Jolaha and Hanas

[2019] FamCA 597

FAMILY COURT OF AUSTRALIA

JOLAHA & HANAS [2019] FamCA 597

FAMILY LAW – PROPERTY – Application for a stay of interim property orders pending appeal – Consideration of the bona fides of the Applicant for the stay – Whether the appeal would be rendered nugatory if a stay were not to be granted – Where an application has been made for the matter to be expedited – Where the stay application is dismissed.

Evidence Act 1995 (Cth) s 76, 79.
Family Law Rules 2004 r 1.04.

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Coli & Pearson [2019] FamCA 321
Commissioner of Taxation v Myer Emporium Ltd (1986) 60 ALJR 300
In the Marriage of J.M. and Y.A. Redman (1987) FLC 91-805
Johnson Tiles Pty Ltd (ACN 004 576 103) v Esso Australia Ltd (2000)104 FCR 564
Mackerith & Mackerith [2019] FamCAFC 44
Medlow & Medlow (2016) 54 Fam LR 389
Williamson and Williamson (1978) FLC 90-505

APPLICANT: Mr Jolaha

RESPONDENT: Ms Hanas

FILE NUMBER: SYC 113 of 2019

DATE DELIVERED: 27 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 22 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Ryan QC

SOLICITOR FOR THE APPLICANT: York Law Family Law Specialists

SOLICITOR FOR THE RESPONDENT: Mr Dowdle of Mills Oakley Lawyers  

WITH LEAVE, PREVIOUS SOLICITOR FOR THE RESPONDENT: Mr Quinn of John R Quinn & Co

Orders

1. That the Application in a Case filed 12 August 2019 by Mr Jolaha, as amended by the addition of proposed Order 3 in the Amended Application in a Case filed on 21 August 2019, be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jolaha & Hanas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC113 of 2019

Mr Jolaha

Applicant

And

Ms Hanas

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an application, filed by Mr Jolaha (“the Applicant husband”) (the Respondent in the substantive proceedings), for a stay of interim property Orders, made on 26 July 2019, pending the hearing of an Application for Leave to Appeal against those Orders.  The background to the parties’ property dispute is outlined in my Reasons for Judgment delivered on 26 July 2019.

2. The application is made in circumstances where the parties have been involved in extensive litigation since their separation on 31 August 2018.  Prior to the hearing I requested each party to be in a position to advise the Court and the other party as to legal costs they have incurred to date and legal costs that they anticipate into the future. Senior Counsel for the husband was not challenged on his estimate that, to date, the parties have incurred approximately $460,139 in combined legal fees.  In addition, in his Affidavit filed on 21 August 2019, the husband states that he has been advised that his legal representatives anticipate that his future legal expenses will range from $200,000-$250,000.  The costs notice provided by the wife estimates future costs to be approximately $123,400.

3. In other words, in circumstances where the parties agree that the potential property pool available for distribution is between $1,500,000 and $1,900,000, the parties will potentially be spending in the order of $833,539 on legal fees.

4. It must be acknowledged that those legal fees also involve proceedings between the parties in respect to parenting arrangements and proceeding that have occurred in the United States of America.

5. Nevertheless, I take the opportunity to remind the parties and their legal advisers of the main purpose of the Family Law Rules 2004 (“the Rules”) which, as specified in Rule 1.04, is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.”

Orders the subject of appeal

1. On 26 July 2019, I made the following Orders:

   1)That within 28 days, the husband pay to the wife the sum of $50,000 by way of interim property distribution, such sum to be retained by the wife's solicitors and applied to the wife's legal expenses related to these proceedings.

   2)That by way of periodic spousal maintenance pursuant to s 74 of the Family Law Act 1975 (Cth), the husband pay to the wife cleared funds in the sum of $720 per week into an account nominated by the wife, the first payment to be made within seven (7) days of this order.

   3)That the husband pay the wife's rent up to an amount of $650 per week from the date of commencement of her next residential lease by payment directly to the real estate agency managing the property, such payments are to be paid in advance if required by the agency.

   4)That the husband pay the wife's rental bond up to the amount of $2,600 as required by the real estate agency, and be reimbursed the bond sum upon the termination of the rental lease.

2. The application filed by the husband seeks a stay of Orders 1, 3 and 4.  That is, the husband is not seeking a stay of Order 2 which provides for the husband to continue paying an amount of $720 per week to the wife by way of spousal maintenance.  That Order is, however, also subject to appeal. 

