Balaskas & Stratos (No 2)

Case [2021] FCCA 997

FEDERAL CIRCUIT COURT OF AUSTRALIA

Balaskas & Stratos (No 2) [2021] FCCA 997

File number(s): CAC 735 of 2020
Judgment of: JUDGE HOWE
Date of judgment: 14 May 2021
Catchwords: FAMILY LAW ­ Stay Application ­ whether a Stay should be granted – Stay sought in relation to litigation funding order - manifest inequity between parties
Legislation: Family Law Act 1975 (Cth) ss 79, 117
Cases cited:

Balaskas & Stratos [2021] FCCA 100

Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106

Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621

Rakete & Rakete [2012] FamCA 267

Sarti & Sarti & Anor (No.2) [2020] FCCA 2595

Number of paragraphs: 55
Date of hearing: 11 May 2021
Place: Canberra
Counsel for the Applicant: Dr J Behrens
Counsel for the Respondent: Mr G Richardson SC

ORDERS

CAC 735 of 2020
BETWEEN:

MR BALASKAS

Applicant
AND:

MS STRATOS

Respondent

ORDER MADE BY:

JUDGE HOWE

DATE OF ORDER:

14 MAY 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed by the wife on 16 February 2021 be dismissed.

2.Cost be reserved.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE HOWE:

Introduction

  1. The application for determination is an Application in a Case, filed by the wife on 17 February 2021 (‘the application’), seeking to Stay the payment of a $110,000 ‘ litigation funding order’[1] pursuant to s.117 (a) of the Family Law Act 1975, as made by Judge Neville on 28 January 2021. The Judgment and associated Orders of 28 January 2021 were decided by Judge Neville on the papers with both parties filing written submissions.

    [1]

  2. The application was listed for hearing on 11 May 2021, with each of the parties making oral submissions in addition to written submissions and other documents relied upon. The oral submissions of counsel, as well as the material below at paragraphs 11 and 12 should be taken as incorporated in these reasons

    Procedural History

  3. On 28 January 2021, his Honour Judge Neville delivered written judgment and made orders pursuant to s.117 of the Family Law Act1975 requiring the de facto wife (‘the wife’) to pay to the de facto husband (‘the husband’) the sum of $110,000 within 28 days. I acknowledge that the parties in this matter were never married however I have referred to them as the husband and the wife throughout these reasons for clarity and simplicity.

  4. The Orders dated 28 January 2021 also provided that:

    3. the costs of both parties in relation to litigation funding order application be reserved

    4. that within 21 days of the date of the orders being 17 February 2021 the parties are to advise the…

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AGLC
Balaskas and Stratos (No 2) [2021] FCCA 997
Case
[2021] FCCA 997
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the respondent wife for a stay of orders made by Judge Neville on 28 January 2021, following a de facto relationship of approximately 10 years. The wife had filed an appeal against those orders, which the court accepted was bona fide and that she had a genuine grievance. The parties' financial positions were significantly disparate, with the wife possessing assets exceeding $24 million and the husband's assets totalling approximately $15,000 with liabilities of $47,932.

The primary legal issue before Howe J was whether to grant the wife's application for a stay of the existing orders pending the determination of her appeal. This required the court to consider the established principles governing applications for a stay of discretionary judgments, particularly within the context of family law proceedings.

Howe J applied the principles outlined in *Aldridge v Keaton (Stay Appeal)* (2009) FamCAFC 106, which emphasise that an appellate court should be slow to interfere with a primary judge's discretionary decision unless it is plainly wrong. The court considered the onus on the applicant to establish a proper basis for the stay, the entitlement of a judgment holder to the benefit of their judgment, and the need to avoid rendering an appeal nugatory. The court also referred to the principles from *Gronow v Gronow* (1979) 144 CLR 513, highlighting that an appellate court should not substitute its own discretion for that of the trial judge merely because it would have arrived at a different conclusion, especially where the decision involves assessing the weight of evidence and the advantage of seeing and hearing witnesses.

The court ordered that the wife's Application in a Case filed on 16 February 2021 be dismissed, and costs were reserved.

