CHAN & CHIH - [2018] FamCA 998

FAMILY COURT OF AUSTRALIA

CHAN & CHIH

[2018] FamCA 998

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – Where the husband makes an application to stay the property settlement order pending the determination of his appeal – Where the orders provide for a default sale of the former matrimonial home if the husband does not pay the wife a certain sum – Where the husband seeks to retain the former matrimonial home but submits that he is unable to raise the sum of money to pay the wife – Where the husband argues that the first instance judgment gave an inappropriate adjustment to the wife for s 79(4)(d)-(g) considerations - Where the appeal would be rendered nugatory if the stay is not granted –Where the husband says he is able to raise and pay a lesser sum of money in the interim if the court found it appropriate to attach that condition to the order granting the stay – Where the court finds it is appropriate in circumstances where the wife needs the funds and the husband is ordered to pay the wife a lesser sum pending the appeal being determined.

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131

APPLICANT:

Mr Chan

RESPONDENT:

Ms Chih

FILE NUMBER:

SYC

3511

2014

DATE DELIVERED:

27 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Kim & Associates

COUNSEL FOR THE RESPONDENT:	Ms Christie, SC
SOLICITOR FOR THE RESPONDENT:	Cominos Family Lawyers

Orders

Paragraphs 2, 3 and 4 of the property settlement order made 11 October 2018 be stayed until the husband’s appeal against that order is determined upon the following conditions:
a)Within a period of 42 days from the date of these orders, the husband pay to the wife the sum of $267,500; and
b)The husband at all times prosecutes his appeal with the Full Court expeditiously.
In the event the husband does not fulfil the conditions of this stay, the wife has liberty on 14 days’ notice to relist the matter before me if I am reasonably available for consideration as to whether the stay order shall continue to remain in place.

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 Chan & Chih 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 SYDNEY

FILE NUMBER: SYC 3511 of 2014

Mr Chan

Applicant

And

Ms Chih

Respondent

REASONS FOR JUDGMENT

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CHAN & CHIH [2018] FamCA 998
Case: [2018] FamCA 998
Decision Date: 27 November 2018

CaseChat Overview and Summary

The parties in this matter were the husband and wife, who were involved in a dispute concerning property settlement orders made on 11 October 2018. The husband sought a stay of certain paragraphs of these orders pending the determination of his appeal against them. The application was heard by Watts J.

The primary legal issue before the court was whether to grant a stay of the property settlement orders. This required the court to consider the conditions under which such a stay should be granted, balancing the interests of both parties while an appeal was pending.

Watts J ordered that paragraphs 2, 3, and 4 of the property settlement order be stayed until the husband's appeal was determined. This stay was conditional upon the husband paying the wife the sum of $267,500 within 42 days of the order date and prosecuting his appeal expeditiously. The court also provided for the wife to relist the matter for further consideration if the husband failed to meet these conditions.

Orders

Orders of the court

Paragraphs 2, 3 and 4 of the property settlement order made 11 October 2018 be stayed until the husband’s appeal against that order is determined upon the following conditions:

a) Within a period of 42 days from the date of these orders, the husband pay to the wife the sum of $267,500; and

b) The husband at all times prosecutes his appeal with the Full Court expeditiously.

In the event the husband does not fulfil the conditions of this stay, the wife has liberty on 14 days’ notice to relist the matter before me if I am reasonably available for consideration as to whether the stay order shall continue to remain in place.

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

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

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