Wilder and Child Support Registrar (No. 4)

[2009] FamCAFC 175

FAMILY COURT OF AUSTRALIA

WILDER & CHILD SUPPORT REGISTRAR (NO. 4) [2009] FamCAFC 175

FAMILY LAW - APPEAL – stay application pending High Court special leave to appeal application - whether a stay is necessary to preserve the subject-matter of the litigation - extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted - an appeal does not operate as a stay - factors material to the exercise of the discretion to stay - a significant prospect of success - the balance of convenience clearly favoured the stay - there is a substantial prospect that special leave to appeal will be granted – of the opinion where the application is futile and would only further and unnecessarily protract the litigation - balance of convenience clearly favours the Child Support Registrar – application dismissed.

Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium (1986) 160 CLR 220
De Lewinski v Director General, NSW Department of Community Services (1996) FLC 92-678
Edelsten v Ward (No. 2) (1988) 63 ALJR 346
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681

APPLICANT: MR WILDER

RESPONDENT: CHILD SUPPORT REGISTRAR

FILE NUMBER: SYC 1997 of 2008

APPEAL NUMBER: EA 86 of 2009

DATE DELIVERED: 21 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: O'Ryan J

HEARING DATE: 18 September 2009

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 24 June 2009

LOWER COURT MNC: [2009] FamCA 742

REPRESENTATION

THE APPLICANT: Mr Wilder in person

COUNSEL FOR THE RESPONDENT: Mr Gouliaditis, solicitor

SOLICITOR FOR THE RESPONDENT: Australian Government Solicitor

Orders

1. The Application in an Appeal filed by [Mr Wilder] on 15 September 2009 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wilder and Child Support Registrar (No. 4) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 86 of 2009
File Number: SYC 1997 of 2008

MR WILDER

Applicant

And

CHILD SUPPORT REGISTRAR 

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Before me for hearing is an Application in an Appeal filed by Mr Wilder (“the Father”).  The Respondent is the Child Support Registrar.  In summary, the Father is seeking a stay of execution of a judgment I pronounced on 7 September 2009 pending the hearing of an application by the Father to the High Court for special leave to appeal against my judgment.  The application is opposed by the Child Support Registrar.

BACKGROUND

1. On 7 September 2009 I pronounced judgment in relation to an application by the Father seeking leave to file out of time an application for leave to appeal orders made by Fowler J.  I dismissed the Father’s application.  In my reasons delivered on 7 September 2009 I attempted to identify some of the background to the proceedings.

2. In summary, the Child Support Registrar is seeking to recover a child support debt of the Father.  In so doing an order was obtained in 2001 to sell the Father’s Blue Mountains property.  The Father appealed these orders including to the High Court and was unsuccessful.  In 2008 the Child Support Registrar was granted an enforcement warrant to sell the Father’s Blue Mountains property. 

3. On 7 September 2009 the Father made an oral application for a stay of the order I made.  The Father was seeking an opportunity to consider his position before steps are taken by the Child Support Agency to enforce its rights.  After hearing both the Father and the Child Support Registrar, I made an order that: “The execution of the orders made on 24 March 2009 be stayed until 4:00 pm on Monday 14 September 2009”.  I granted the Father an indulgence of one week as he had not had time to read my Reasons for Judgment; he was unrepresented; and needed time to consider his options, including perhaps filing an application for special leave to the High Court.

4. In my reasons delivered on 7 September 2009, I said:

   3.The history of this litigation is such that I am told about it being protracted and, in my opinion, it should be brought to a conclusion as soon as possible.  Thus, I would not be prepared to grant a stay for any extended period in the absence of an application for special leave to appeal to the High Court having been filed and, as well, there being evidence or some material which would enable a court to consider in a more considered way whether or not the orders that I have made should be stayed pending the hearing of any special leave application. (emphasis added)

5. On 14 September 2009 the Father filed an Application for Special Leave to Appeal to the High Court.  The “Grounds” set out in the application are as follows:

   2a.The trial Judge failed to apply the basic Family Court first principle, that the primary consideration of the Court be the best interests of the children.  The applicant humbly asks how is this basic first principle applied when the family home in which the dear son [E] was born on the lounge room floor is foreceable sold? [sic]  The sale is mostly to pay interest and legal costs to the C.S.A.  The dear children may benefit to the extent of approxiamately [sic] $4,000.

   2b.The trial judge failed to accept that the basic debt has been paid.  The father has paid Private School fees, paid for the education for the children during 1992.  The father has purchased, approximately late 1992,l “beds and beding” [sic] as ordered by The Family Court, beds for the dear children were approximately $1,200 each from David Jones Ltd.  The amount expend [sic] for the welfare of the dear children is well in excess of the current C.S.A. basic debt claimed, see latest statement “Balance 21/8/2009” $4,079.56 in Child Support.

