GADE and Jabbar (No.19)

[2018] FCCA 2903

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.19) [2018] FCCA 2903

Catchwords:
FAMILY LAW – Property – application for a stay.

Legislation:

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Applicant: MS JABBAR

Respondent: MR GADE

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 2 October 2018

Date of Last Submission: 2 October 2018

Delivered at: Newcastle

Delivered on: 4 October 2018

REPRESENTATION

The Applicant: In person

Solicitors for the Respondent: NLS Law

ORDERS

1. The wife’s application in a case filed on 14 September 2018 is dismissed.

2. The wife shall pay the husband’s costs fixed in the sum of $1500.00 with those costs to be paid contemporaneously with the husband paying to the wife the money he is required to pay to her pursuant to the property orders made on 11 May 2018.

IT IS NOTED that publication of this judgment under the pseudonym Gabe & Jabbar (No.19) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MS JABBAR

Applicant

And

MR GADE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have before me an application in case filed by the wife on 14 September 2018 seeking a stay of orders I made on 4 September 2018 requiring her to vacate Property A.

3. The wife also seeks a more wide ranging order, namely that all  property orders made in respect of Property A including but not limited to the 4 September 2018 orders not be executed. However I already determined a stay application in relation to the property orders generally and I cannot reconsider my decision in that regard.

4. I can consider the stay application in relation to the 4 September 2018 orders and the wife proposed that the order that she vacate the property be stayed until her appeals to the Full Court against the substantive property orders I made on 11 May 2018 and my refusal of her stay application in respect of those orders was heard. Those appeals have been consolidated and will be heard at the same time.

5. The wife’s application was originally listed before me on 21 September 2018 but at that point there was no proof that an appeal had been lodged. The wife was insistent that one had and the matter was adjourned to 7 October 2018 for further consideration.

6. I subsequently received advice from the Principle Registrar of our court that an appeal had been lodged on 20 September 2018, that is after the wife filed her original application but before the next adjourned date, and as a result of the appeal being lodged I have jurisdiction to consider the wife’s stay application.

7. The husband opposes that application.

8. There are many decided cases in relation to the principles to be applied in deciding stay applications but whether a stay is granted is a matter for the courts discretion and the court has to find that there are circumstances which justify staying the orders. I refer for example to Aldridge & Keaton (Stay Appeal).[1]

   [1] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

9. In considering the wife’s application I take into account that the appeal from the substantive property and parenting decision and from my refusal to stay the property orders may be heard in the relatively near future. No date has been fixed for the hearing of those appeals but I was told two days ago that orders has been made for the filing of summaries of argument.

10. I am also conscious of the fact that in the decision she handed down in respect of the wife’s application for expedition of her appeal against my refusal to stay the property orders Justice Ryan indicated that the appeals in respect of the substantive parenting and property orders would be expedited and there is some expectation that they may be heard in October or November.

11. Of course that may not necessarily be the end of the matter. It seems unlikely given the complexity of the matter that a decision will be handed down on the same day and there may be a further delay, and I do not say a delay in the sense of being critical of the appeals court, before a decision is handed down.

12. So in broad general terms the hearing of the appeals should occur relatively soon but that will need to be followed by a decision and the timeframe in which any stay of my orders will operate may be some months.

13. To put the matter most favourably to the applicant it could be argued that the timeframe in which the stay would operate would not be huge which might operate in favour of me granting the stay.

14. Another argument is favour of the stay is that if I do not stay the orders the wife will be required to leave Property A and the husband will then have the opportunity to buy her out of the property. The wife’s appeal in relation to the property orders centres on what she describes as her need for accommodation and her opposition to losing the right to live in Property A, so it can be argued that if I do not stay the orders requiring the wife to leave the property the wife will be deprived of the fruits of her appeal if she is successful and that is often a reason why the court leans in favour of granting a stay in the property matter.

15. However as I observed in my 4 September 2018 judgment there has been a problem of long standing with the wife not complying with orders to pay the mortgage and outgoings in respect of Property A.

16. The husband filed an affidavit in relation to the application now before me to which he attached evidence that the (omitted) Water account for the property was in arrears. He also attached a letter from Newcastle City Council indicating that they again intended to institute legal proceedings against him over unpaid council rates.

