Bonnett and Bonnett (No. 2)

[2021] FamCA 381

FAMILY COURT OF AUSTRALIA

Bonnett & Bonnett (No. 2) [2021] FamCA 381

File number(s):	NCC 3644 of 2017
Judgment of:	CLEARY J
Date of judgment:	9 June 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Orders – Application by the husband for a stay of all orders related to adjustment of interests in property including superannuation, departure from child support and spouse maintenance pending determination of an appeal – Where the husband’s employment circumstances have changed – Where the husband failed to disclose at trial and prior to delivery of judgment that his employment would be terminated and his income would cease – Where granting a stay could create an injustice or at least impose hardship on the wife – Where the appeal would not be rendered nugatory if the stay was not granted – Application dismissed.
Legislation:	Family Law Act (Cth) 1975
Number of paragraphs:	52
Date of hearing:	4 June 2021
Place:	Newcastle
Solicitor for the Applicant:	Evans Brandon Family Lawyer
The Respondent:	Self-Represented

ORDERS

NCC 3644 of 2017

BETWEEN:

MR BONNETT

Applicant

AND:

MS BONNETT

Respondent

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	9 JUNE 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed by the husband on 11 May 2021 is dismissed.

2.The Response to an Application in a Case filed by the wife on 31 May 2021 is dismissed.

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 Bonnett & Bonnett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CLEARY J

INTRODUCTION

1. This matter came before me on 4 June 2021.

2. By an Application in a Case filed on 11 May 2021, the husband Mr Bonnett seeks a stay of the operation of all 13 final orders made by this Court on 27 April 2021 (“the April 2021 orders”).

3. The trial had been conducted on 11 December 2020. On that day orders were made by consent for sale of several jointly owned properties. The remaining issues related to adjustment of interests in property including superannuation, departure from child support and spouse maintenance.

4. By her Response to an Application in a Case filed 31 May 2021, the wife Ms Bonnett opposes the stay. She seeks an order for dismissal of the application.

   THE APPEAL BY THE HUSBAND

5. On 6 May 2021 the husband filed a Notice of Appeal against the April 2021 orders.

6. This application was filed in a timely way before me as the trial judge.

7. Filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from.  The onus rests with the applicant to justify the stay being granted.

   EVIDENCE 

8. The documents relied on by the parties are as follows:

   For the husband:

   (a)An Application in a Case by the husband filed 11 May 2021;

   (b)Affidavit of the husband filed on 11 May 2021;

   (c)Submissions on behalf of the husband provided to the wife and my associate on 3 June 2021;

   [NOTE: The husband did not file a financial statement.] 

   For the wife:

   (d)Reply to an application in a case filed 31 May 2021;

   (e)Affidavit of the wife filed 31 May 2021;

   (f)Financial Statement of the wife filed 31 May 2021.

   Withholding of information

9. There is a profoundly unsatisfactory element to the application of the husband in relation to disclosure. In his affidavit filed in support of this stay application, the following information is provided:

   ·That on 29 January 2021, the applicant husband was notified by his employer that his employment would be terminated;[1]

   ·That on 2 February 2021, the husband was provided with written confirmation of his termination commencing 29 January 2021 with three months “gardening leave”.[2]  

   [1] Affidavit of the husband filed 11/05/2021, Annexure A.

   [2] Ibid.

10. Solicitor for the husband confirmed the interpretation of the Court that “gardening leave” means paid leave with the employee not to attend the workplace.

11. The letter confirmed that the husband would be bound to the terms and conditions of his employment in his contract.  He was also reminded of post-employment restraint of trade provisions.

    Relisting after trial - 23/03/2021

12. After the trial the matter was then relisted by the Court on 23 March 2021.  The purpose was, before the balance of issues in dispute were determined by the Court, for confirmation or otherwise that:

    (i)Properties about which orders had been made by consent had, in fact, been sold;

    (ii)If sold, the net proceeds of sale.

13. On that day in March 2021 the solicitor for the father did not advise the Court of the change in his client’s circumstances.  The change being that his employment had been terminated and that his income would cease from 2 May 2021.

14. During submissions in this stay application the Court asked the solicitor for the husband why the Court had not been advised of that information at the relisting.

15. The solicitor’s response was that the husband had not told his solicitor of his termination.  The solicitor did not know about it.  The solicitor only learned of the termination of employment during the course of preparation of this stay application. 

16. The solicitor had apparently asked his client why he had not told the solicitor on the earlier occasion.  The husband is reported to have said that he did not want to “waste time” making a variation application.  He just wanted to “get on with” the stay application.

17. It is incomprehensible that the husband chose not to reveal to his solicitor and to this Court in March 2021 that his income would cease after 2 May 2021.  The question arises “How could he afford not to disclose it?”

18. On this issue the wife submitted that the affidavit of the husband in this stay application also revealed that his employment was being supervised as long ago as September 2020.[3]

    [3] Affidavit of the husband filed 11/05/2021, Annexure B.

19. The husband made no reference to that circumstance in the trial on 11 December 2020, although he must have been concerned about the possibility of termination in those circumstances.

20. The husband’s affidavit[4] sets out applications for employment he has been making which commence in October 2020, three months before he was given notice of termination. 

    [4] Affidavit of the husband filed 11/05/2021, Annexure C.

21. It is a reasonable point for the wife to make given what is now known.

22. In the reasons for judgment, it is explicitly stated that both spouse maintenance orders and child support departure orders were based on the income of the husband $4855 weekly gross income, net $3089.[5]

    [5] Bonnett & Bonnett [2021] FamCA 225 at [98].

