Balen and Jackson (No.2)
[2009] FMCAfam 555
•14 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALEN & JACKSON (NO.2) | [2009] FMCAfam 555 |
| FAMILY LAW – Practice & procedure – stay application. |
| Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Brown & Brown (unreported) [2006] FamCA 44 Dmitrieff & Shaw and Ors (No.2) [2008] FamCA 992 Kruger & Kruger [2009] FamCA 228 Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 |
| Applicant: | MS BALEN |
| Respondent: | MR JACKSON |
| File Number: | SYC 5684 of 2008 |
| Judgment of: | Sexton FM |
| Hearing date: | 14 May 2009 |
| Date of Last Submission: | 14 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Flintoff Lawyers |
| Counsel for the Respondent: | Ms R. Winfield |
| Solicitors for the Respondent: | Eleanor Murphy & Co |
ORDERS
The husband’s application for a stay filed on 12 May 2009 be dismissed.
The wife’s costs be reserved to final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Balen & Jackson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5684 of 2008
| MS BALEN |
Applicant
And
| MR JACKSON |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
These Reasons are delivered orally.
This case concerns an application for a stay of orders made on 9 April 2009, providing for the husband to pay periodic and lump sum spouse maintenance to the wife on an interim basis.
On 9 April 2009, the Court ordered the husband to pay to the wife by way of periodic spouse maintenance the sum of $650 per week, or $2,817 per calendar month, and $43,000 by way of a lump sum spouse maintenance payment, such sum to be paid by no later than 30 April 2009. The Orders further provided that the amount of lump sum maintenance would be reduced by $20,000 if the husband delivered to the wife furniture and personal effects held by the husband in storage in Australia within 21 days of Order. The Court gave the husband a further extension of time to file and serve his Response, affidavit in support and financial statement, and adjourned the matter to 19 June 2009 for further mention in relation to the wife's final application for property and spouse maintenance.
On 12 May 2009, the husband made an application to stay Orders 5, 6 and 7 in relation to payment of interim periodic maintenance and lump sum spouse maintenance. The husband's legal representative was directed to serve this application upon the wife's legal representative by 2.00p.m. on 13 May 2009, and the matter was listed before me today. The husband was represented by Ms Winfield of Counsel and the wife by Ms Flintoff, solicitor, who also represented the wife in the interim proceedings.
In relation to these proceedings, the husband relies on an Application in a Case filed on 12 May 2009, an affidavit of his legal representative, Ms Eleanor Murphy, filed on 12 May 2009, and an unfiled affidavit and financial statement of himself sworn on 13 May 2009. Ms Murphy annexes to her affidavit a Notice of Appeal filed on 1 May 2009 setting out five grounds of appeal, to which I will refer shortly.
Relevant law
The authorities make clear the matters to which I must have regard when considering an application for a stay pending an appeal. I refer in particular to the New South Wales Court of Appeal decision of Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685, but there have been a number of recent authorities confirming the principles to be applied[1].
[1] See also Dmitrieff & Shaw and Ors (No.2) [2008] FamCA 992; Kruger & Kruger [2009] FamCA 228.
The question of whether or not to grant a stay is a discretionary one. The authorities say a stay should not be ordered as a matter of right or as a matter of course. The New South Wales Court of Appeal in Alexander’s case discussed the principles relevant to the exercise of the discretion. It was held that a Court may grant a stay where the applicant for the stay demonstrates “a reason or an appropriate case to warrant the exercise of the discretion in his favour”[2]; it is not necessary that special or exceptional circumstances should be made out[3]. The Court of Appeal further held that each case must be decided on its merits. Her Honour Justice Boland in the recent decision of Dmitrieff & Shaw and Ors (No.2)[4] applied these principles in an application for a stay of an interlocutory property order pending an application for leave to appeal.[5]
[2] At 694 of Alexander’s case
[3] See also the unreported judgment of O’Ryan J in Brown & Brown [2006] FamCA 44
[4] [2008] FamCA 992
[5] See also Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 where Bryson JA said at paragraph 18 in relation to an application for a stay of an interlocutory order pending an application for leave to appeal that “ the power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy, or otherwise so adversely severe in its impact, that intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration.”
The onus is upon the applicant to demonstrate a proper basis for a stay. This onus may be higher in circumstances where the stay is in relation to an interlocutory order pending an application for leave to appeal[6].