17. The mortgage is also currently in arrears because although the wife made a lump sum payment just prior to me handing down my decision on 4 September 2018 she did not pay the August instalment. Even then the mortgage was still in arrears and nothing has changed with that between the time I handed down that decision and today. The problem with the non-payment of outgoings and the mortgage in relation to Property A continues as we speak and that is something which favours me making not saying the orders I made on 4 September 2018.

18. I also note that as I observed in the judgment I handed down on 4 September 2018, while a refusal by me to stay the orders will require the wife to vacate the property and facilitate the husband buying the wife out and will therefore mean that she will lose the prospect of retaining Property A, she will not lose the prospect of obtaining a just and equitable property settlement if her appeal is successful.

19. The balance of convenience in this matter does not support granting a stay.

20. There are things that can be argued on the wife’s side, such as that the appeal is likely to be heard fairly soon, that the decision in the appeal may follow within a reasonable time and that the wife will lose all prospect of retaining Property A if I do not grant the stay. However the balance of convenience does not support the granting of a stay because of the ongoing problems with non-payment of the mortgage.

21. I outlined in my judgment of 4 September 2018 the impact of that on the parties, the ongoing legal costs that are incurred every time the husband brings an application in relation to those matters and the real possibility that if the mortgage remains unpaid the bank may step in and sell the property anyway.

22. The balance of convenience does not support a stay being granted and although it will be unfortunate if the wife loses the roof over her head as a result of having her move out, if she does that relatively speedily the husband can obtain a valuation and he will then be obliged to pay her the large capital sum that he is obliged to pay under the orders and that will be of some assistance to her in relation to housing.

23. I finally want to add that I did consider whether it might be possible to grant a stay of the orders on terms, in other words to grant a stay of the orders on condition that the wife make certain payments. The wife did not raise that possibility with me but she is self-represented and it is a possibility and I therefore want to cover it.

24. The problem with going down that path is that the issue of non-payment of the outgoings and the mortgage has been ongoing for over 2 ½ years. I do not mean that the wife has failed to pay the mortgage for 2 ½ years, what I mean is that the problem of non-payment and the husband’s wages being garnisheed, the husband being sued and the bank sending threatening letters has been a persistent problem for a very long time.

25. I have absolutely no reason to believe that if I made an order that the order of 4 September 2018 be stayed on terms, that the wife would comply with those terms and that payments would be made. So although in my view I could consider a stay on terms I do not consider that in this particular case it would be appropriate for me to do so.

26. I am going to dismiss the wife’s application in a case filed on 14 September 2018.

27. The husband has made an application for costs in relation to an unsuccessful stay application. He seeks costs in the sum of $2,172.00 which is calculated in accordance with Schedule 1 to the Federal Circuit Court Rules.

28. The wife was given an opportunity to address me in relation to costs but she was not willing to do so. She wished to focus on other matters and as a result I went off the bench earlier. The wife has now been called. She has not answered the call and I need to finalise this matter.

29. I have to apply the provisions of s. 117. The general principle is that each party in family law proceedings bears their own costs. S. 117(2A) however provides that the court can make an order for costs if it considers that there are circumstances which justify it doing so.

30. The wife has been wholly unsuccessful in relation to her stay application. There is a disparity between the parties income earning capacities, the husband being in an exponentially stronger position that the wife, but this is a situation where the wife was wholly unsuccessful in her application and where the husband has been put to expense with repeated applications in relation to the property in these proceedings because of the wife’s failure to pay the mortgage and outgoings and the circumstances justify me making a costs order.

31. Even though the amount of $2,172.00 has been calculated in accordance with the scale I consider it excessive because all the husband filed in relation to this application is an affidavit and it was a fairly brief one. He has of course been required to attend court with his solicitor on three occasions but none of those have been for lengthy periods of time so I am not going to order that the wife pay costs fixed in the sum of $2,172.00. I intend to order that wife pay the husband’s costs fixed in the sum of $1,500.00. 

32. I reiterate that I am fully conscious of the fact that the wife’s financial position in terms of income is considerably inferior to the husband’s, but impecuniosity is not a bar to the court making a costs order and the wife has repeatedly made these applications. She has repeatedly made them unsuccessfully. The husband has been put to cost as a result and it is appropriate that I make a costs order.  

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     15 October 2018