May 2017. There is an application by the de facto husband for a stay of Orders 5, 13b, 15d, 15e, 17, 18 and 19. The application is listed before the primary judge on 27 July 2017. In his stay application, the de facto husband indicates that there may also be a further application for a stay of Orders 2, 4c, 4d, and 4e.
Discussion
Section 94(2D)(j) of the Act provides that a Full Court of the Family Court or a judge of the appeal division, or another judge if there is no judge of the appeal division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial. 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.
Turning to the question of the application of that rule. I note that the draft appeal index was filed 28 June 2017 and a procedural hearing is listed before the Appeals Registrar on 26 July 2017. The Registrar has informed the Court that without an order for expedition, the appeal is likely to be listed for hearing in early 2018. It would be my expectation that without expedition the appeal in its current form would be heard in February or March 2018. However, as a result of matters that have fallen this morning, it may be that that is not achieved. In any event, the early 2018 date is on the basis that the standard appeal directions will be made and complied with without difficulty. I am satisfied that can be complied with but I am not satisfied that the respondent should be called on to answer this notice of appeal. In this respect, directions will be made requiring an amended notice.
Subparagraph (a) is concerned with whether the applicant has acted reasonably and without delay. There is no doubt that in relation to the appeal and this application, the de facto husband has moved promptly and done all that is required to prosecute his appeal and case for expedition. To the extent that the provision is concerned with timeliness the provision weighs in favour of an order for expedition. To the extent that the provision is concerned with “acted reasonably”, the notice of appeal is plainly not a reasonable document and in that respect the provision weighs against an order for expedition.
Sub-paragraph (2)(b) is concerned with whether the application has been made without delay. That matter has already been addressed and need not be considered further.
Subparagraph (c) concerns prejudice to the respondent, in this case, the de facto wife. This is a particularly important factor in this application given, as I have said earlier, that the Notice of Appeal lists 59 grounds of appeal, one of which contains 37 particulars. I am of the view that there would be prejudice to the de facto wife should she be required to prepare her case within a truncated timeframe given the extensive scope of the appeal. In my view the notice of appeal, as presented, is plainly oppressive and there can be little doubt that it borders on being an abuse of the court process. It is difficult to discern from that notice how any serious attempt has been made to grapple with the principles which might justify appellate intervention. It should not be allowed to go forward without amendment. The application of the subsection weighs overwhelmingly against an order for expedition.
Subparagraph (d) requires consideration of circumstances which would justify this case being given priority to the possible detriment of other cases. When I say the detriment of other cases, I mean to other cases that have been filed earlier and which will be called on for hearing in the ordinary course, but not if this appeal was expedited. In the ordinary course an order for expedition of one appeal would dislocate one other appeal in the queue. This case however, presented as it has been, would inevitably dislocate a number of appeals. It is impossible to see how this notice of appeal could be disposed of in two days and it may be that it would require a third. The presentation of the appeal in this form weighs heavily against expedition.
Examples of what constitute a relevant circumstance are set out in r 12.10A(4)(a) – (g). On the evidence available, 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 de facto husband’s position is that if his application for expedition is not granted, he will be prejudiced and suffer financial hardship pending the determination of the appeal. It is said there is the potential for financial prejudice ultimately to the respondent and perhaps also the children if the de facto husband was able to secure a measure of success in the appeal and funds are paid between now and the orders under appeal being altered. The point being that the funds would have to be reimbursed. As the solicitor for the respondent pointed out, there is a significant sum of money to be distributed to the de facto wife and payments made to her could of course be reimbursed. There could be some difficulty in relation to child support and as the solicitor for the de facto husband stated; it may simply result in a credit which would have the effect of the children not receiving financial support for some period.
The de facto husband further submits that expedition of the appeal will allow for the earliest possible determination as to when the L property may be sold and allow the parties to benefit from, what he describes, as the peak of the Sydney real estate market, particularly, for more valuable properties in the eastern suburbs of Sydney. The de facto husband expressed concern that if the Sydney real estate market declines and values of property decrease, the parties will suffer financial loss when it comes to the eventual sale of what was the family home.
The parties have a net property pool valued, according to the primary judge, in excess of $7 million. There is nothing in the evidence adduced in these proceedings that suggests the funds advanced to the de facto wife would not be recoverable, that if the sale of the L property takes place as ordered that the market forces would adversely affect the eventual sale price or that the purpose of the case would be lost if it is not heard in priority to other appeals.
Finally, it is necessary to consider the grounds of the application for leave to appeal and the appeal. The grounds of the application for leave to appeal appear to raise matters of some substance and there may be some substance in the grounds of appeal but if there is substance, the white noise of approximately 97 grounds has tended to mask their strength. It is not apparent that the appeal is presented on such compelling and urgent grounds in its current form that the court should dislocate other appeals so as to give it priority.
For these reasons the application for expedition will be dismissed.
I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 12 July 2017.
Associate:
Date: 13 July 2017
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