DOVEN & DOVEN
[2013] FamCA 277
•25 March 2013
FAMILY COURT OF AUSTRALIA
| DOVEN & DOVEN | [2013] FamCA 277 |
| FAMILY LAW – PROPERTY – Enforcement of Orders – Application filed by husband for enforcement of orders – Application adjourned to a fixed date for hearing FAMILY LAW – PROPERTY – Stay of Proceedings – Application by wife seeking a stay of orders pending determination of an appeal – Application dismissed |
Family Law Act 1975 (Cth)
Aldridge v Keaton(stay appeal) [2009] FamCAFC 106
Gallieni & Gallieni [2012] FamCA 54
| APPLICANT: | Mr Doven |
| RESPONDENT: | Ms Doven |
| FILE NUMBER: | HBC | 553 | of | 2009 |
| DATE DELIVERED: | 25 March 2013 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 25 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fitzgerald |
| SOLICITOR FOR THE APPLICANT: | Fitzgerald & Browne |
| COUNSEL FOR THE RESPONDENT: | Mr Bugg |
| SOLICITOR FOR THE RESPONDENT: | M+K Dobson Mitchell Allport |
Orders
The enforcement application filed by the husband be adjourned for hearing before me at 2.15pm on 11 April 2013.
The costs of both parties be reserved.
The wife’s application for stay is dismissed.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doven & Doven has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 553 of 2009
| Mr Doven |
Applicant
And
| Ms Doven |
Respondent
REASONS FOR JUDGMENT
On 26 July 2012, I published reasons and made orders in relation to parenting and property matters in terms of the various disputes between Mr and Ms Doven. The property orders provided that the wife retains a number of properties, the husband retain a property, that the wife indemnify the husband against a mortgage of some $632,626, that the husband pay the wife about $28,000 and that the wife retain a bank account containing an adjusted amount of $73,700.
On 22 August 2012, the wife filed an appeal in relation to the property orders seeking orders that the property be divided as to 80 per cent to the appellant and 20 per cent to the respondent and some adjustments in relation to credit card add-backs and moneys from a joint account, the latter two amounting to some $1800 and $5383. No stay application was made until very recently, and the stay application which the wife argues today was in response to an application by the husband seeking enforcement of the orders.
In an affidavit provided by Mr Bugg, it was clear that the wife was aware at the time of lodging the appeal of her entitlement to make an application for a stay. There have been some delays in relation to the appeal, and it appears that the appeal books have now been lodged, but the submissions by or on behalf of the wife have not been filed and that she is out of time in terms of those submissions. It was thought that the appeal may have been heard in March of this year, but it now looks more like the appeal will be heard in October of this year.
It is clear that the wife has not been diligent in her prosecution of the appeal, as it is now some seven, eight or nine months since the orders were made. The effect of the orders in this case is unusual. There is no money to be paid by the wife to the husband. In fact, it is the other way around. It will be the husband who will be paying the sum of just under $30,000 to the wife.
The husband in his submissions and in his affidavits makes it clear he does not want the properties sold, but he wants the property which is to be transferred to him to be done for a number of reasons: Firstly, so that he can clear up an existing account in relation to the costs of the substantive proceedings, secondly, so he can raise money to pay out the wife. And in respect of the loan, it was submitted, and I accept, that the husband will be put to significant cost, or some cost, in relation to the appeal.
The wife in her affidavit acknowledges that the summary of argument was to have been filed on 24 January 2013 but has not been as yet filed. It’s clear that the wife was considering whether to proceed with the appeal or not. At the end of the day, it is a matter for her. She has by use of rent and savings reduced the liability to the ANZ Bank of $578,000. Therefore, if she is wholly successful in the appeal, she would need to refinance a sum of something around the $278,000, and if she was unsuccessful in the appeal, then the amount would be $578,000.
This seems to be based upon a hope that the Full Court would re-exercise a discretion if she is successful in the appeal. That hope may, of course, not be realised as if the appeal is unsuccessful, she will need, as I have said, to fund the whole lot. If successful, it may well be that the parties will need to come back to a Court at first instance with a judge other than me to rehear the property proceedings which would add another level of cost to these parties.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
The relevant legal principles to be applied were, as indicated by Mr Fitzgerald, set out in the Full Court in Aldridge & Keaton (stay appeal)[1] which I referred to in paragraph 12 of my reasons in Gallieni & Gallieni,[2] where I said:-
[1] [2009] FamCAFC 106.
[2] [2012] FamCA 54.
12.The law in relation to stay applications was set out by the Full Court in Aldridge v Keaton(stay appeal) [2009] FamCAFC 106 where Bryant CJ, Boland and Crisford JJ said:-
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.
The onus to establish a stay is on the applicant that is, the wife, and not the husband. The husband is a person who is entitled to the judgment and the benefit of that judgment and is entitled to presume that the judgment is correct.
There was no argument as to the grounds of appeal, and I note the mere filing of an appeal is insufficient to grant a stay. There is in the submissions of the husband an issue of bona fides of the wife, and there is some substance to that argument as the wife has not prosecuted the appeal with the vigour that one would have anticipated, and whilst Mr Bugg has taken some responsibility, and I am not critical of him in that regard, the underlying responsibility to prosecute an appeal in an effective way rests with the wife.
There is no adequate explanation for the delay in lodging the application for a stay, and the consequence of that is, of course, that the husband has incurred penalties both in cost and in time. There is no persuasive evidence that the husband would not meet his obligations if the orders were put in place, the onus in that respect being on the wife.
It is incorrect to say that the husband is not prejudiced by the delay. He does not have access to the property. He cannot raise funds to pay out his existing liability to his legal practitioners and, for that matter, to fund any defence of the appeal. The wife, on the other hand, has access to substantial assets, albeit some encumbered, so there is a prejudice to him. It is unlikely that the failure to stay the orders would render the appeal nugatory. The assets are still there. Having considered the issues raised by the wife and those responded to by the husband, I am not satisfied in all of the circumstances of this case that a stay should be granted. Accordingly, I will make orders to that effect.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 25 March 2013.
Associate:
Date: 25 March 2013
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