6. The Father seeks the following orders if his special leave application is granted:

   3a.Please permanently stay the sale of the property known as [the Blue Mountains Property].

   3bPlease stay the sale of the property, [the Blue Mountains Property] until the mother fulfils her obligations ordered in the Family Court of Australia for the dear children to have regular access to their father.  Please order compliance with access order.

   I observe that the children of the Father were born in 1981 and 1982.

7. On 15 September 2009 the Father filed an Application in an Appeal.  The orders sought in the application are as follows:

   1.Please stay the sale of the property at [the Blue Mountains Property] until all appeal processes are exhausted.  An appeal has been lodged today in The High Court of Australia, at Sydney Appeal No [appeal number].

   Thank you for considering this sad case.

   A Sealed copy of the Application for Special Leave to Appeal is available to the Family Court today.

8. In his affidavit supporting his application the Father, who stated his usual occupation as “Very Substantial Longterm Volunteer”, said:

   1.The High Court of Australia at Sydney, has received and sealed an Application for Special Leave to Appeal to The High Court of Australia, Appeal No [appeal number].

   2.A stamped, sealed copy of the Application to the High Court has been sighted, copied and is lodged with this Application in an Appeal in The Family Court of Australia.

   3.Please accept the attached Application in an Appeal.

   4.Please stay the sale of the family home at [the Blue Mountains Property] until all appeal processes are exhausted.

   5.Thank you for considering this sad, sad case.

   6.The Applicant in this case has continuously volunteered in many community roles for 45+ years.

RELEVANT PRINCIPLES

1. I am of the view that pending the hearing of the application to the High Court, I have the power and jurisdiction to order a stay of the orders I made.  In the circumstances the issue is whether it is appropriate that it be exercised.

2. In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681, Brennan J said at 683: “The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises”. His Honour at 684 characterised a stay to preserve the litigation's subject-matter as “an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted”. His Honour explained at 685:

   In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion.  In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

3. In Edelsten v Ward (No. 2) (1988) 63 ALJR 346, Brennan J, emphasising the “exceptional” character of the Court's inherent jurisdiction to preserve the subject matter of litigation pending the making of a special leave application, said at 346:

   [This jurisdiction] is one which can only be exercised in extraordinary circumstances.  It is as well to emphasise that observation again lest the impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in statu quo until the litigation is finally resolved.  That is not the purpose of the inherent jurisdiction.  Something quite exceptional must be shown before that jurisdiction is exercised.

4. In Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium (1986) 160 CLR 220, Dawson J noted at 222 that the High Court Rules (see now O 70 r 8(1)) provide that, unless otherwise ordered, an appeal does not operate as a stay. His Honour said at 222 - 223:

   It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal: see, e.g., The Annot Lyle [(1886) 11 P.D. 114]; Scarborough v. Lew's Junction Stores Pty. Ltd. [[1963] V.R. 129]. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v. Church [No. 2] [(1879) 12 Ch. D. 454]; Klinker Knitting Mills Pty. Ltd. v. L'Union Fire Accident and General Insurance Co. Ltd. [[1937] VLR 142]. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v. Sandland [No. 2] [(1918) [1918] HCA 59; 25 CLR 369].

5. In De Lewinski v Director General, NSW Department of Community Services (1996) FLC 92-678, Gummow J referred to what Brennan J said in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (supra) at 685 in relation to the “factors material to the exercise of the discretion to stay” and observed that: “In the present matter, the applicant did take the steps necessary to seek a stay from the intermediate court of appeal. The question then becomes whether there is a substantial prospect that special leave will be granted”. Gummow J said that in his view “[t]here is a question of public importance involved here. There is, in my view, at least a significant prospect of success” as regards to certain grounds. He said that it then became a question of whether the grant of a stay will cause loss to the respondent. He concluded that the balance of convenience clearly favoured the stay, given the nature of the subject-matter of the litigation and the integrity thereof.

CONCLUSION

1. In circumstances of this case, I accept that in the event that pending the determination of the application to the High Court, the Child Support Registrar was able to sell the Blue Mountains property of the Father then there is a real risk that the Father could not be restored to his former position.  Thus I accept that a stay would be required to preserve “the subject matter of the litigation”.  I also accept that the Father did take steps to seek a stay of my order.

2. However, I am not persuaded that there is a substantial prospect that special leave to appeal will be granted.  In fact I am of the view that the application is futile.  I am also of the view that to grant a stay would only further and unnecessarily protract the litigation.  I observe that a significant portion of the debt now relates to the accumulation of penalties and yet at no time in the extensive history has the Child Support Agency obtained any benefit from the litigation.  In my view the balance of convenience clearly favours the Child Support Registrar.

3. In conclusion, I am not persuaded that the matters relied upon by the Father warrant the grant of the “extraordinary” remedy of a stay of this Court's orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Appellate Division of the Family Court of Justice O’Ryan

Associate: 

Date:  21 September 2009