FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baumann & Tanev (No 3) [2023] FedCFamC1F 593
File number(s): MLC 11841 of 2021 Judgment of: MCNAB J Date of judgment: 5 July 2023 Catchwords: FAMILY LAW – Stay of orders – insufficient detail in grounds and submissions to determine whether the appellant has arguable grounds in respect of but one ground – insufficient evidence of capacity to satisfy the terms of a stay on conditions – application dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Philkin & Philkin (No 3) [2021] FedFamC1F 224
Division: Division 1 First Instance Number of paragraphs: 18 Date of last submission/s: 5 July 2023 Date of hearing: 5 July 2023 Counsel for the Applicant: Ms Ben-Simon Solicitor for the Applicant: Tyler Tipping Counsel for the Respondent: Mr Hannan Solicitor for the Applicant: Berry Family Law ORDERS
MLC 11841 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TANEV
Applicant
AND: MS BAUMANN
Respondent
order made by:
MCNAB J
DATE OF ORDER:
5 July 2023
THE COURT ORDERS THAT:
1.The Amended Application in a Proceeding filed on 26 June 2023 be dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $5,100, with such costs payable by 26 July 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Baumann & Tanev has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
(Revised from Transcript)McNab J:
INTRODUCTION
This is a matter of an Amended Application in a Proceeding filed 26 June 2023 by the applicant Mr Tanev (“the father”) against Ms Baumann (“the mother”). The father seeks a stay of the final orders made on 3 May 2023 in the following terms:
That Orders 4-11, 17-34, 37-39, 46-66 of the Final Orders dated 3 May 2023 be stayed pending the outcome of the Notice of Appeal NAA150 of 2023.
The final orders provided in summary that the mother be permitted to relocate with the three children of the marriage to Country B at the end of 2024 and that the matrimonial assets be divided 56.5/43.5 in favour of the wife.
The grounds of appeal filed 31…
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- Case
- [2023] FedCFamC1F 593
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Trial Justice's decision warranted a stay pending the appeal. This involved assessing the merits of the father's grounds for appeal, the potential risks of not granting a stay, and the balance of convenience between the parties. The court considered the discretionary nature of such applications and the principles guiding them, including the onus on the applicant to establish a proper basis for a stay, the presumption of correctness of the judgment, and the need to weigh the risks of rendering an appeal nugatory if a stay was not granted.
After thorough consideration, the court found that the father had not established a proper basis for a stay. The court concluded that the filing of an appeal alone was insufficient and that the applicant needed to demonstrate a more compelling reason to warrant a stay. The court also noted that the father had not provided sufficient evidence to suggest that the appeal had a strong likelihood of success or that significant prejudice would result if the stay was not granted. Consequently, the application for a stay was dismissed.
The court did not grant a stay pending the hearing of the appeal and the existing orders remained in effect.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The grounds of appeal filed 31 May 2023 are as follows: (1)The learned Trial Justice did not give sufficient weight to the recommendations made within the Family Report. (2)The Trial Justice did not give sufficient weight to the effect that the children’s relocation overseas will have on the father’s mental health. (3) The learned Trial Justice did not give sufficient weight to the impact that overseas travel will have on the father. (4) The learned Trial Justice did not give sufficient weight to the father’s inability to travel overseas. (5) The learned Trial Justice did not give sufficient weight to the father’s inability to work. (6) The learned Trial Justice did not give sufficient weight to the evidence of the father’s psychiatrist. (7) The learned Trial Justice did not account for a total non-superannuation split of 56.5%. (8) The learned Trial Justice failed to consider whether the father’s proposals for the children to spend equal or a substantial time with the father is in the child’s best interests. (9) The learned Trial Justice failed to consider whether it was reasonably practicable for the children to spend equal or substantial time with the father. (10) The learned Trial Justice failed to give weight to the father’s contributions.(11) The learned Trial Justice erred in assessing the parties’ future earning capacity. (12)The learned Trial Justice failed to take into account the practical difficulties of the father relocating to [Country B]. [1][1]Applicant’s Notice of Appeal filed 31 May 2023.CONSIDERATION In considering an application for a stay pending the hearing of an appeal, I have regard to the passage from Philkin & Philkin (No 3) [2021] FedFamC1F 224 at [6] - [7] which I have referred to the Court earlier, and also to the considerations in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]. Those authorities illustrate that the applications of this kind are discretionary in nature and they point to a number of principles to be applied in determining such an application. Those principals are as follows:(a)the onus is on the applicant to establish a proper basis to seek a stay; however, it is not necessary for the applicant to demonstrate any special or exceptional circumstances;(b)a person who has obtained a judgment is entitled to the benefit of that judgment; (c)a person who has obtained a judgment is entitled to presume that the judgment is correct; (d)the mere filing of an appeal is insufficient basis for the granting of a stay;(e)the applicant has the onus of establishing a proper basis for the stay;(f)consideration of whether the applicant’s application is bona fide where there has been delay in applying for the stay and/or where the time will elapse before the appeal can be heard;(g)a weighing of the risks that an appeal may be rendered nugatory if a stay is not granted, and this will be a substantial factor; and (h)some preliminary assessment of the strengths of the proposed appeal, whether the appellant has an arguable case; and(i)whether a stay may be granted on terms and this may involve weighing the balance of convenience and the competing rights of the parties.