CHILDS & CHILDS
[2010] FamCAFC 35
•10 March 2010
FAMILY COURT OF AUSTRALIA
| CHILDS & CHILDS | [2010] FamCAFC 35 |
| FAMILY LAW - APPEAL – PROPERTY – Whether the trial Judge erred in finding the onus of proof on the husband to prove his initial capital contributions – Where comments about the onus of proof were ultimately irrelevant – No error established in overall consideration of initial contributions – Whether the trial Judge erred in the exercise of his discretion in s 75(2) adjustment by failing to give appropriate weight to husband’s health and lack of earning capacity – Where the trial Judge accepted the husband’s evidence about his health – Where the trial Judge found that the husband had only modest capacity for employment in the future – Where the trial Judge made an adjustment in the husband’s favour – Where the trial Judge did not overlook any relevant matter nor gave inappropriate weight to the husband’s age, health or employment capacity – No appealable error – Whether the trial Judge erred in determining that the wife should retain an investment property or by failing to order the sale of that property – Where the trial Judge identified that the question of the assets to be retained by each party was in issue – Where the trial Judge dealt with the question of who should retain the property as a discrete issue – Where the trial Judge’s reasons disclose a careful and balanced consideration of the issue – No appealable error. FAMILY LAW - APPEAL – STAY – Where the trial Judge did not dismiss the husband’s application for a stay of his orders but stood the application over – Where the wife appealed the refusal to dismiss the husband’s stay application – An order for a stay or an order dismissing or refusing a stay is a highly discretionary matter – Where the discretion of the trial Judge miscarried in taking into account an irrelevant matter – Where the trial Judge erred in standing the stay application over. FAMILY LAW - COSTS – OF APPEAL – Where the husband wholly unsuccessful in his appeal – Where the husband has capacity to meet an order for costs – Where it is appropriate that the husband pay the wife’s costs of an incidental to the appeal – OF STAY APPEAL – Where the wife sought a costs certificate in the event that costs were not ordered against the husband – Where appropriate that there be no departure from s 117(1) of the Family Law Act 1975 – Wife granted costs certificate in respect of the stay appeal. |
| Family Law Act 1975 (Cth) – s 75(2) Federal Proceedings (Costs) Act 1981 (Cth) |
| Currie v Dempsey & Ors (1967) 69 SR (NSW) 116 Butterworths, Cross on Evidence Australian Edition, vol 1 (at 122-11-09) |
| FILE NUMBER: | PAF | 1555 | of | 2006 |
| APPEAL NUMBER: | EA | 75 | of | 2009 |
| APPELLANT: | Mr Childs |
| RESPONDENT: | Ms Childs |
| APPEAL NUMBER: | EA | 100 | of | 2009 |
| APPELLANT: | Ms Childs |
| RESPONDENT: | Mr Childs |
| DATE DELIVERED: | 10 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland, Thackray & O’Ryan JJ |
| HEARING DATE: | 2 December 2009 |
(EA 75 of 2009)
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 May 2009 |
| LOWER COURT MNC: | [2009] FamCA 434 |
(EA 100 of 2009)
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2009 26 August 2009 |
| LOWER COURT MNC: | [2009] FamCA 766 [2009] FamCA 885 |
REPRESENTATION (EA 75 of 2009)
| COUNSEL FOR THE APPELLANT: | Mr Bell |
| SOLICITOR FOR THE APPELLANT: | Matthews Folbigg |
| COUNSEL FOR THE RESPONDENT: | Mr Maiden SC |
| SOLICITOR FOR THE RESPONDENT: | Mark Brown & Associates |
REPRESENTATION (EA 100 of 2009)
| COUNSEL FOR THE APPELLANT: | Mr Maiden SC |
| SOLICITOR FOR THE APPELLANT: | Mark Brown & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Bell |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg |
Orders
The husband’s appeal (EA 75 of 2009) against the orders of the Honourable Justice Coleman of 22 May 2009 is dismissed.
The wife’s appeal (EA 100 of 2009) against the orders of the Honourable Justice Coleman of 12 August 2009 and 26 August 2009 is allowed.