23. The history in the reasons includes the employment history of the husband.  By 2005 he was earning $180,000 plus bonuses.  In 2007 the parties together had a combined income of $338,000 with the husband earning more.  By 2011 the husband was earning $345,000 per annum.  Between July 2018 and early 2019, the husband had a period of unemployment.  At trial in December 2020, his gross weekly income was approximately $250,000 per annum.  There may have been bonuses.

24. On behalf of the husband, a concession was made at trial that the wife had the need for support and that there was also an acknowledgement that the husband had the capacity to pay child support and spouse maintenance, although a submission was made that the Court should take into account the husband’s other obligations.

25. The husband, at 47, has been ambitious and successful and appears to wish to continue a career.  His failure to disclose his financial circumstances creates doubt about the willingness of the husband to be candid and meet his obligations for financial disclosure and employment in future. In the likely event that the husband does find employment, especially if it is as well remunerated as previous income, the Court could not be confident that he would tell his legal advisers, the wife, or the Court.

26. For this application the husband did not file a Financial Statement in support of the stay.  He was asking the Court to stay all orders with no proposal for adjustment for circumstances. His indifference to making an application to vary current orders is suggestive of his having found new employment although that may not be the case.

27. The Court required the solicitor for the husband to provide information about moneys paid in by the husband or on his behalf from the time current solicitors came on the record.  The trust records became available during the course of the day and were marked as Exhibit 1.

28. The professional relationship between the husband and his solicitors commenced on 16 June 2020.  The sum of $23,000 has been paid into that account since that date.

    Legal representation

29. On 24 June 2020, the parties both presenting as self-represented, had the financial benefit of a judicial mediation by a judge in another registry by video link of their parenting dispute which resulted in consent orders.  By that day, the husband had, in fact, instructed solicitors, but did not instruct them to appear.

    Trial directions - 26/08/2020

30. On 26 August 2020, both parties appeared before me, each said to be self-representing.  The parties had run applications over two and a half years before me, which gave rise to the interim orders for spouse maintenance and departure from child support which were operative at date of trial.

31. On that day in August 2020, both expressed their inability to go on with litigation in circumstances where they had to resolve disputes, but had minimal assets.  The husband was carrying the responsibility of meeting mortgages on the parties’ real estate.  Each produced a Minute of Order to be relied on.

32. The matter was set down for final hearing for one day on 11 December 2020 in the knowledge that the sale of the properties was inevitable. 

33. By that day in August 2020, the Court is now aware that the husband had already instructed solicitors.

34. The Notice of Address for service was filed on 2 December 2020, about 10 days prior to trial.  So the wife, who continued unrepresented, is unlikely to have known of the husband’s decision to be legally represented.

35. The husband appeared represented by counsel at the trial, as, of course, he was entitled to do.

    A STAY APPLICATION

    Child Maintenance

36. On behalf of the husband, it was submitted that this stay application was not founded on a change of financial circumstances, rather it was exclusively based on inadequacy of judicial reasons.

37. The wife, quite correctly submitted, that the order for child support of $78,000 per annum is less, by about $3000, than the maximum amount payable pursuant to the operative interim child support departure order.

38. The interim order had one component of child support payable by the husband on provision by the wife of receipts for children’s needs.  The Court had accepted that it was unduly stressful for the mother dealing with enquiries and objections to particular expenses by the husband.  However, the overall figure is the same or slightly less.  There is no disadvantage to the applicant in the order being in place.

    Spouse Maintenance

39. On behalf of the husband, it was argued that if a stay was not granted, the appeal would be rendered nugatory in respect of spouse maintenance.

40. The basis for the submission, was that the husband, if successful in his appeal, would be unable to recover the amounts he had paid to the wife.  To the use the words of the submission on his behalf, “She would have spent it on herself and the children”.  Spouse maintenance has been ordered at the rate of $500 per week.

41. In the event the husband is partially successful in his appeal against that order and the amount is reduced, the amount could be amortised over the remaining 11 years until the youngest of the parties’ three children turns 18.

42. If totally successful and the order is discharged, there would be some disadvantage to the husband which no doubt could be adjusted against superannuation.

    Property

43. The husband has been left with debt after the sales of the properties, despite the parties’ best hopes.  The parties had contemplated net proceeds of sale of $200,000, but, in fact, the Court was advised on 23 March 2021 of a shortfall of $122,128.  Spouse maintenance was ordered at an amount less than that sought by the wife on account of the husband’s obligation.

    Superannuation

44. The husband proposed a split in the parties’ self-managed fund in favour of the wife, $165,000.

45. The wife had sought an order that two funds in the name of the husband alone and the self-managed fund be transferred to her.

46. An order was made for the transfer of the self-managed fund to the wife and provision for rollover and resignation by her from the super trust.  There is no disadvantage to the husband in that order being implemented. Superannuation will be preserved until the age of retirement.

47. It is untenable for the parties to continue as directors of the company which acts as trustee of their fund in any event.

    CONCLUSION

48. It may be the case that the husband finds, (or has found employment), but the Court is left uncertain as to first whether he would disclose his new financial circumstances or second if he would pay child support in accordance with the “refund” on receipt component of interim orders pending the appeal.

49. Granting a stay in this case could create an injustice or at least impose hardship on the wife. She is entitled to the benefit of the judgment 

50. The parties anticipate that the appeal will come before the Appeal Registrar in October 2021.  It is likely to be heard and determined some time in 2022.

51. For the reasons given, I decline to stay the orders.

52. Orders are made accordingly.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary.

Associate: 

Dated:       9 June 2021