[6] Boland J in Dmitrieff & Shaw and Ors (No.2) [2008] FamCA 992 at paragraph 14
I have regard to her Honour Justice Boland’s decision in Dmitrieff & Shaw and Ors [No.2] in outlining the guiding principles to be applied in stay proceedings[7].
[7] At paragraph 12
1.Whether refusing a stay will render a successful appeal nugatory or make it impossible or impracticable to restore the position;
2.Any hardship that would be suffered by each party as a result of granting or refusing a stay;
3.The grounds and merits of the appeal;
4.The mere filing of an appeal is not sufficient to ground a stay;
5.Whether there has been a delay in applying for the stay;
6.The bona fides of the applicant for the stay;
7.The timing of the appeal;
8.A person who has obtained a judgment is entitled to the benefit of that judgment; and
9.A person who has obtained a judgment is entitled to assume the judgment is correct.
Whether refusing a stay will render a successful appeal nugatory or make it impossible or impracticable to restore the position.
Ms Winfield for the husband submits that refusing a stay will render a successful appeal nugatory or make it impracticable to restore the position. Ms Winfield submits that the husband has insufficient assets to meet the lump sum order, and will therefore be required to borrow funds or sell assets to pay the sum ordered.
Ms Flintoff for the wife submits that the husband's evidence could not satisfy me as to that assertion. Ms Flintoff submits that the husband's financial statement, not yet filed, but sworn on 13 May 2009 and made available to the wife's solicitor and to the Court, and relied on by the husband, discloses the husband has sufficient funds to meet the lump sum order, given he deposes to owning two cars with a total value of nearly $30,000, funds in the bank of nearly $30,000 and a share portfolio with a value of $43,000, in addition to the properties he owns. I accept Ms Flintoff's submission on this point. It is also noteworthy that, although referred to in the husband’s solicitor’s affidavit sworn on 11 May 2009, the husband himself does not refer to the furniture and personal items about which the wife gives evidence in her affidavit sworn on 6 February 2009, and which he is given the option to release to the wife in lieu of part of the lump sum payment, being the sum of $20,000.
This is an interlocutory order and the Court is yet to determine on a final basis the property distribution between the parties. Any payment made now to the wife by the husband must, in accordance with law, be characterised as a contribution made by him post-separation in the property proceedings when they are heard, and will necessarily be taken into account in the final property determination, whether or not the appeal is successful. This would be the case whether or not any Order had ever been made for interim spouse maintenance and the husband had made those payments voluntarily. I am therefore not satisfied that refusing a stay will render a successful appeal in this case nugatory.
Any hardship that would be suffered by each party as a result of granting or refusing a stay.
Ms Winfield contends that if I refuse the stay the husband will suffer hardship. Ms Winfield submits that the husband has lost his job since the interim orders were made. Counsel submits that he has the care of the parties' child, and is dependent on rental income of $923 a week and dividend returns of $125 a week. The husband, in his affidavit sworn on 13 May 2009, deposes to being now unemployed. However, as submitted by Ms Flintoff, the husband adduces no independent evidence from his employer and no evidence as to any termination or redundancy payment he may have received as a result of his lost employment. Further, the husband's solicitor in her affidavit says the husband is still in discussions with his former employer.
I have no confidence in the accuracy of the husband's Form 13. The husband deposes to expenses of $6,377 weekly, which includes $3,016 a week for day to day expenses which are not explained. Part N of his Form 13 is left blank, where those figures making up the day to day expenses should have been itemised. The husband deposes in his Form 13 to a net asset position of $162,020, excluding superannuation. However, on my calculations the totals to which he deposes are inaccurate. In addition, the husband deposes to having paid $700 weekly towards his wife's living and health care expenses since January 2008. I can make no sense of that item. Ms Winfield was unable to assist me in relation to the difficulties I have referred to in the husband's Form 13.
It is noteworthy that the husband did not file a Form 13 in the proceedings for interim spouse maintenance, the orders from which he now appeals, and simply stated in his affidavit, relied on in those proceedings, that he had the capacity to meet an order for spouse maintenance if such an order was made by the Court. The wife gave evidence as to the parties' lavish lifestyle during their marriage and to her understanding of the husband's substantial earnings and assets. I referred to the wife's evidence in my Reasons for judgment delivered on 9 April 2009. Further, the wife’s solicitor tells the Court the husband has been meeting the periodic maintenance orders since the orders were made in April 2009. For the reasons I have outlined, I am unable therefore to make findings now as to the husband's actual financial position.