The orders of the Honourable Justice Coleman made 12 August 2009 and 26 August 2009 be set aside.
The husband’s application in a case filed 3 July 2009 is dismissed.
The husband pay the wife’s costs of and incidental to appeal No. EA 75 of 2009 as agreed and failing agreement as assessed.
That the Court grants to the wife a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect of the costs incurred by her in relation to appeal No. EA 100 of 2009.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 75 of 2009
File Number: PAF 1555 of 2006
| Mr Childs |
Appellant
And
| Ms Childs |
Respondent
Appeal Number: EA 100 of 2009
File Number: PAF 1555 of 2006
| Ms Childs |
Appellant
And
| Mr Childs |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 May 2009 Coleman J delivered reasons and made orders in proceedings for property settlement between Ms Childs and Mr Childs. His Honour found the parties’ net assets of $3,024,714.00 should be divided between them as to 56 per cent to the husband and 44 per cent to the wife. This is the husband’s appeal against his Honour’s orders (“the substantive appeal”). He seeks that the appeal be allowed, and the parties’ assets divided as to 60 per cent to him and 40 per cent to the wife. The husband seeks to retain as part of his entitlement a property at D, and an investment property at L (“the L property”).
On 12 August 2009 the husband’s application for a stay of his Honour’s orders was before the trial Judge. The trial Judge did not dismiss the application but required the husband to seek expedition of his appeal, and stood the stay application over with liberty to the wife to restore to the list on 72 hours notice to the husband. On the wife’s application the husband’s stay application was relisted on 26 August 2009. On that occasion the trial Judge stood over the stay application generally on the proviso that the husband prosecute his appeal diligently, and ordered that any appeal against the refusal to dismiss the stay application be consolidated and listed with the primary appeal.
We heard the wife’s appeal against the refusal to dismiss the husband’s stay application contemporaneously with the husband’s appeal.
The Notice of Appeal in the substantive appeal was prepared by the husband. Counsel for the husband’s application to amend the Notice of Appeal was not opposed and we granted leave for him to do so. The effect of the amendment was that the husband’s counsel effectively abandoned the grounds in the Notice of Appeal and relied on a single ground as follows:
That in the exercise of his discretion the Learned Trial Judge erred in that His Honour:
a)Acted on a wrong principle and/or was guided by extraneous or irrelevant matters. Alternately His Honour failed to give such adequate weight as to amount to a failure to exercise discretion (Appellant’s Amended Summary of Argument, paragraph 9)
The husband’s appeal is of narrow compass. Before us his counsel raised three challenges to the trial Judge’s orders. It was asserted that his Honour erred in:
(i)finding the onus of proof of the husband’s pre-marriage property was his sole onus to establish on the balance of probabilities;
(ii)the exercise of his discretion in the adjustment he made under s 75(2) in favour of the husband, because he failed to give appropriate weight to both the husband’s health and lack of earning capacity; and
(iii)determining that the wife, rather than the husband should retain the L property or in the alternate erred in failing to order the sale of that property.
We have determined that the husband’s appeal should be dismissed. We have also concluded the wife’s appeal should be allowed. These are our reasons for those determinations.
We do not propose to set out the history of the parties’ marriage, their acquisition of, and contributions to, their property. That material is contained in the trial Judge’s reasons. None of the factual findings of the trial Judge are challenged. Rather we will explain, albeit briefly given the nature of the challenges raised, why we consider that the three issues distilled above do not disclose appealable error.
The onus of proof challenge
In his oral and written submissions the husband’s counsel challenged the trial Judge’s finding that it was the husband’s sole onus to establish to the requisite standard his initial capital contributions at the commencement of cohabitation. These contributions included an assertion by the husband of his ownership of a property at M (“the M property”) which the parties occupied as their first matrimonial home.
At paragraphs 27 and 28 of his reasons, the trial Judge noted the conflict in the parties’ evidence about when this property was purchased and its purchase price. His Honour explained:
In the year of their marriage, the parties purchased their first matrimonial home at [M]. The wife asserted that the property cost approximately $8000. The husband asserted that the property was purchased approximately six months prior to marriage for approximately $13 000‑$14 000.
