FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Daily & Daily (No 4) [2024] FedCFamC1F 149
File number(s): ADC 4606 of 2018 Judgment of: BERMAN J Date of judgment: 13 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Application for stay of final property orders pending appeal – Consideration of the circumstances of the case – Consideration of circumstances that would justify a stay order – Where the litigation has been ongoing since 2018 – Where the Court considers that the appeal would not be rendered nugatory if a stay was not granted – Consideration of injunctions – Orders made to stay the operation of various orders. Legislation: Family Law Act 1975 s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.12
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Daily & Daily [2020] 61 FamLR 75
Daily & Daily [2023] FedCFamC1F 222
Friscioni & Friscioni [2009] FamCAFC 43
Division: Division 1 First Instance Number of paragraphs: 57 Date of hearing: 21 February 2024 Place: Adelaide Counsel for the Applicant: Litigant in person Counsel for the First Respondent: Ms Pyke KC Solicitor for the First Respondent: Norman Waterhouse Lawyers Counsel for the Second Respondent: Ms Barnett Solicitor for the Second Respondent: Barry Nilsson Lawyers ORDERS
ADC 4606 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DAILY
Applicant
AND: MS DAILY
First Respondent
R LAWYERS PTY LTD
Second Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
13 MARCH 2024
THE COURT ORDERS THAT:
1.The operation of order 6 made on 9 February 2024 be stayed.
2.The operation of orders 1.1 made on 9 February 2024 be stayed as follows:
(a)That the wife be restrained from accessing or using the sum of $241,634 currently held in the trust account of Norman Waterhouse Lawyers save and except if those funds are required to be used for the purchase of real property with the first respondent registered as the sole proprietor.
3.Paragraph 2 of orders made 9 February 2024 be discharged.
4.The applicant be restrained and an injunction granted restraining him from accessing and/or withdrawing the sum of $150,000 of the transferred funds from the parties’ joint Westpac Bank Account ending XXX59.
5.The Amended Application in a Proceeding filed 16 February 2024 and the Response filed 20 February 2024 are 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family…
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CaseChat Overview and Summary
The Court carefully considered the applicant's submissions and the evidence presented. It acknowledged the discretionary nature of the application for a stay and the well-established principles that guide such applications, including the importance of the best interests of any children involved. The Court also noted the ongoing nature of the litigation and the significant financial implications for the applicant if the stay was not granted. After weighing the relevant factors, the Court determined that the appeal had an arguable case and that the balance of convenience favoured the grant of a stay, particularly in relation to the orders concerning the trust account funds and the division of assets. The Court concluded that the applicant had met the onus of establishing a proper basis for the stay, and that the appeal would not be rendered nugatory if a stay was not granted. Accordingly, the Court made orders staying the operation of certain orders pending the outcome of the appeal.
The Court's orders included staying the operation of order 6 made on 9 February 2024, which restrained Ms Daily from accessing or using a sum of $241,634 held in the trust account of Norman Waterhouse Lawyers, except for the purchase of real property with Ms Daily as the sole proprietor. The Court also stayed the operation of orders 1.1 made on 9 February 2024, which restrained the applicant from accessing or withdrawing $150,000 from the parties' joint Westpac Bank Account ending XXX59. Additionally, the Court discharged paragraph 2 of the orders made on 9 February 2024. The Court dismissed the Amended Application in a Proceeding filed on 16 February 2024 and the Response filed on 20 February 2024. The form of the order is subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.
Orders
Orders of the court
ADC 4606 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR DAILY
Applicant
AND:
MS DAILY
First Respondent
R LAWYERS PTY LTD
Second Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
13 MARCH 2024
THE COURT ORDERS THAT:
1. The operation of order 6 made on 9 February 2024 be stayed.
2. The operation of orders 1.1 made on 9 February 2024 be stayed as follows:
(a) That the wife be restrained from accessing or using the sum of $241,634 currently held in the trust account of Norman Waterhouse Lawyers save and except if those funds are required to be used for the purchase of real property with the first respondent registered as the sole proprietor.
3. Paragraph 2 of orders made 9 February 2024 be discharged.
4. The applicant be restrained and an injunction granted restraining him from accessing and/or withdrawing the sum of $150,000 of the transferred funds from the parties’ joint Westpac Bank Account ending XXX59.
5. The Amended Application in a Proceeding filed 16 February 2024 and the Response filed 20 February 2024 are 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 the following is set out:-17.This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;•a person who has obtained a judgment is entitled to the benefit of that judgment;•a person who has obtained a judgment is entitled to presume the judgment is correct;•the mere filing of an appeal is insufficient to grant a stay;•the bona fides of the applicant;•a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;•the desirability of limiting the frequency of any change in a child’s living arrangements;•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and•the best interests of the child the subject of the proceedings are a significant consideration.CONSIDERATION The applicant does not set out with any formality the orders by way of property settlement that he seeks but rather the orders sought in the Notice of Appeal are procedural in the sense that the applicant seeks that either the parties file an updated Financial Statement or cause a joint balance sheet to be prepared with the intention that they will be considered on the appeal. The other orders sought in the Notice of Appeal are more declaratory in nature in that the applicant seeks a finding as to the following matters: •That superannuation assets of the parties are included in the distributable asset pool for division consistent with the parties’ non-superannuation assets.•That legal costs paid by the parties are not “add backs” and therefore excluded from the distributable asset pool.•That damages received by the applicant from the second respondent are not property of the parties and therefore excluded from the distributable asset pool.•That the division of assets including consideration of s 75(2) factors is reassessed.