The grounds of appeal

1. The Notice of Appeal filed 12 August 2019 by the Applicant husband is as follows:

   1.   In an Amended Initiating Application filed by the Wife on 15 March 2019, relevantly, the Wife sought orders for lump sum payment, periodic spouse maintenance, the payment of rent (when she moves to rented accommodation) up to an amount of $650 per wee together with the rental bond.

   2.   The Husband contended that he could not pay any lump sum amount.

   3.   The primary Judge's reasons implicitly accepted the Husband had no capacity to pay the lump sum amount ordered other than by effectively raising a loan. There was no evidence before the primary Judge to establish whether or not the Husband would have the capacity to increase the current indebtedness in relation to the J Street, Sydney or indeed for that matter the other 3 Suburb L properties that are in the Husband's name jointly with his siblings.

   4.   Absent evidence that the Husband could raise a mortgage in the face of the evidence that the Husband's employment has only been recent employment and he is on probation meant that the Court proceeded along the wrong path in relation to making an order for a lump sum amount to be paid to the Wife.

   5.   The evidence before the Court was that the sum required by the wife was to be paid to her solicitors however the fees owing to her solicitors exceeded the amount sought by the wife and in any event her solicitors indicated that they would not act unless they are in funds (not only the $50,000). Therefore, the making of the order would not have changed the landscape, namely that the wife's lawyers would receive the $50,000 and they would then cease to act as they are without funds.

   6.   Further, the suggestion that ownership of or control of the property pool or part of the pool is sufficient to establish capacity to pay is misguided. In assessing capacity the court has to assess the nature, form and characteristic of the property pool as well as the capacity to raise a loan, if the court is satisfied that there is no liquid fund from where to satisfy the order. The mere ownership of assets or property does not mean that one is able to raise a loan against the asset or property.

   7.   Further, the concept that a lump sum order can be satisfied by the raising of a loan is contrary to capacity. The effect of raising a loan is to increase indebtedness and reduce the pool as well as increase the serviceability of the liabilities. A party should not be called upon to raise a mortgage to satisfy an obligation (whether it is a lump sum or periodic obligation).

   8.   The Husband contends that the order made for the Husband to pay the Wife's future rental when she rents a home in the future is an order that should never have been made where there was no evidence before the Court that the wife would be required to leave the current home where she resides, being the home of her parents, and where the evidence was that Husband himself and despite the fact that he works full time and earns a significant income, he is living at his parents' home because of the parties limited financial situation.

   9. In relation to the periodic spouse maintenance order made, the husband contends that the court should never have engaged in the enquiry where the wife failed to provide full and frank disclosure and where she failed to produce proper and adequate records to establish her needs as required by the Rules and in particular Rule 4.15.

   10. Further, the court failed to engage in the wife's ability to seek and pursue employment where the wife has support at home in her parents to care for the child and otherwise the husband was and is available to assist so that she can return back to work.

2. At the hearing of this matter on 22 August 2019, the solicitor advocate for the mother objected to the Court hearing, on that day, the husband’s Amended Application in a Case Filed on 21 August 2019. The objection was made in circumstances where the Amended Application had been served upon the solicitor for the wife at approximately 4pm on the day prior to the hearing and was accompanied by an additional Affidavit of the husband dated 21 August 2019.

3. After some debate, the mother, as communicated through her solicitor, indicated she was, however, prepared to agree to the Court considering proposed Order 3 of the Amended Application in a Case which sought the following order:

   That these proceedings be expedited and the matter be referred to the List Coordinator for allocation of the first day in the LAT before a Judge other than Her Honour Justice Henderson with such listing to be made as soon as possible.

4. The wife similarly objected to the Court considering those parts of the husband’s Affidavit dated 21 August 2019 which did not relate to that issue of expedition.  After hearing submissions, I ruled that it would be inconsistent with the principals of procedural fairness to require the wife to respond to the additional orders sought by the husband in his Amended Application in a Case and that, if the husband wished to press those matters, it would be necessary for the husband to seek an adjournment.

5. As a result of concern for additional costs, Senior Counsel for the husband did not seek an adjournment and, accordingly, the matter proceeded on the basis of my considering the Orders proposed in the husband’s Application in a Case filed on 12 August 2019 together with proposed Order 3 as set out in the husband’s Amended Application in a Case filed on 21 August 2019.  Consistent with that determination, I similarly determined that I would not read paragraphs 1 through to 16 of the husband’s Affidavit dated 21 August 2019.

