Hadden and Hadden
[2011] FMCAfam 710
•5 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADDEN & HADDEN | [2011] FMCAfam 710 |
| FAMILY LAW – Application for stay of orders pending appeal. |
| Family Law Act 1975, s.90AE |
| Applicant: | MS HADDEN |
| Respondent: | MR HADDEN |
| File Number: | SYC 6445 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 30 June 2011 |
| Date of Last Submission: | 30 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Capellia Legal |
| Solicitors for the Respondent: | Streeter Law |
ORDERS
Orders 2, 7 and 8 of the orders of the Federal Magistrates Court made
5 May 2011 are stayed pending the appeal of MS HADDEN filed
2 June 2011 being determined, dismissed, discontinued or abandoned subject to the following conditions:
(a)
The Wife pay to the Husband $88,000 pursuant to Order 2 made
5 May 2011 in accordance with the said order; and
(b)The Wife file an Amended Notice of Appeal within 28 days properly particularising her grounds of appeal and the orders that she seeks.
The parties have liberty to apply before Federal Magistrate Altobelli on 7 days notice in relation to the implementation of these Orders.
The costs of the parties arising out of the stay application is reserved for determination by Federal Magistrate Altobelli after the conclusion of the Wife’s appeal.
IT IS NOTED that publication of this judgment under the pseudonym Hadden & Hadden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6445 of 2008
| MS HADDEN |
Applicant
And
| MR HADDEN |
Respondent
REASONS FOR JUDGMENT
I provide the following oral reasons in the matter of Hadden. By way of an application in a case filed by the wife on 10 June 2011, she seeks firstly, a stay of certain orders that I made on 5 May 2011 by way of a property settlement, and secondly, she seeks a number of orders against her former solicitor. The respondent husband in his response filed
29 June 2011 seeks dismissal and costs.
I propose to deal with the second aspect of the wife’s claim first. It is in substance a dispute between the wife and her former solicitors about unpaid costs and a lien. I decline to deal with this for two reasons. Firstly, a letter from the solicitor dated 29 June 2011 seems to offer a reasonable compromise that will enable the solicitor to retain his lien whilst giving to the wife the documents that she seeks in order for the purposes of pursuing her appeal. Secondly, if – and I stress “if” – as the solicitor for the wife contends, my source of power is s.90AE, it is a discretionary power which I decline to exercise in circumstances where there is no dispute between the parties to the marriage but rather a dispute between the wife and her solicitor about costs. I note that the solicitor for the wife did not refer me to any other source of power I might have.
The main issue is the stay application. My orders require the wife to do certain things. Order 2, which is sought to be stayed, requires the wife to pay to the husband $255,659 within 90 days, i.e. by about
5 August 2011. Orders 7 and 8 are consequential on this and cover the contingency that she cannot pay and must sell property in order to do so. If I grant a stay of order 2, it follows that I would also stay orders 7 and 8.
The wife files an application in support of her stay application. At paragraph 3 she states:
In my opinion, the difference between the new orders and the current ones might eliminate or significantly reduce the sum of $255,000 that I am required to pay to the applicant under the current orders.
Regrettably, the grounds of appeal are obviously drawn by the wife and not her lawyers and fails to set out what orders she seeks. Her solicitor explained, however, that he confidently expects to pick up five to six per cent on appeal for the wife. The parameters of the stay application are set by the orders sought in the appeal. The wife’s case is that she will receive another six per cent above what I awarded her. I gave her 42.5 per cent of a pool of approximately $2.8 million. She is confident, according to her solicitor, of receiving 48.5 per cent or $1,358,000.
Referring to the tables set out in paragraph 71 of my reasons, on the basis of the parameters set by the wife herself, the payment that she would need to make to the husband would be reduced from $255,659 to $88,248. Subject to any other relevant matters, if I grant the stay, it would be conditional on the payment to the husband of that which is clearly not in contention, i.e. $88,248.
I note with interest that for the wife to completely negate the need for any payment to the husband, she would have to achieve an outcome in her favour of almost 52 per cent, which is almost 10 per cent more than I awarded her, and I further note that not even her solicitor contends for this.
The solicitor for the husband submits that the wife could not possibly succeed on her appeal as it is presently framed. That is probably correct, but it ignores the reality that the Notice of Appeal was drafted by the wife, who is now legally represented and whose legal representation has assured me that an amended notice of grounds which properly particularise the grounds of appeal as well as the orders sought will be filed.
It would be an exercise in futility to decline a stay to which the wife is otherwise entitled on a technicality that will, I am assured, be remedied. I will make it a condition of the grant of the stay that the notice be amended.
In the husband’s submissions, he submits that he will be prejudiced by not having funds to meet his living expenses as well as oppose the appeal. As the stay will be conditional on the payment to the husband of a quite substantial sum, his hardship will be abated.
Whilst the husband is entitled to the fruits of his orders, to not grant the stay on the conditions to which I have referred to above would render the wife’s appeal nugatory.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 19 July 2011
0
0
1