Benham & Benham (No. 2)

[2021] FamCA 356

FAMILY COURT OF AUSTRALIA

Benham & Benham (No. 2) [2021] FamCA 356

File number(s):	SYC 8266 of 2020
Judgment of:	REES J
Date of judgment:	1 June 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings pending appeal – Application dismissed.
Cases cited:	Aldridge & Keaton [2009] FamCAFC 106
Number of paragraphs:	16
Date of hearing:	31 May 2021
Place:	Sydney
Counsel for the Applicant:	Mr Weightman
Solicitor for the Applicant:	Tonkin Drysdale Partners
Counsel for the Respondent:	Ms Druitt
Solicitor for the Respondent:	Wallbanks

ORDERS

SYC 8266 of 2020
BETWEEN:	MR BENHAM Applicant
AND:	MS BENHAM Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	1 JUNE 2021

THE COURT ORDERS:

1.That the husband’s application for a stay of Orders 2 and 3 made on 16 April 2021 is dismissed.

2.That the husband’s application to vary orders made on 16 April 2021 is referred to the registrar for directions.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benham & Benham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

REES J:

1. On 13 April 2021 I heard and subsequently determined an application for Orders relating, inter alia, to spousal maintenance and litigation funding between Ms Benham (“the wife”) and Mr Benham (“the husband”).

2. On 16 April 2021 the following orders (relevantly) were made:

   1.That, pending further order, the husband continue to pay the mortgage, rates and taxes, home building and contents insurance and the maintenance and repair of the property at D Street, Suburb E in the state of New South Wales; to pay the lease payments and insurance for the motor vehicle 1 registration … and to pay the family’s Health and Critical Illness/TPD Insurance.

   2.That, pending further order, the husband pay to the wife by way of spousal maintenance the sum of $1,190 per week.

   3.That the husband pay to the wife, by way of lump sum spousal maintenance the following amounts:     

   a.The sum of $30,000 not later than 16 May 2021.

   b.The sum of $30,000 not later than 16 August 2021.

   c.The sum of $30,000 not later than 16 November 2021.

   …

3. By a Notice of Appeal dated 12 May 2021 the husband seeks leave to appeal and if leave is granted to appeal against Orders 2 and 3 made on 16 April 2021.

4. The husband seeks a stay on terms that:

   (a)He pays to the wife $500 per week by way of spousal maintenance in addition to the payments referred to in order 1 made 16 April 2021; and

   (b)A dollar-for-dollar order in relation to the wife’s costs.

5. In relation to the husband’s proposal that the wife be paid $500 per week by way of spousal maintenance pending the determination of the appeal I note, firstly, that his discretionary expenses as set out at Part N of his Financial Statement sealed on 9 April 2021 are $1,893 per week. Why the wife’s reasonable expenses should be restricted to less than one third of the husband’s is not explained.

6. In relation to the husband’s proposed dollar-for-dollar order, that order does not take into account the fact that as at 13 April 2021 the husband had paid $106,392 by way of legal costs, those payments coming presumably from income, and neither does it take into account the fact that the husband, according to his affidavit sworn 21 May 2021 has paid since 13 April 2021 a further $22,200 in legal fees.

7. The principles applicable to the application for a stay are well known and are set out in the decision of the Full Court in Aldridge & Keaton [2009] FamCAFC 106 in the following terms:

   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 Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (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;

   •the desirability of limiting the frequency of any change in a child’s living arrangements;

   •the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   •the best interests of the child the subject of the proceedings are a significant consideration.

8. I am mindful, in determining this application, that the husband’s application for leave and to appeal are likely to be given a procedural hearing in October 2021 and the substantive appeal is likely to be dealt with in the first half of 2022. I am also mindful of the fact that the applications from which the husband appeals are interlocutory and that he will be required to seek leave to proceed with any appeal. In determining whether to grant a stay, the fact that the matter may not be resolved for up to 12 months is a relevant one. This is so in circumstances where the wife has no source of income other than the spousal maintenance ordered to be paid and where the husband has unilaterally diverted to himself the whole of the income of the marriage.

9. On behalf of the husband it is argued that the appeal may be rendered nugatory if a stay is not granted. I do accept this argument. In relation to the payment of spousal maintenance if, ultimately, the Full Court were to determine that the order for spousal maintenance should be set aside, then the fact that sums of money have been paid in excess of those which ought to have been paid is a matter that will be taken into account by the trial judge in the disposition of the substantive hearing.

10. Similarly in the event that the characterisation of the order for litigation funding is set aside on appeal it would not have the effect, as is submitted by counsel for the husband, that those funds would have been “lost”. Rather the trial judge would be free to deal with that payment in accordance with his or her discretion as one of the many relevant facts in the case.

11. Dealing firstly with the order for litigation funding it was the position of the husband on 13 April 2021 that the wife should receive litigation funding but that the payment should be limited to $50,000 in total and should be a payment by way of interim property settlement. At the time when the matter was heard the husband, according to his Financial Statement sworn on 9 April 2021 had $31,157 in a bank account, $3,081 in another account and a share portfolio valued at $31,189. The orders of 16 April 2021 required the husband to make the first payment of $30,000 to the wife not later than 16 May 2021. Notwithstanding the fact that he deposed to having funds available to make that payment, the husband chose not to do so, despite the fact that no stay had been granted of that order.

12. I further note that in the proceedings on 13 April 2021 the husband did not dispute his ability to pay the amount of maintenance which was sought by the wife, that amount being substantially more than ultimately she was awarded. At the time of the proceedings on 13 April 2021 it was the husband’s evidence that he had an excess of income over expenditure of more than $4,000 per week after payment of the amount of spousal maintenance which was ordered to be paid.

13. The effect of granting a stay of the orders would be to leave the wife unsupported as to her day to day financial needs, aside from the payments referred to in Order 1 made on 16 April 2021 and to leave the husband in a position where he can continue, as he has in the past, to pay his own legal fees out of his income but to deprive the wife entirely of any ability to pay her legal fees.

14. I do not consider that the husband has established that there is a proper basis to grant a stay of Orders 2 and 3 made on 16 April 2021 and therefore the application for a stay will be dismissed.

15. In the Application in a Case filed 24 May 2021 the husband, in addition to seeking a stay of Orders 2 and 3 made on 16 April 2021 sought a variation of Order 3.

16. I do not consider it appropriate to deal with that application in circumstances where the wife has been given no opportunity to file any evidence in opposition to it and I propose to refer that application to the registrar for directions.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       1 June 2021