· 2022-04-20T17:49:58+0000 · 750 posts

Wife Appeals Interim Orders Relating to Property

Kartal & Templeman [2022] FedCFamC1A 46 (4 April 2022)

The parties are in dispute over the net value of the property which is ultimately available for distribution between them. The wife appeals from interim orders made on 13 October 2021 by a magistrate of the Magistrates Court of Western Australia. The Court, in resolving this dispute, assessed whether the wife can appeal as of right because the magistrate's orders are final.

Facts:

Proceedings between the parties under the Family Law Act 1975 (Cth) (“the Act”) were commenced by the husband in March 2021.

The parties each seek relief under Pt VII and Pt VIII of the Act in respect of their children and property, but the proceedings are yet to be fixed for trial. Both parties sought interim relief and their respective applications were fixed for hearing in September 2021. The husband sought the orders set out in the Minute of Orders he had circulated on or about 6 September 2021 and the wife sought the orders set out in the Response she filed on 17 June 2021.

The husband sought the sale of the former family home and the use of its net sale proceeds (after discharge of the mortgage and payment of attendant sale expenses) to pay other specified debts. He also proposed the partial distribution of the residual proceeds between the parties by way of interim property settlement: $25,000 to him and $50,000 to the wife.

The wife sought the transfer to her of exclusive title in the former family home and an order compelling her to enter into a loan for $900,000 with her relative (“Mr P”) secured by mortgage over the former family home, which money she would then use to discharge the existing mortgage and certain other debts. The wife alternatively proposed that she enter into a loan for $300,000 with another relative (“Ms L”), though it was not made plain how that alternative plan could be advantageous, since the quantum of the mortgage and other debts the wife wanted to pay with the loan far exceeded $300,000.

By an Amended Notice of Appeal filed on 11 February 2022, the wife appeals from interim orders made on 13 October 2021 by a magistrate of the Magistrates Court of Western Australia. The appealed orders made provision for the sale of the former family home, though not until January 2022 (Orders 1 and 5), the use of the sale proceeds to discharge the existing mortgage and to pay the sale expenses and certain other debts (Order 2), and the parties’ restraint from using any of the residue sale proceeds without the other’s consent or pursuant to Court order (Order 3).

The wife contends that she can “appeal as of right” because the magistrate’s orders are “final rather than interlocutory”. The wife contends she will suffer the substantial injustice of her enforced removal from, and deprivation of, the home in which she wishes to continue living with the children, but the argument is not as strong as she perceives.

On 15 March 2022, the wife filed an Application in an Appeal seeking permission pursuant to s 35(b) of the FCFCA Act to adduce further evidence in the appeal, which application was supported by her simultaneously filed affidavit and another filed on 25 March 2022. The wife filed a second Application in an Appeal on 25 March 2022, supported by another lengthy affidavit, seeking permission to adduce even more evidence in the appeal, which the husband opposed.

Issue:

Whether or not the wife can “appeal as of right” because the magistrate’s orders are “final rather than interlocutory”.

Applicable law:

Family Law Act 1975 (Cth) Pts VII, VIII, s 114 - provides that in proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

(a) an injunction for the personal protection of a party to the marriage;

(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

(d) an injunction for the protection of the marital relationship;

(e) an injunction in relation to the property of a party to the marriage; or

(f) an injunction relating to the use or occupancy of the matrimonial home.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28 - provides that if the orders are interlocutory in nature and do not relate to a “child welfare matter”, leave to appeal from them is required.

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02 - pursuant to which since the orders are interlocutory in nature and do not relate to a “child welfare matter”, leave to appeal from them is required.

Property Law Act 1969 (WA) ss 126, 127 - relied upon in holding that in view of the wife’s objection to its sale, the husband could have sought an order compelling the parties’ sale of the property.

AMS v AIF (1999) 199 CLR 160; [1999] 199 CLR 160 - pursuant to which the Husband, as the moving party on the Form 2A application, bore at least a forensic onus to convince the Magistrate that suitable alternate accommodation for the Wife and Children: (1) was available; & (2) could, having regard to the parties' financial circumstances, be paid for.

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 - provides that the subject further evidence was available and could reasonably have been obtained at the time of the hearing before the magistrate. Its reception would tend to obliterate the distinction between original and appellate jurisdiction.

Gabel v Yardley (2008) FLC 93-386; [2008] FamCAFC 162 - where it is well accepted that the exercise of statutory power under s 79 of the Act may be fragmented until the power is entirely spent.

Licul v Corney (1976) 180 CLR 213; [1976] HCA 6 - provides that the essence of finality is disposition of the justiciable dispute.

Ravasini & Ravsini (1983) FLC 91-312; [1982] FamCA 62 - provides that the prospective need for parties to return to Court for consequential orders to facilitate the implementation of earlier substantive orders is not exceptional.

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that the grant of leave requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate review and that substantial injustice would result if leave were refused, supposing the decision to be wrong.

Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 - the subject orders made in that case for the buy-back of certain assets by one party from another were held to be final because “they dispose finally or the rights inter se” of the parties’ interests in the assets covered by the orders and thereby resolved the litigious cause between the parties.

Analysis:

While it is true the sale orders render otiose the wife's application for final relief in respect of the former family home, that consequence does not convert interlocutory orders into final orders. The orders do not exhaust the Court’s statutory power and are not dispositive of the parties’ respective applications for relief under Pt VIII of the Act. The orders for sale of the former family home do not resolve the parties’ proprietary claims to the property, but rather crystallise their existing rights in it. It cannot be said that the orders dispose of the justiciable cause between the parties under Pt VIII of the Act.

If the former family home is sold according to the orders, nothing stops the wife from purchasing the property on the open market with the aid of the same financial assistance she had envisaged using to privately acquire the husband’s one-half share. While she would then experience the disadvantage of having to compete with other prospective purchasers, any price increase caused by such competition will be mollified by her receipt as a joint vendor of one-half of the increased capital gain. The wife cannot demonstrate that sufficient doubt attends the decision to warrant the grant of leave to appeal, even with the aid of the further evidence she proposed to adduce.

The second application and its accompanying affidavit were filed late, in breach of r 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), without any satisfactory explanation for the lateness. The relevance of the evidence is not established. The documents the wife wants to adduce (being corporate searches and banking documents) were destined to support her attempt to prove in the appeal that the husband failed to fully and frankly disclose his financial circumstances prior to the hearing before the magistrate. She deposed such evidence advanced her claims under Grounds 1, 2 and 6, but it is difficult to see how that could possibly be so. The magistrate did not, and was not expressly asked to, make any finding about the father’s financial disclosure.

Conclusion:

The Court dismissed the Application in an Appeal filed on 15 March 2022 and the Application in an Appeal filed on 25 March 2022. The leave to appeal is refused. The Amended Notice of Appeal filed on 11 February 2022 is dismissed. The applicant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $8,823.

#FamilyHome

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