CARSON & HILLMAN

[2018] FamCA 605

FAMILY COURT OF AUSTRALIA

CARSON & HILLMAN [2018] FamCA 605

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the wife seeks a stay of orders pending appeal against substantive orders – Where the wife has filed a Notice of Appeal – Where the superannuation has already been split but the superannuation trustee has no objection to a stay of the superannuation split pending appeal as long as certain conditions are met – Where appeal would be rendered nugatory if stay not granted – Where the balance of convenience favours the granting of the stay.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556 (
Bele & Vaughan [2011] FamCA 724
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

APPLICANT: Ms Carson

RESPONDENT: Mr Hillman

FILE NUMBER: BRC 7935 of 2017

DATE DELIVERED: 10 August 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 6 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page QC

SOLICITOR FOR THE APPLICANT: Michael Dwyer Solicitor

SOLICITOR FOR THE RESPONDENT: Simpson Family Lawyers

Order

1. That paragraphs 3, 4, 5, 6 and 7 of the Order made on 26 June 2018 be stayed pending the determination of Appeal No. NOA66 of 2018 filed by the Applicant on 23 July 2018.

2. That any action taken by U Super pursuant to paragraph 5 of the Order made 26 June 2018 that provides for an entitlement of Mr Hillman in respect of the interest of Ms Carson in the AA Category of U Super be discharged as of a date 7 business days following service of a certified copy of sealed orders on U Super.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7935 of 2017

Ms Carson

Applicant

And

Mr Hillman

Respondent

REASONS FOR JUDGMENT

1. On 26 June 2018 I made a property settlement Order that, among other things, split Ms Carson’s superannuation pension between her and her former husband, Mr Hillman. Ms Carson has appealed against the Order and seeks a stay of the operation of the Order pending her appeal. The split of the superannuation pension has already been given effect.

2. Ms Carson seeks the following order:

   a)That paragraphs 3, 4, 5, 6 and 7 of the Order made on 26 June 2018 be stayed pending the determination of Appeal No. NOA66 of 2018 filed by the Applicant on 23 July 2018.

   b)That any action taken by U Super pursuant to paragraph 5 of the Order made 26 June 2018 that provides for an entitlement of Mr Hillman in respect of the interest of Ms Carson in the AA Category of U Super be discharged as of a date 7 business days following service of a certified copy of sealed orders on U Super.

3. The relevant paragraphs of the Order made 26 June 2018 that are appealed against are set out below:

   3)     The respondent retain free from any and all claims from the applicant the land situated at J Street, Suburb A, Queensland (“the Suburb A property”) provided that:

   a.She indemnify the applicant from any liabilities in respect of the said property; and

   b.In the event the mortgage encumbrance attaching to the property is in the name of the applicant, obtain a release from the mortgagee confirming he has no obligation or otherwise refinance the debt within 45 days of this Order.

   4)     In the event the respondent is required to and does not refinance the debt on the Suburb A property within 45 days of this Order (for whatever reason), the said property be sold forthwith on such terms and conditions as may be agreed and upon the sale, the proceeds be applied and in priority as follows:

   a.To pay the mortgagee what is owed;

   b.To pay the agent any costs of sale; and

   c.The balance proceeds be retained by the respondent.

   5) In accordance with s 90MT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment within the meaning of s 90ME of the Act becomes payable in respect of the interest of Ms Carson in the AA category of U Super (U Super):

   a.Mr Hillman is entitled to be paid by the U Super Board (“the trustee”) 30 per cent of the splittable payment; and

   b.There be a corresponding reduction in the entitlement Ms Carson would have had in U Super but for this Order.

   6)     The trustee do all such acts and things and sign all such documents as may be necessary to:

   a.Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement awarded to the applicant in the preceding paragraph of this Order; and

   b.Pay the entitlement whenever the trustee makes a splittable payment from the respondent’s interest in U Super.

   7)     Paragraph 5 of this Order has effect from the operative time and the operative time is 26 June 2018.

4. Mr Hillman opposes the granting of a stay.

legal principles applicable to a stay application  

1. Rule 22.11 of the Family Law Rules 2004 (Cth) relevantly provides:

   1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

   2)If an appeal has been started, … any party may apply for an order staying the operation or enforcement ... of the order to which the appeal or application relates.

2. The granting of a stay pending the determination of an appeal to the Full Court is a discretionary decision which will be informed by matters such as: ^[1]

   i)The rights of a successful litigant to the ‘fruits of his/her success’;

   ii)The bona fides of the person making the application for the stay;

   iii)Whether a successful appeal will be rendered nugatory if the stay is not granted;

   iv)The merits of the appeal;

   v)Any delay in bringing the stay application;

   vi)When the appeal is likely to be determined; and

   vii)The balance of convenience.

   [1] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; cfAnderson & Senior (Stay Appeal) (2013) FLC 93-556 (as to whether special or exceptional circumstances are required), [34]-[38]; Bele & Vaughan [2011] FamCA 724; see also Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322, [12] and Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349, [19].

3. Whether or not there needs to be a special or exceptional circumstance to justify a stay has been the subject of some discussion in a number of cases but it is not necessary for me to address that further for the purposes of this application. ^[2]

   [2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; cfAnderson & Senior (Stay Appeal) (2013) FLC 93-556, [34]-[38]; Bele & Vaughan [2011] FamCA 724; see also Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322, [12].

discussion

1. My initial query about the utility of a stay in circumstances where the superannuation had already been split has been addressed by exhibit 2 which establishes that U Super have no objection to a stay of the superannuation split pending appeal as long as any action already taken pursuant to paragraph 5 of the Order made 26 June 2018 is discharged 7 business days after service of any Order for stay upon them. That condition has been adopted by Ms Carson.

2. Exhibit 3 is a letter from a mortgage broker which advises Ms Carson that her ability to refinance was predicated on her retaining 100 per cent of current income i.e. the full pension. The reduction in her income arising from the superannuation split has caused the broker to advise that Ms Carson is not in a position to obtain sufficient finance to meet her objective of refinancing her loan against the home in which she and the children live.

3. If the Order is not stayed Ms Carson will be obligated to sell her home. Mr Hillman concedes that the appeal would be rendered nugatory in such circumstances. However, he argues that the sale of the home, is inevitable and surplus to the needs of Ms Carson and their two children. He also contends that Ms Carson could obtain work if she wished and attaches to his affidavit an available position offering part-time employment in a field in which Ms Carson has skills. 

4. If I grant the stay, Mr Hillman will cease to receive the pension that was split pursuant to the Order of 26 June 2018. If the appeal is unsuccessful it seems the payment can resume.

5. There is no suggestion that the appeal is other than bona fides. I cannot find that the appeal is totally without merit. While the application for a stay was brought after the superannuation split was put into effect I do not regard the delay in bringing the application as unreasonable. The appeal will be rendered nugatory (at least in one respect) if the stay is not granted. While there is an appeal sittings in Brisbane in October 2018 it is not known whether or not the appeal will be heard during those sittings. While Mr Hillman will suffer some prejudice if the stay is granted, the balance of convenience favours the granting of the stay.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 August 2018.

Associate: 

Date:  10 August 2018