Orders

Orders of the court

CAC 735 of 2020

BETWEEN:

MR BALASKAS

Applicant

AND:

MS STRATOS

Respondent

ORDER MADE BY:

JUDGE HOWE

DATE OF ORDER:

14 MAY 2021

THE COURT ORDERS THAT:

1. The Application in a Case filed by the wife on 16 February 2021 be dismissed.

2. Cost be reserved.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The de facto wife filed her appeal against the Judgment of Judge Neville and associated Orders dated 28 January 2021 within time, on 15 February 2021. I accept for present purposes that her appeal is bona fides and that she has a genuine grievance with the orders of 28 January 2021 and the reasons given for them.Factual background The parties in this matter were in a de facto relationship for approximately 10 years. There appears to be some dispute about various aspects of the relationship. Those issues may require further determination, however, that material is not before me for the purpose of this Application, nor is it relevant. Much of the background to this matter is canvassed in the Judgment of Judge Neville dated 28 January 2021 and I need not repeat that history here. Stated summarily, the following aspects of the matter are not disputed: (a)the husband is 45 years of age and the wife is 55 years of age (b)the wife is a significantly wealthy woman and it appeared to be uncontentious that her assets, inclusive of superannuation, have an estimated value in excess of $24 million(c)As detailed in his financial statement filed 23 April 2020, the husband submits that his asset pool is modest, totalling $15,000, inclusive of superannuation, with liabilities of $47, 932. It is noted that the wife also contends that the de facto husband may have assets outside of the jurisdiction but as yet, this has not been tested.Evidence and submissions The wife relied upon the following material at the hearing of 11 May 2021:(a)the Judgment of Judge Neville dated 28 January 2021(b)the Application in a Case filed by the wife on 16 February 2021(c)the Affidavit of the wife filed 16 February 2021(d)the Undertaking of the wife filed 7 May 2021 (e)Response to Initiating Application filed 6 May 2020 (f)the written advice of the wife emailed to the Court on 21 September 2020 (g)the Case Summary document and Costs Notice of the husband filed 6 May 2021 (h)the Affidavit of the husband filed 23 October 2020 with particular reference to paragraphs 47 to 51(i)the Case Summary document of the wife filed 6 May 2021 The husband relied upon the following material at the hearing of 11 May 2021:(a)the Case Summary document and Costs Notice of the husband filed 6 May 2021(b)the Judgment of Judge Neville dated 28 January 2021(c)the Affidavit of the husband filed 23 October 2020Consideration of legal principles In considering the Application for a Stay as sought by the respondent wife, the relevant principles are as set out by their Honours Bryant CJ, Boland & Crisford JJ in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106 at [17] – [18] as follows:17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;· a person who has obtained a judgment is entitled to the benefit of that judgment;· a person who has obtained a judgment is entitled to presume the judgment is correct;· the mere filing of an appeal is insufficient to grant a stay;· the bona fides of the applicant;· a stay may be granted on terms that are fair to all parties -- this may involve a court weighing the balance of convenience and the competing rights of the parties;· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted -- this will be a substantial factor in determining whether it will be appropriate to grant a stay;· some preliminary assessment of the strength of the proposed appeal -- whether the appellant has an arguable case;

Evidence

Evidence Before The Court

It is noted that the wife also contends that the de facto husband may have assets outside of the jurisdiction but as yet, this has not been tested.Evidence and submissions The wife relied upon the following material at the hearing of 11 May 2021:(a)the Judgment of Judge Neville dated 28 January 2021(b)the Application in a Case filed by the wife on 16 February 2021(c)the Affidavit of the wife filed 16 February 2021(d)the Undertaking of the wife filed 7 May 2021 (e)Response to Initiating Application filed 6 May 2020 (f)the written advice of the wife emailed to the Court on 21 September 2020 (g)the Case Summary document and Costs Notice of the husband filed 6 May 2021 (h)the Affidavit of the husband filed 23 October 2020 with particular reference to paragraphs 47 to 51(i)the Case Summary document of the wife filed 6 May 2021 The husband relied upon the following material at the hearing of 11 May 2021:(a)the Case Summary document and Costs Notice of the husband filed 6 May 2021(b)the Judgment of Judge Neville dated 28 January 2021(c)the Affidavit of the husband filed 23 October 2020Consideration of legal principles In considering the Application for a Stay as sought by the respondent wife, the relevant principles are as set out by their Honours Bryant CJ, Boland & Crisford JJ in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106 at [17] – [18] as follows:17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;· a person who has obtained a judgment is entitled to the benefit of that judgment;· a person who has obtained a judgment is entitled to presume the judgment is correct;· the mere filing of an appeal is insufficient to grant a stay;· the bona fides of the applicant;· a stay may be granted on terms that are fair to all parties -- this may involve a court weighing the balance of convenience and the competing rights of the parties;· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted -- this will be a substantial factor in determining whether it will be appropriate to grant a stay;· some preliminary assessment of the strength of the proposed appeal -- whether the appellant has an arguable case;

