Jackson & Balen

[2009] FamCAFC 131

FAMILY COURT OF AUSTRALIA

JACKSON & BALEN [2009] FamCAFC 131

APPEAL – STAY – Refusal to grant stay pending determination of substantive spousal maintenance appeal – Whether Federal Magistrate failed to give reasons for refusing the stay – Where the husband claimed to have become unemployed since the interim spousal maintenance orders were made – Whether the Federal Magistrate failed to take into account the husband’s changed financial position – Whether the Federal Magistrate correctly applied the principles relating to a stay application – No appealable error established – Appeal dismissed

Carlin & Carlin (1977) FLC 90-320
Dmitrieff & Shaw (No. 2) [2008] FamCA 992
Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] (1986) 160 CLR 220
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Metwally v University of Wollongong (1985) 60 ALR 68,
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Coulton v Holcombe (1986) 162 CLR 1
Banque Commerciale S.A., En Liquidation v Akhial Holdings Ltd (1990) 169 CLR 279)

Family Law Act1975 (Cth) s 77A

APPELLANT: MR JACKSON

RESPONDENT: MS BALEN

FILE NUMBER: SYC 5684 of 2008

APPEAL NUMBER: EA 71 of 2009

DATE DELIVERED: 28 July 2009

PLACE DELIVERED: Perth

PLACE HEARD: Sydney

JUDGMENT OF: Warnick, Boland and Crisford JJ

HEARING DATE: 18 June 2009

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 14 May 2009

LOWER COURT MNC: [2009] FMCAfam 366

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Winfield

SOLICITOR FOR THE APPELLANT: Eleanor Murphy & Company

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Flintoff Lawyers

Orders

1. That the appeal against the refusal to stay Orders 5, 6 and 7 of the orders of Federal Magistrate Sexton of 9 April 2009 be dismissed.

2. That the husband pay the wife’s costs of and incidental to the appeal as agreed and failing agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Jackson & Balen 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 71  of 2009
File Number: SYC 5684  of 2008

MR JACKSON

Appellant

And

MS BALEN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Notice of Appeal filed 2 June 2009, Mr Jackson (“the husband”) sought to appeal orders made by Sexton FM on 14 May 2009.  Those orders dismissed an application for a stay of earlier orders of the Federal Magistrate made on 9 April 2009.

2. The orders of 9 April 2009 relate to an amended application in a case filed by Ms Balen (“the wife”) on 10 February 2009, seeking interim spousal maintenance.  As far as is relevant here those orders are:

   ·The husband pay to the wife by way of periodic spouse maintenance the sum of $650.00 per week or $2,817 per calendar month, such payments to be deposited into the wife’s [S] Credit Union…