Athanastos and Athanastos (No 2)

[2011] FamCA 449

FAMILY COURT OF AUSTRALIA

ATHANASTOS & ATHANASTOS (NO 2) [2011] FamCA 449

FAMILY LAW - PROCEDURAL – Stay Application

FAMILY LAW - COSTS – Application wholly unsuccessful – Consideration of financial circumstances

Family Law Act 1975 (Cth)

APPLICANT: Mr Athanastos

RESPONDENT: Ms Athanastos

FILE NUMBER: SYC 106 of 2007

DATE DELIVERED: 9 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 9 June 2011

REPRESENTATION

THE APPLICANT IN PERSON: Mr Athanastos

COUNSEL FOR THE RESPONDENT: Mr Reeves

Orders

1. The husband’s application, filed on 6 June 2011, seeking a stay of orders, is dismissed.

2. The order sought in the minute of order filed by the husband in Court today is refused.

3. The husband is to pay the wife’s costs of the stay application prosecuted by him today. Such costs assessed at $1000.

IT IS NOTED that publication of this judgment under the pseudonym Athanastos & Athanastos (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 106 of 2007

Mr Athanastos

Applicant

And

Ms Athanastos

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application in a case filed by Mr Athanastos (“ the husband”) on 6 June 2011 in which he seeks the following:

   That the orders, in particular orders 3(b), 3(c), 6, 15 and 16 be stayed pending the appeal and subsequent retrial.

   He additionally seeks orders in relation to costs. 

2. In that application he does not identify the date of the orders which he seeks to have stayed, however, in submissions before me today, he said the orders sought to be stayed were made on 16 February 2011 by the Honourable Justice Cohen.

3. After some initial submissions made by the husband to support his application filed on 6 June 2011, I took an adjournment to allow the husband to prepare a minute of a further order he was seeking.  I permitted the husband to file that minute in Court and proceed on it today.  That minute seeks the following order:

   That the operation of the caveat number […] be extended pending further order of the Court.

4. The husband’s application in a case filed on 6 June 2011 is supported by an affidavit filed by him on 6 June 2011. The affidavit is in short compass and annexes a copy of the orders made by the Court on 16 February 2011and a letter written by Jordan Djundja, Solicitors, to the wife’s solicitors dated 25 March 2011.  In this matter the solicitors point out that they have been assisting the husband on a pro bono basis by providing advice. They stipulate they do not act for him in relation to proceedings in this court.

5. The affidavit does not recite any reason for the granting of the stay order sought.  It briefly addresses the reason for the appeal being lodged and provides other details relative to the appeal.  In paragraph 3 of the affidavit the husband says this:

   I am appealing the whole decision of Cohen J of the Family Court and, in particular, his decision granting [the wife] the sole, exclusive rights to the registered folio […] with caveat number […].

6. In submissions the husband told me that he is particularly concerned about the property at S, and I gather the property at A.

7. There is no evidence before the Court about the particular caveat that is referred to in the additional minute which has been tendered and moved on by the husband today.  In submissions the husband told me that the caveat, which has been entered by him against the title of one of those properties, expires tomorrow.  He told me that he had commenced proceedings in the Supreme Court relative to the caveat and had been told that it was a matter that needed to be brought in the Family Court rather than the Supreme Court.

8. Looking at the detail of the orders, in particular those sought to be stayed, the husband has drawn the attention of the Court to orders 3(b) and 3(c).  These are orders which relate to school holiday time for the children with the husband.  There is no evidence to support a stay of those orders being made, nor is there any evidence to tell the Court why it is necessary that those orders be stayed.

9. The next order of particular concern to the husband is order 6.  Again, this relates to the children and, again, there is no evidence before the Court to establish why it would be necessary to have that order stayed. 

10. Orders 15 and 16 address property matters.  Order 15 required the husband to transfer to the wife all his interest in the property at S.  Order 16 empowers the Deputy Registrar of this Court to do all things necessary to obtain compliance with the said order 15, as attorney for the husband, and relates to the transfer documents clearly required to implement order 15.  The practical impact of that order is that, should the husband fail to sign necessary transfer documents, then the Deputy Registrar of the Court will sign those documents on his behalf.

11. The judgment was given on 16 February 2011.  On 31 May 2011 the husband filed in the Court an application for leave to extend the time to appeal, one assumes, the orders of the Honourable Justice Cohen made 16 February 2011.

12. Some explanation for delay is provided by the husband in an affidavit filed on 31 May 2011, however, there does not, on the face of it, appear to be an explanation for why it has taken from 16 February through to 31 May this year for the husband to file his application for leave. 

13. Order 15, as outlined above, requires the husband to transfer his interest in the property at S to the wife.  In order for the Court to consider favourably the making of a stay application, it is necessary for the applicant to establish that the appeal would be rendered nugatory if the stay was not granted.  In this case, there is simply no evidence to support and establish a proper ground upon which a stay could be and should be granted.  There is no evidence as to when the application for leave to appeal out of time might be heard. 

14. There are a number of other matters which the Court would usually consider, in determining an application of this nature. That would include being satisfied that the application for leave to appeal had merit; the appeal can be dealt with in reasonable time; consideration of the impact of a stay on the party who has the benefit of the order sought to be stayed; and any other special circumstance. None of these matters were addressed in submission or in evidence.

15. In the circumstances the wife is entitled prima facie to the “fruits of the judgment/orders”. The court preventing her from enjoying same is a course which should be trod very warily.

16. I propose to dismiss the husbands’ applications.

COSTS JUDGMENT.

1. Before the Court there is also an application by the wife for her costs to be paid by the husband following the dismissal of the husband’s application for a stay. Pursuant to Section 117 of the Family Law Act 1975 (Cth) (“the Act”) the Court has the power to make a costs order, however, it is a general provision that each party to proceedings under the Act should bear his or her own costs. Any application for a costs order needs to be determined pursuant to Section 117(2A) of the Act.

2. In considering section 117(2A), one of the matters that the Court needs to take into account is the financial circumstances of the parties to the proceedings. I have had the opportunity to read the judgment of the Honourable Justice Cohen which was delivered on 16 February 2011. The judgment paints a picture of the parties’ financial circumstances as being very poor and in fact, their liabilities exceed their assets.

3. The husband has told me today in Court, that he has been able to obtain some employment, two days a week, which generates him $130.  He has notified the Department of Social Security about that.  He has not been advised yet about what effect, if any, it will have on his disability pension which provides him with about $750 a fortnight.  He lives with his parents at their property. He does not own a car, however, he has the use of a car, at his mother’s discretion, from time to time.

4. I note from the judgment that the children of the marriage reside with the wife and she is financially responsible for the support of those children.

5. The court is also required to take into account whether either of the parties has been wholly unsuccessful in the application. In this case, the husband has been wholly unsuccessful in his application. There are other considerations listed under Section 117(2A) of the Act which are not as apposite to the facts in this case as might be in others.

6. The wife’s case is that she has been put to the cost of being represented today in these proceedings, the husband has been wholly unsuccessful, that a costs order ought to be made as a matter of justice in her favour.  A costs order is sought in the sum of $1600, that being four hours of work at a rate of $400 an hour.

7. In my view, a costs order should be made, albeit that there is not an identified fund from which the costs could be paid.  I do see that the husband would have a capacity to meet a costs order over time.  I am prepared to quantify the costs at $1000 and I will so order.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 9 June 2011.

Associate: 

Date:  17 June 2011