Baumann & Tanev (No 3)
[2023] FedCFamC1F 593
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 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.
The husband by his counsel submitted that the grounds of appeal are, effectively, a holding position and that further detail will be given when a summary of argument is filed on 9 August 2023 in accordance with procedural orders made on 26 June 2023. It was submitted that there had been a delay in obtaining the transcript of the hearing which explained the lack of detail in the grounds and in the submissions in support of a stay. The husband relies on an affidavit affirmed on 21 June 2023 which referred to irrelevant matters that have occurred between the parties since 3 May 2023 or were the expression of inadmissible opinion evidence.
The wife relied on an affidavit sworn by her on 30 June 2023. Relevantly the wife gives evidence that since the final orders were made the husband has stopped paying spousal maintenance leaving her to continue to have to make the mortgage payments on the former matrimonial home. The wife also relied on an outline of case.
There are no submissions filed in support of this application for a stay and no oral submission which gave any substance or detail as to what particular error was evident in each of the 12 grounds, save the specific references to the Ground 7 in oral submissions. There has been no reference to any evidence within the Family Report which the Court failed to have regard to. Similarly, there was no evidence put forward for each of the balance of the 11 grounds which are effectively a challenge to the weight accorded to particular matters.
The husband complained that he had not received the wife’s affidavit and outline which were forwarded to the offices of his solicitors on 3 July 2023. There is an email which is Exhibit R1 which shows that the documents were forwarded to that firm to an email address used by the firm in relation to these proceedings. The documents were forwarded to the Court on the same day and filed with the Court. I accepted that those documents were forwarded to an email used by the husband’s solicitors on 3 July 2023. In any case, the outline of case is conventional in the sense that it refers to the authorities ordinarily referred to in applications of this kind. The outline of case refers to matters known to both parties.
The wife’s outline of case makes plain that when at trial both the wife and the husband were contending for the wife to retain the former matrimonial home where she resides, with the children in Suburb D, with the father to pay out the mortgage on that property. That was to occur irrespective of whether the court made the orders sought by either party in relation to property. The husband is now seeking, effectively, a stay of orders which included an order for the payment of those monies. The order that the husband pay to discharge the mortgage is plainly not going to be subject to the appeal or dealt with at appeal because he has agreed to that irrespective of whether the court made orders in relation to property as sought by him or those sought by the wife.
The father’s application sought that orders in relation to the superannuation split be stayed when these orders were entirely in line with what he was seeking at trial. That the father is seeking to appeal that order does call into question the bona fides of that part of the appeal and the appeal generally when the grounds have been drawn in such general terms.
The husband has submitted there is an error on the face of the judgment by reference to [265] of the reasons where I make orders that non-superannuation assets be distributed 56.5/43.5 per cent in favour of the mother, which is said not to accord with the findings in relation to contributions that I have made in the evaluation of section 75(2) factors, in particular, at [264] of the judgment.
However, it was submitted by counsel for the wife that when [265] is then read in conjunction with [267] and [268], it may be that any discrepancy or arithmetical error is one that is in favour of the husband rather than the wife. I accept that there is an arguable ground of appeal in relation to this part of the judgment and orders, but in my view, that is not sufficient basis now to grant a stay of the orders as sought. Even if there is an error, the husband on his own case is required to pay out the mortgage on the former matrimonial home and he has taken no steps to do that which is causing prejudice to the wife.
The husband contends that if he was required to pay the monies due under the orders, which is the sum of about $927,000, he would be required to sell a number of pieces of land which are adjacent to the land that he has, which would then render his business impracticable or impossible because of a lack of resources. The evidence in support of that is simply his opinion. In my view this does not establish the matters that he contends for.
If the monies were paid to the wife, then there would be sufficient assets or sufficient value in the house at Suburb D for the monies to be recovered through that or traced through that if it was found on appeal that the wife should receive less than what was ordered. The wife has made a proposal that the wife hold, in the Berry Family Law trust account, pending resolution of the appeal or further order, any amount of the payment received by the wife pursuant to those orders which is in excess of the amount applied to (1) paying out the home loan secured over the former matrimonial home. The effect would be that once the mortgage is paid from monies paid by the husband, any fund in excess of the mortgage would be held in trust pending the outcome of the appeal.
Counsel for the husband stated that the she had instruction from the husband to consent to orders that the mortgage be paid by him and that the superannuation splitting orders be given effect to as a condition of a stay pending appeal. However, there has been no proposal from the husband as to when the payment was to be made and what would occur in the period pending payment of the mortgage. The Court is not prepared to make an order in those terms in the absence of a clear proposal from the husband. It is a matter for the husband’s solicitors to approach the wife’s solicitors and come to some accommodation, if that be possible, so as to avoid the sale of his properties, but it is not feasible for the Court to start constructing orders granting a stay on terms when the Court is not aware of essential matters such as when the mortgage will be paid by the husband as a condition of any stay.
I note that the judgment was the subject of final orders on 3 May 2023. The Notice of Appeal was filed on 31 May 2023, so 28 days after the orders were made. The transcript was obtained on 13 June 2023, and I refer to the father’s affidavit, and we are now at 5 July 2023 when there has been, in my estimation, sufficient time to review the transcript and actually review the grounds of appeal and formulate proper submissions to support the grant of a stay. In my view, there is simply insufficient material here before me in order to meet the threshold of being in a position to determine whether there are arguable matters raised save for Ground 7 which I have discussed. In these circumstances, I dismiss the application for a stay pending appeal.
COSTS
The wife sought costs, including costs of an indemnity basis, on the grounds that the husband had failed to articulate a proper basis for the grant of a stay and that he had ignored offers that might have resolved the application. This is not an appropriate case for solicitor/client costs or indemnity costs to be paid. I think it is concerning that the appellant has not clearly indicated before today that the parenting orders were not sought to be stayed, and if there was a proposal to pay the mortgage to give effect to the superannuation splitting order, that should have been arranged prior to today. The basis of the mortgage payment is well and truly known to the father and it would have been apparent to him and his solicitors that whatever the result in the appeal that he is going to be paying the mortgage. The husband has been wholly unsuccessful in this application and he failed to take up reasonable written proposals to deal with the stay application prior to the hearing. For those reasons, I will dismiss the Amended Application in a Proceeding and order that the husband/appellant pay the wife’s party/party costs of this application fixed in the sum of $5,100.
This is an interlocutory application and the dismissal of this application does not preclude the husband from making a fresh application for a stay supported by material that demonstrates reasonably arguable grounds of appeal and which sets out the basis of orders for a stay to be granted on terms such as the payment of the mortgage on the former matrimonial home pending the hearing of the appeal.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 19 July 2023
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