The wife claimed that the bulk of the purchase price of the [M property] was borrowed. The husband maintained that he paid the totality of the purchase price from pre-marriage funds. Unsurprisingly, 37 years later, no documentation has been tendered before the Court to clarify the purchase price or the funding of the acquisition of the [M property].
When dealing with the initial contributions of the parties the trial Judge recorded that the husband’s evidence was that at the time of the marriage he owned:
(i)3 blocks of land at G which had been gifted to him by his father in 1971;
(ii)a half interest with his brother in another block of land at G which was sold after the marriage and that his share of $25,000.00 had been applied for the benefit of the family; and
(iii)the M property.
His Honour noted that the wife conceded the husband owned the half interest in the land referred to in (ii) above.
It is not in dispute neither party filed any corroborative evidence such as title searches to support their respective assertions about the husband’s assets at the time of marriage. There were no retrospective valuations of the properties, nor any evidence of any encumbrance in respect of any of them.
The trial Judge’s crucial findings, the subject of the challenge now raised, are found in paragraphs 125 to 129 of the reasons as follows:
The issue is difficult. As noted earlier, there is no documentary evidence which assists the Court to make findings, nor is there any circumstantial or other evidence capable of assisting in that exercise. Nor can it be said that the subsequent acquisition of properties was consistent only, or more probably, with the husband having had substantial capital available to him from the sources asserted by him to have enabled those acquisitions to occur.
Ultimately, the Court approaches this issue by reference to the onus of proof.
The husband alleged the initial capital contributions. To the extent that they were disputed, he thus bore the onus of proving those contributions on the balance of probabilities. Objectively, what the husband asserted can neither be accepted nor rejected on that basis. He has accordingly failed to prove his allegations in accordance with the civil standard of proof.
On the evidence, the husband had an interest in land which, subsequent to his marriage to the wife, and inferentially not long after the marriage, realised $25 000 which was applied for the benefit of the parties. That was not an insignificant contribution. The fact that the use made of it cannot be identified with any specificity ought not reduce its significance.
The impact of the parties’ many, substantial and varied contributions over the following decades do however have the potential to “erode” that initial contribution. Objectively, and in isolation, its significance today could only be regarded as minimal.
The gravamen of the submissions made to us on behalf of the husband was that in a situation where each party deposed to differing versions of the pre-cohabitation assets said to be owned by the husband, no particular onus rested on one party alone to prove to the civil standard the ownership of particular property.
The wife’s senior counsel referred us to the fact that at trial it was the wife’s position that given the length of the marriage, and the myriad contributions made by both parties over more than 35 years, that any initial contribution was not of such significance that it should result in any adjustment, and the parties’ contribution entitlements should be regarded as equal. He noted that the trial Judge had not accepted that submission, and had assessed the husband’s contributions at 52.5 per cent (or a differential of 5 per cent) thus reflecting the husband’s unquantified initial contributions.
The wife’s senior counsel submitted the onus or burden was an evidentiary onus not a legal onus, and also directed our attention to his Honour’s finding, that the husband had not filed any corroborative material to support his assertions about his initial contributions, nor, as we have already noted, was there any evidence which sought to establish the value of the husband’s asserted assets at the date of the marriage.
The learned authors of Cross on Evidence (Butterworths, Cross on Evidence Australian Edition, vol 1 (at 122-11-09)) refer to four situations were it is “vitally important to know” which of two parties to litigation has the burden of proof on an issue. The third identified issue is “when the tribunal of fact is left in doubt” (at [7001]).
The legal burden of proof is explained in the classic statement of Walsh JA in Currie v Dempsey & Ors (1967) 69 SR (NSW) 116 at 125 as follows:
[T]he burden of proof in the first lies on a plaintiff, if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, e.g., if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an ‘avoidance’ of the claim which, prima facie, the plaintiff has.
