Childs and Childs (No. 2)

[2009] FamCA 766

FAMILY COURT OF AUSTRALIA

CHILDS & CHILDS (NO. 2) [2009] FamCA 766

FAMILY LAW – ORDERS – Stay – Application for stay of execution of the Court’s orders pending appeal – application adjourned on terms

APPLICANT: Mr Childs

RESPONDENT: Ms Childs

FILE NUMBER: PAC 3071 2009

DATE DELIVERED: 12 August 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 12 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self Represented

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Mark Brown Solicitors

Orders

1. That within 7 days the husband sign discharge of mortgage documents with respect to D property, L property and T property, if submitted to the husband.

2. That the husband file within 48 hours an application for expedited hearing of his appeal, and the husband is to diligently prosecute that application and the appeal.

3. That liberty be reserved to the wife to apply on 72 hours notice for the dismissal of the husband’s application for a stay and otherwise stand the application over generally.

4. Request that the husband’s application for expedited hearing of his appeal, if filed, be returnable on 8 September 2009 and request the Court to give favourable consideration to such application.

5. That the costs of the husband’s application be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Childs & Childs is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3071 of 2009

MR CHILDS

Applicant

And

MS CHILDS

Respondent

REASONS FOR JUDGMENT

1. The husband has filed a Notice of Appeal against the judgment of the Court of 22 May 2009. That appeal will apparently come before the Court on 8 September 2009 for directions. On 3 July 2009 the husband filed an application seeking a stay of execution of the Court's orders pending the determination of his appeal. That application has been resisted. Each of the parties has sworn an affidavit, in the case of the husband two affidavits. 

2. As Counsel for the wife correctly suggested, there are, relevant to the exercise of discretion in relation to this application, three issues. The first of those is the apparent merit of the appeal. The most that can be said about the appeal is that as the grounds of appeal as presently articulated reveal of the challenges to the judgment in this matter, the appeal is not demonstrably and necessarily hopeless. On the other hand, the grounds of appeal as currently articulated should provide little cause for optimism on the part of the appellant. 

3. Another matter which is in the circumstances of this case significant, as also correctly identified by Counsel for the wife, is whether declining to grant a stay would render nugatory the fruits of a successful appeal. Expressed another way, if the husband does not have the benefit of a stay and is successful on appeal would the refusal of a stay defeat or deny him the success to which he was thereby entitled? 

4. The Court agrees with the submissions of Counsel for the wife that that question must be answered in the negative. It would cause both parties considerable inconvenience, to put it at its highest, if there were no stay and the husband's appeal succeeded. It would involve refinancing and or sales as the case may be, none of which could constitute an irreversible state of affairs, or defeat the husband's entitlement to the fruits of success on appeal if he is successful. 

5. The other factor which does assume considerable significance for reasons which will briefly be articulated relates to the entitlement of the wife to enjoy the benefits of her success at trial. With respect to the submissions for Counsel for the wife, the Court perceives there to be some complicating factors which render this topic less than straightforward. They arise in various ways, not the least of which is that to implement the Court's orders it is necessary for the wife to refinance a not insignificant amount and pay the husband his entitlement under the Court's orders. It will be necessary for the wife to refinance existing facilities and in the course of doing so obtain discharges of securities over a property which the Court's orders provide is to pass to the husband, which outcome is not controversial and has never been controversial. 

6. The wife's evidence is that she can raise a facility of $500 000 which it is reasonably apparent would be utilised as to, from memory, about $370 000 to extinguish an existing encumbrance over the parties’ property at T, and about $70 000 to satisfy the husband's entitlement under the orders of 22 May, the actual figure being $56 851. The T property mortgage is in fact $336 370. The balance of the sum which the wife proposes to borrow is presumably to discharge debts relating to the children of the parties, and or previous ventures involving borrowings by the husband and wife and two of their children. 

7. The evidence in relation to those topics is contained within a letter from the wife's attorneys to the husband dated 20 July 2009, in particular paragraph 6 and 7. Those liabilities have not emerged post judgment. They were known at trial. The Court's judgment referred to them. What has changed is that the Court envisaged that the parties would meet those liabilities in the manner the Court proposed, from memory equally, as and when they were required to be discharged. Not surprisingly, the bank which holds security over the parties’ three real estate properties has seized, or will seize the opportunity to extinguish those delinquent liabilities as a condition precedent to releasing the title deeds to any incoming mortgagee. The foregoing does not constitute factual circumstances which would defeat the husband's entitlement were he successful on appeal, but they are complications which go to the question of the wife's enjoyment of the fruits of success at trial. It is plain beyond doubt from the affidavit of the wife, and from the latest affidavit of the husband that, unlike many cases, refusal of a stay will not render enforcement of the orders made at trial automatic.

8. With respect to the submissions of Counsel for the wife, the Court is unable to accept that on balance the wife would not be likely to be deprived of the fruits of success at trial for longer if the stay were refused, than is likely to be the case if that course is not adopted. Why that is so can be simply suggested. 

9. If the husband's application for a stay is dismissed, it is abundantly obvious that the wife will have to bring an enforcement application. The husband will resist that application as he is entitled to. It is inconceivable that the application would not involve cross‑examination of the husband and probably the wife. The Court would have to produce a judgment, the judgment would be able to be appealed. Objectively, if the Court as currently constituted were to hear that application, existing commitments and leave would mean that it would not be heard before October, late October or early November 2009 at that.  Realistically a judgment would follow promptly after that was heard and if an appeal were lodged then the appeal would take its course. 

10. The alternative which the husband has said he would pursue, but the Court does not, with respect to him, rely solely on his say so, the Court’s orders being able to be made conditional, is that the husband seek an expedited hearing of the appeal and prosecute such application and the appeal diligently. Failing his doing so, the wife could re‑list the application, and so doing could only have one outcome, that is that the application would be dismissed. 

11. On balance, not withstanding that it may well appear a somewhat unusual course of logic to do so, the Court considers that the wife is more likely to receive the fruits of this litigation, whether they be as provided in the trial judgment, or some other judgment reached by the Full Court in the exercise of its collective wisdom, much sooner by the course proposed than by the alternative of refusing a stay.

12. More over, as is not in doubt the wife throughout these proceedings and on a continuing basis has been represented by solicitor and Counsel. Quite properly, they expect to be and hopefully are paid. The expense associated with enforcement proceedings, coupled with the prospect of a further appeal in circumstances where, for whatever reasons, and the reasons are no business of the Court, the husband is either unrepresented or partially represented, is another factor which inclines the Court to the view that although perhaps not able to be readily seen as such. In reality, not dismissing the application may well be seen in time to have been a course quite favourable to the wife. 

13. It is not without significance that the parties have been separated for, on any view of the evidence, three months short of four years. The arrangements which currently apply have applied for that period. That is not to suggest that more delay is better, but simply to put into context that if, as is likely, the husband could have his appeal heard before the end of the year and hopefully, although the Court accepts by no means automatically, have a judgment by early in the new year, in the context of the years which have passed since the parties have separated that would seem a moderate impost, although the parties could not be expected to see it as such. 

For all those less than cogent reasons the orders of the Court will be as have been indicated.  I will reserve the costs of the husband's application.

...

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: 

Date:  26 August 2009