Decision

Reasons for decision

I refer to his Honour Judge Neville’s helpful summary of the law relating to Stay Applications in the matter of Sarti & Sarti& Anor (No.2) [2020] FCCA 2595 at [20] to [23] (footnotes omitted):I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all. In the same case, Aickin J said (at pp.537-538) (Mason and Wilson JJ agreeing at p.526) (emphasis added):Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 CLR, at p 533 : “The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.” It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.I also remind myself of the observations by Kirby J in CDJ v VAJ, where his Honour said, at [185, par.2] (internal citations omitted; emphasis added):Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.To similar effect and emphases are the comments in Sigley v Evor where the Full Court said (at [128] – [129]; emphasis added)):Discretionary judgment[128] This is an appeal against a discretionary judgment and the principles to be applied are well established: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.[129] We are mindful of the position of the Federal Magistrate in relation to complaints about assessment of weight where no error of law or fact is obvious: see Gronow v Gronow at 519-20 per Stephen J. We are also mindful of the necessity to avoid “an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved”: see AMS v AIF (1999) 199 CLR 160 per Kirby J at 211; A v J (1995) 19 Fam LR 260 at 269 per Full Court (Fogarty, Lindenmayer and O’Ryan JJ) and Rollings v Rollings (2009) 230 FLR 396 per Full Court (Boland, O’Ryan and Murphy JJ).

Ratio Decidendi

Legal Principle Established

The husband relied upon the following material at the hearing of 11 May 2021:(a)the Case Summary document and Costs Notice of the husband filed 6 May 2021(b)the Judgment of Judge Neville dated 28 January 2021(c)the Affidavit of the husband filed 23 October 2020Consideration of legal principles In considering the Application for a Stay as sought by the respondent wife, the relevant principles are as set out by their Honours Bryant CJ, Boland & Crisford JJ in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106 at [17] – [18] as follows:17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;· a person who has obtained a judgment is entitled to the benefit of that judgment;· a person who has obtained a judgment is entitled to presume the judgment is correct;· the mere filing of an appeal is insufficient to grant a stay;· the bona fides of the applicant;· a stay may be granted on terms that are fair to all parties -- this may involve a court weighing the balance of convenience and the competing rights of the parties;· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted -- this will be a substantial factor in determining whether it will be appropriate to grant a stay;· some preliminary assessment of the strength of the proposed appeal -- whether the appellant has an arguable case; I refer to his Honour Judge Neville’s helpful summary of the law relating to Stay Applications in the matter of Sarti & Sarti& Anor (No.2) [2020] FCCA 2595 at [20] to [23] (footnotes omitted):I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all. In the same case, Aickin J said (at pp.537-538) (Mason and Wilson JJ agreeing at p.526) (emphasis added):Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 CLR, at p 533 : “The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.” It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.I also remind myself of the observations by Kirby J in CDJ v VAJ, where his Honour said, at [185, par.2] (internal citations omitted; emphasis added):Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.To similar effect and emphases are the comments in Sigley v Evor where the Full Court said (at [128] – [129]; emphasis added)):Discretionary judgment[128] This is an appeal against a discretionary judgment and the principles to be applied are well established: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.[129] We are mindful of the position of the Federal Magistrate in relation to complaints about assessment of weight where no error of law or fact is obvious: see Gronow v Gronow at 519-20 per Stephen J. We are also mindful of the necessity to avoid “an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved”: see AMS v AIF (1999) 199 CLR 160 per Kirby J at 211; A v J (1995) 19 Fam LR 260 at 269 per Full Court (Fogarty, Lindenmayer and O’Ryan JJ) and Rollings v Rollings (2009) 230 FLR 396 per Full Court (Boland, O’Ryan and Murphy JJ).