The authors of Cross refer to the evidential burden at [7200] as follow:
… The evidential burden has been defined as the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue. The legal burden, ‘burden of proof’, ‘probative’ or ‘persuasive’ burden has been defined as the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved or disproved. The question whether there is sufficient evidence to raise the issue of the existence of a particular fact can be answered only once in the course of a case and, if there is a jury, the answer must be given by the judge. The question whether a fact in issue has been proved can be answered only after both parties have called their evidence and, when there is a jury, the answer must be given by them after they have been instructed by the judge…
It appears to us that if his Honour’s comments about the husband bearing the sole onus of proof were directed to the differing claims made by both parties about the nature of the husband’s premarital assets, it was technically incorrect. Each party bore the evidentiary burden of establishing, on the balance of probabilities, contributions made during the marriage. This requirement was more sharply focused in this case where no adverse credit findings about either party were made by the trial Judge. But, as we will now explain, in the circumstances of this case his Honour’s comments about the onus of proof were, in our view, ultimately irrelevant.
In fairness, however, to his Honour, we accept that if the onus to which his Honour was referring was that of proving the value to be attributed to the husband’s pre-marriage assets, that evidentiary burden lay with the husband. In other words, if the husband wished to assert that a value should be ascribed to his pre-marriage assets, and that value taken into account in the contribution assessment, he bore the evidentiary onus to establish that value. The husband did not satisfy that onus.
We are satisfied there is no error demonstrated in his Honour’s overall consideration of initial contributions. Neither party produced any corroborative evidence, for example by providing a memorandum of transfer which would have demonstrated the date of purchase of the M property, and the purchase price. A title search would have disclosed any mortgage registered on the title and the date of its discharge. Nor was such evidence produced in respect of the vacant land. His Honour was unable to prefer the evidence of one party over the other. In this situation, absent corroborative evidence and/or expert valuation evidence, it is difficult to see what more his Honour could have done to determine what property the husband had, and its value, at the date of the marriage. Even if the trial Judge accepted the M property had been purchased, as asserted by the husband, shortly before the marriage he could not have determined the extent of the husband’s equity in it, any more than he could have determined the value of the property if it was acquired or contributions made to its purchase price if purchased shortly after the marriage.
The trial Judge recognised the husband’s undisputed interest in the land at G owned with his brother, and his later contribution of land at J. His Honour took into account the husband’s initial contributions as best he could on the evidence before him and recognised his overall contribution based entitlements exceeded those of the wife resulting in a differential of five per cent.
It is difficult to envisage anything more his Honour could have done in the circumstances of this long marriage, where he found credit of the parties was not an issue, and that both parties had worked hard and contributed in their respective spheres. We are satisfied there is no merit in the first challenge.
The section 75(2) challenge
Before us the husband’s counsel conceded this was a “weight” challenge, and acknowledged the difficulties facing an appellant in such circumstances (see House v The King (1936) 55 CLR 499).
In our view, this ground is so patently without merit that it requires little discussion.
The trial Judge accepted the husband’s evidence about his health, both physical and psychological. He accepted by reason of the husband’s age, lack of recent employment in his area of expertise, and time before his psychological health was likely to improve, that he only had a modest capacity for employment in the future.
As the wife’s senior counsel pointed out, the wife’s position before the trial Judge had been that the husband’s asserted back injury and psychological impairment were contrived and that the wife had effectively “lost” on this issue with the trial Judge making an adjustment in the husband’s favour of 3.5 per cent.
A careful reading of the trial Judge’s meticulous examination of the expert medical evidence, and his consideration of the impact of the husband’s medical condition on his capacity does not support a finding that his Honour overlooked any relevant matter, or that he gave inappropriate weight to the husband’s age, health and employment capacity.
We discern no error by the trial Judge in the adjustment made in the husband’s favour under s 75(2).
The L property
The third issue raised by the husband was asserted error by the trial Judge in determining that the wife should receive the L property rather than that property being retained by him or an order being made for its sale.
