Andrew & Delaine

[2009] FamCA 110

FAMILY COURT OF AUSTRALIA

ANDREW & DELAINE [2009] FamCA 110

FAMILY LAW – ORDERS – stay – application by husband for stay of parenting orders pending appeal – where husband seeks sole parental responsibility and that children live with him – where Full Court will still be in a position to make orders with respect to parental responsibility – stay refused

FAMILY LAW – ORDERS – stay – application by husband for stay of financial orders – where order provides for the distribution of proceeds of sale of properties – where appeal would not be rendered nugatory if stay of order refused – stay refused

Family Law Rules 2004 (Cth)

K and B (2006) FLC 93-288
Jennings Construction Ltd and Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

APPLICANT: Mr Andrew

RESPONDENT: Ms Delaine

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 1216 of 2004

DATE DELIVERED: 11 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.L. Jordan

SOLICITOR FOR THE APPLICANT: David M Davidson

COUNSEL FOR THE RESPONDENT: Mr D.R.L. Whittle

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr B. Bowler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Hume Taylor & Co

Orders

1. The Court refuses to grant the stay application in relation to paragraphs 1 and 2 of the Orders of the Honourable Justice Dawe on the 5 December 2008 in relation to the children’s issues.

2. The Court refuses to grant the stay application in relation to paragraph 6 (e) (i) of the Orders of the Honourable Justice Dawe on the 5 December 2008 in relation to the property settlement.

3. Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the children  R and E both born on … August 1993 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party AND UPON NOTING that Mr Brendan Bowler of Counsel was previously appointed for the two children in the matter.

4. The husband pay the wife’s costs of and incidental to the application for a stay fixed in the sum of FIVE HUNDRED AND FIFTY DOLLARS [$550.00].

5. The Application in a Case filed by the husband on the 5 January 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Andrew & Delaine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1216 of 2004

MR ANDREW

Applicant

And

MS DELAINE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an Application in a Case filed by the husband on 5 January 2009, in which he seeks orders that paragraphs 1, 2 and 6(e)(i) of my orders made on 5 December 2008 be stayed until further order. 

2. The material filed in support of that application is an affidavit of the solicitor for the husband annexing the orders that I made and a copy of a notice of appeal against those orders.  Paragraph 5 says:

   “I seek a stay of the orders appealed against until further order, as not to do so may render the appeal nugatory.”

3. That is the material I have before me.  I have heard submissions today from counsel for the husband, counsel for the wife, and the Independent Children’s Lawyer.  In relation to the issue of granting a stay, the Rules make provision for a stay to be granted in appropriate circumstances.  Generally the Court needs to look at several factors. 

4. The appeal has on the face of it been instituted within the appropriate time, and the grounds are set out in the appeal.  In relation to the children's issues, the parenting orders sought in the appeal are that the husband has sole parental responsibility for the long-term care, welfare and development of R and E, and the children live with him. 

5. The grounds of appeal refer to asserted failures to give sufficient regard to certain factors or to attach sufficient weight to certain factors or errors in findings of certain factual matters.  These, of course, are matters which need to be determined on appeal.

6. It appears on the face of it that there are genuine issues, which are to be put before the Appeal Court to be determined.  The significant factors on the part of the wife are that the issue raised in the affidavit in support of the stay suggests that to not grant the stay would render the appeal nugatory.  However, the husband is not seeking any order which would change the arrangements which would provide for the children to live with the wife pending the appeal, and there is nothing in the material before me, or the factual basis upon which the orders were made in my judgment, which alters the question of who should have sole parental responsibility for the children.

7. The Full Court will still be in a position to make an order which will provide for the parents to have shared parental responsibility or, if the appeal is successful, for the father to have sole parental responsibility. 

8. In the meantime, however, and in view of the matters which I referred to in my judgment when dealing with the issue of parental responsibility, I consider that it is not appropriate to alter the orders that I made after hearing all of the matters at trial.

9. It is not a situation where it will either be impossible or difficult to restore a position whereby the father has sole parental responsibility, or whereby the husband and wife have joint parental responsibility.  I have had no other matters put to me today which would alter the findings that I have made in my judgment.

10. I therefore refuse to grant the stay in relation to paragraphs 1 and 2 of my orders of 5 December 2008, those being the only orders that the husband is seeking to stay in relation to children's issues.  I do so specifically taking into account that, although a stay is of itself a procedural-type order, the decision of the Full Court in the K and B (2006) FLC 93-288 suggests that it is appropriate to take into account the interests of the children when considering the grant of a stay in relation to parenting orders.

11. I turn to consider the question of a stay in relation to the financial orders.  The only order the husband seeks to be stayed is that in paragraph 6(e)(i), which relates to the distribution of the proceeds of sale of properties at G and K.  The order provided for payment to the wife of the sum of $125,150 and the balance to the husband.  The husband seeks an order which stays the payment of $125,150 to the wife, leaving all of the other orders made in relation to financial matters on foot.  He does so on the basis, according to the affidavit, “that the appeal would be rendered nugatory”.

12. Again the material before the Court is that the parties own substantial assets.  They are summarised in my judgment; in particular the summary of assets and liabilities commences at page 76 of my judgment, and the distribution of those assets commences when I made the overall just and equitable assessment commencing on page 86 of my judgment.  That provided that the wife was seeking to retain her superannuation interests and other assets, including W property which was valued at $820,000.  I agree that it would not be possible for the husband to recoup the funds which he seeks from the wife from the other assets. 

13. The proceeds of the sale of the two properties concerned were to be held in the trust account of the wife's solicitors and distributed in accordance with the orders.  I am told that all of the transfers have not taken place and the payment of any of the moneys to the parties has apparently not taken place.

14. When considering the question of whether, if the orders were not stayed, the appeal would be rendered nugatory, it is necessary to consider whether it is impossible or difficult for the situation sought to be restored.  A successful litigant is not to be deprived of the fruits of litigation without good cause, and it is necessary to consider, when ordering a stay, whether the hardship caused to one party outweighs the hardship which might be caused to the other. 

15. It is significant in taking into account the authorities;  in particular the Jennings ConstructionLtd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 places some emphasis on the careful weight to be given to the questions of hardship.

16. The wife has given evidence that she needs to pay debts for moneys which she has borrowed, but I accept that the payment of those debts from moneys to be received is not necessarily pressing.  In the alternative, however, the husband would have available to him the substantial asset of the unencumbered property at W, worth over $800,000 from which to recover any amounts due to him on any successful appeal.  That however would not necessarily be as convenient for him as the access to the funds held by the solicitor as the proceeds of sale of the properties which have been sold.

17. Weighing all of the factors carefully and not being satisfied that the appeal would be rendered nugatory, I err on the side of the provisions which state that a successful litigant should not be deprived of the fruits of litigation without good cause and therefore refuse to grant the stay of the property settlement orders as well.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  23 February 2009