However, on the extensive affidavit evidence of the wife in the interim spouse maintenance proceedings, I have made findings as to the paucity of the wife's financial position. I was satisfied the wife was dependent on Centrelink payments, had almost no savings and no other financial resources available to her. There is also no issue raised in these proceedings that the husband does not have complete control over all of the parties' assets.
On balance, I am satisfied the wife will experience greater hardship if I grant the stay, than the husband will experience if I refuse the stay.
The grounds and merits of the appeal.
The Notice of Appeal has been filed and sets out five grounds of appeal. I refer to those now:
1.Her Honour erred in not finding the Applicant was at the time of making the orders living in a de facto relationship with Mr B and had done previously both in Australia and in Poland.
2.Her Honour erred in making a spousal maintenance order in circumstances where the Applicant was at the time of the making of the order for spouse maintenance living in a de-facto relationship.
3.Her Honour erred in that the amount ordered by way of periodic spouse maintenance was excessive.
4.Her Honour erred in not finding that the wife was being supported by Mr B.
5.Her Honour erred in making an order for lump sum maintenance as such order was not required for her support and in effect amounted to a property order.
In relation to Grounds 1, 2 and 4, which concern the issue of the wife's alleged de-facto relationship with Mr B, Mr B was on affidavit in the proceedings and was not required by the husband's side for cross-examination. Both Mr B and the wife deposed to no de-facto relationship existing between them, and to Mr B, in any event, not being in a position to support the wife financially. I set out my Reasons in detail for finding that Mr B and the wife were not in a de-facto relationship and that the wife could not depend on any financial support from Mr B. It is difficult to see where I erred in making these findings on the evidence that was before me.
The next ground of appeal, being Ground 3, concerns the amount of periodic spouse maintenance ordered being excessive. The husband deposed to being in a financial position to meet any order the Court was minded to make. In her affidavit evidence, the wife set out her weekly expenses, and I made findings as to the reasonableness of those expenses. I did not allow all the expenses the wife set out in that affidavit evidence. I set out my Reasons for reaching the conclusion that the wife needed $650 a week. I found the wife had no other income to offset those expenses, apart from a Centrelink benefit to which I was unable to have regard in accordance with the law. It is difficult to see on the evidence that was before me how that periodic amount could be seen to be excessive.
The final ground of appeal, being Ground 5, concerns the lump sum maintenance order I made. Again, I made it clear in my Reasons why I found it appropriate to make a lump sum order for the wife's maintenance. That lump sum order related to my finding that the wife needed a car and that the wife needed furniture and moneys to pay a bond and rent in advance. I set out the basis upon which I reached the precise amount ordered by way of lump sum maintenance. I gave the husband the option to reduce that amount by $20,000, by making certain furniture and personal items available to the wife. It was not the subject of challenge in the proceedings that the furniture and those items did not exist, or had not been stored by the husband. I referred in my Reasons to the authorities which make it clear that I have a discretion to order a lump sum amount for spouse maintenance. Given the husband, who was legally represented, chose not to adduce any evidence of his specific financial position, which was his choice, it is difficult to see where the error has occurred.
I am not satisfied the grounds of appeal disclose any appealable error which would support the granting of a stay.
Whether there has been a delay in applying for the stay.
There has been no delay in the husband filing the Application for a Stay.
The bona fides of the applicant for the stay.
I have no reason to question the bona fides of the husband.
The timing of the appeal.
The husband adduces no evidence as to when the appeal is likely to be heard, and Ms Winfield says she has been given a return date for the appeal “yet to be advised”. Council did not refer to any inquiries made on behalf of the husband with the Appeals Registrar. I do not know whether this appeal is likely to be heard before the final determination of the wife's final application for financial orders.
Conclusion
As earlier noted in these Reasons, the question of whether to grant a stay is a discretionary one. As I have already said, the onus is on the applicant to demonstrate a proper basis for a stay. The mere filing of an appeal will not of itself provide a reason for a stay or, of itself, discharge the onus which the applicant bears.
It is a long established principle that a person who has obtained a judgment is entitled to the benefit of that judgment. On balance, having regard to the matters I have dealt with in these Reasons, I am not satisfied the circumstances in this case warrant a stay being granted.
The husband’s application is therefore dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 14 May 2009
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