At trial the husband, who was represented by experienced counsel, provided a Minute of Orders sought. In that Minute the husband sought orders that the wife transfer to him her interest in the former matrimonial home, and the L property. In paragraph 20 of the Minute he proposed that the wife also receive a monetary adjustment of $305,464.00 with the effect the parties’ assets should be distributed as to 60 per cent to him and 40 per cent to the wife. He did not seek in the alternative to the L property not being retained by him that it should be sold, and either party have the right to purchase the property.
The trial Judge identified early in his reasons that the question of the assets to be retained by each party was in issue (paragraph 7). His Honour dealt with the question of who should retain the L property as a discrete issue at paragraphs 250 to 259 of his reasons.
His Honour took into account the following matters:
·the wife’s undisputed evidence that she would live in one of the units at L;
·that the L property was subject to the incidence of capital gains tax (albeit that roll-over relief was available on a transfer to either party);
·the husband would live in the D property (the former matrimonial home);
·if the husband retained the L property he would need to raise about $1,000,000.00 to pay out the wife’s interest;
·the rental income from the L property would barely cover interest payments on the loan needed to purchase the wife’s interest in the property;
·the only basis the husband could advance to retain the L property was that it would give him a capital asset (which would be heavily encumbered);
·the marriage was a lengthy one where both parties’ contributions were substantial;
·the husband would retain the D property, the parties’ most valuable asset which would provide a superior standard of living for the husband than that which the wife would have in one of the units at L;
·retention of the D property by the husband gave him an income of $250.00 per week from the cottage on that property; and
·if the husband retained the L property he would not generate investment income, and would leave the wife without real estate approaching anything of the value of the husband’s real estate.
Paragraphs 250 to 259 of the trial Judge’s reasons (which we have briefly summarised above) disclose a careful and balanced consideration of the issue of whether it was appropriate for the husband to retain the L property.
In doing so his Honour was fulfilling the statutory mandate that he ensure that the orders he proposed to make were just and equitable. Nothing to which we have been referred discloses any error in his Honour’s impeccable examination of this issue. This is not a case where an order for sale, which in any case we note was not sought before the trial Judge, was appropriate. The value was not in dispute, the husband was to retain the parties’ most valuable real estate, and the wife had a need for accommodation. The challenge to his Honour’s orders is not sustainable.
Costs of the husband’s appeal
At the conclusion of the husband’s appeal we sought submissions on costs. The wife sought in the event that the husband’s appeal was dismissed, that we should make an order for costs in her favour.
We accept that the husband’s appeal has been wholly unsuccessful. Having regard to the assets to be retained by each of the parties we are satisfied the husband has the capacity to meet an order for costs. In these circumstances, we consider it appropriate that the husband pay the wife’s costs of and incidental to the appeal.
The stay appeal
The wife relied on four grounds of appeal in her Notice of Appeal filed 3 September 2009. The essential argument of the wife was that the trial Judge’s determination to stand over the husband’s application generally was “an effective de facto stay” of his orders.
As we have now determined that the husband’s appeal should be dismissed, there is little utility in us giving lengthy consideration to the stay appeal.
The wife filed detailed written submissions in support of the stay appeal. No submissions were filed by or on behalf of the husband and his counsel only made brief oral submissions before us.
In his submissions, the wife’s counsel noted that an order for a stay or an order dismissing or refusing a stay is a highly discretionary matter. We were referred to the recent decision of the Full Court in Gull & Gull (Stay Application) [2009] FamCAFC 104 where in paragraphs 9 and 10 the Full Court set out the relevant principles to be applied in determining a stay application. There the Full Court said:
9.The matters to be considered in relation to whether a stay should be granted have been explained by the High Court on a number of occasions and were conveniently summarised for our purposes in the judgment of Beaumont J in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 82:
[15] In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681, where the Court below had ordered the cancellation of certain securities, Brennan J said (at 683):
“The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises.”
[16] His Honour characterised a stay to preserve the litigation’s subject-matter as “an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted” (at 684).
[17] Brennan J explained (at 685):
“In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.”
[18] In Edelsten v Ward (No 2) (1988) 63 ALJR 346, Brennan J, emphasising the “exceptional” character of the Court’s inherent jurisdiction to preserve the subject matter of litigation pending the making of a special leave application, said (at 346):
“[This jurisdiction] is one which can only be exercised in extraordinary circumstances. It is as well to emphasise that observation again lest the impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in statu quo until the litigation is finally resolved. That is not the purpose of the inherent jurisdiction. Something quite exceptional must be shown before that jurisdiction is exercised.”
[19] In Commissioner of Taxation v Myer Emporium (1986) 160 CLR 220, Dawson J noted (at 222) that the High Court Rules (see now O70 r8(1)) provide that, unless otherwise ordered, an appeal does not operate as a stay. His Honour said (at 222 - 223):
“It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal: see, eg, The Annot Lyle [(1886) 11 PD 114]; Scarborough v Lew's Junction Stores Pty Ltd [[1963] VR 129]. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v Church [No 2] [(1879) 12 Ch D 454]; Klinker Knitting Mills Pty Ltd v L’Union Fire Accident and General Insurance Co Ltd [[1937] VLR 142]. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v Sandland [No 2] [(1918) 25 CLR 369].”
…
[22] In Rahme v Commonwealth Bank (1993) 117 ALR 618, Deane J said (at 620):
“Apart from the exceptional case in which special leave to appeal to this court has been actually granted, the final decision of the highest appellate court of a State or Territory is conclusive of the particular litigation. That being so, it is only in demonstrably exceptional circumstances, such as the immediate threat of the destruction of the subject matter of the litigation or of grave and irreparable damage being sustained, that an application to this court for interlocutory relief can be justified.”
10.We would add for completeness the decision of Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 particularly commencing at p.308 where his Honour made observations on the principles governing applications for a stay pending determination of a special leave application.
No issue was raised by the wife that his Honour had not correctly identified the issues relevant to the exercise of discretion in relation to the stay application.
It was further submitted that in his judgment delivered 26 August 2009 his Honour was correct when he said:
… the continuing apparent absence or paucity of possible merit, as that can be gauged by reference to the grounds of appeal in the husband’s Notice of Appeal, suggest that this would have to be, particularly having regard to the prejudice to the wife, one of the weakest stay applications with which the court could be confronted … (paragraph 6)
It was further noted that his Honour correctly identified that the refusal to grant the stay sought by the husband would not defeat or deny him the fruits of a successful appeal.
The wife’s counsel referred to the third issue to be considered - the balance of convenience. It is asserted in the wife’s submissions that the trial Judge’s discretion miscarried at this point in his reasons, with his Honour taking into account an irrelevant consideration, namely, the likelihood of enforcement proceedings, which the husband could resist, and a subsequent appeal from that process, resulting in further costs and delay.
At paragraph 21 of the submissions filed on behalf of the wife, her counsel submitted:
With respect, the prospect of any contest as to enforcement and/or any appeal from the enforcement determination and/or any appeal from the refusal to grant a stay is not a valid or proper relevant consideration to the exercise of discretion.
We agree with the broad thrust of this submission.
We also agree with the submission made on behalf of the wife that in taking into account an irrelevant consideration, his Honour’s discretion miscarried. Accordingly, we are satisfied his Honour erred in standing the stay application over generally, albeit on terms that the husband’s appeal be expedited and prosecuted diligently.
As we have determined the substantive appeal it is unnecessary we consider the orders sought by the wife in the stay appeal. In any event, in our view, those orders appear to be more in the nature of enforcement proceedings which should, if such proceedings are necessary, be brought at first instance.
Costs of the stay appeal
As we have already noted, at the conclusion of hearing the appeals, we sought submissions from both parties’ counsel on costs. The wife sought in the event that we did not order the husband pay her costs of and incidental to the stay appeal that she should receive a certificate under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
The husband resisted the making of a costs order against him in the event that the stay appeal was allowed.
We are satisfied that there should be no departure from s 117(1) of the Act. As we are satisfied there was an error of law by the trial Judge we propose to grant the wife a certificate in respect of the stay appeal.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 10 March 2010
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