Relevant legal principles

1. The relevant legal principles for considering whether to stay Orders of the Family Court in circumstances where there is an appeal from a discretionary judgment of the Court are set out in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 where, at [18], the Full Court said:

   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:

   [1.] 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;

   [2.] a person who has obtained a judgment is entitled to the benefit of that judgment;

   [3.] a person who has obtained a judgment is entitled to presume the judgment is correct;

   [4.] the mere filing of an appeal is insufficient to grant a stay;

   [5.] the bona fides of the applicant;

   [6.] 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;

   [7.] 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;

   [8.] some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   [9.] the desirability of limiting the frequency of any change in a child’s living arrangements;

   [10.] 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

   [11.] the best interests of the child the subject of the proceedings are a significant consideration.

Consideration

1. There was no dispute between the parties in respect to the first four (4) of the dot points set out in Aldridge & Keaton (supra). Cleary dot points nine (9) and eleven (11), which apply to parenting proceedings, are not relevant to my consideration of the stay application in this matter.

2. The solicitor advocate for the Respondent wife in these proceedings, contended that there was a significant issue regarding the bona fides of the husband in both filing an appeal against the Orders I made on 26 July 2019 and in respect to this application to stay the Orders.

3. In that context, it was noted that the husband has also filed an appeal against parenting Orders that were made by her Honour Justice Henderson dated 12 April 2019.

4. In essence, the solicitor advocate for the wife, who has recently been instructed in this matter, contends that the husband is adopting an overly litigious approach in respect to these proceedings.  In that context, it was noted that at paragraph 22 of his affidavit dated 21 August 2019 the husband states:

   I am currently considering lodging a special leave application to the High Court in the event that an unfavourable judgment is issued by the Full Court of the Family Court in relation to the interim parenting matter.

5. It is common ground that the reference to the interim parenting matter is a reference to the appeal against the decision of Henderson J, to which I have earlier referred, which was heard by the Full Court on 16 April 2019.  I respectfully agree with the solicitor for the wife that the husband’s foreshadowing of a potential appeal to the High Court at a point in time where reasons for the decision of the Full Court are yet to be delivered raises concerns about the husband’s approach to this litigation.  That concern is, however, not such that I determine that the husband lacks bona fides in filing his notice of appeal dated 12 August 2019 against the decision which I made on 26 July 2019.

6. In respect to dot point six (6) in Aldridge & Keaton (supra), it is to be noted that, in his Amended Application in a Case, the husband sought that the stay order be made on the basis of certain conditions.  However, as previously noted, at the hearing on 22 August 2019, I did not consider those aspects of the husband’s application.

7. The issue of the balance of convenience and the competing rights of the parties, as also referred to in dot point six (6) in Aldridge & Keaton (supra), is of particular significance in this case.  Dealing firstly with the issue of the husband seeking a stay of the Orders requiring him to pay the wife’s weekly rental and bond, I refer to paragraphs [114] through to [117] of my decision dated 26 July 2019.  To repeat the view that I expressed: it is entirely reasonable for the wife to seek accommodation for herself and her child independently from her parents.  For reasons which I set out in my decision, I am satisfied that, in circumstances where the husband receives a substantial income by community standards, he has the capability to assist the wife to obtain that accommodation for herself and their child by paying a relatively modest amount in rental.  I am satisfied that depriving the wife of that opportunity would cause unreasonable hardship to her.

8. On the other hand, having regard to the husband’s income, I am satisfied that the husband can comfortably sustain that payment and declining to grant the stay of the Order would not impose an unreasonable hardship upon him.

9. The husband contends that declining to stay the Order requiring him to pay $50,000 by way of partial property distribution to the wife would cause him hardship because he is unable to raise the funds.  The husband has not satisfied me that is the case. The husband’s financial statement dated 14 May 2019 attested to the husband holding a total of $34,378 in bank accounts in his sole name.  The husband stated, in that same financial statement, that he has a gross income of $332,956 per annum and it has been established that he has a substantial equity in the property which he owns in his sole name.  In those circumstances, for reasons which I explain, the husband has not satisfied me that he would be unable to raise the balance of funds required to pay the wife the lump sum of $50,000.

10. In seeking to discharge the onus of proof that he carries, the husband referred to the fact that, by letter dated 2 August 2019 (marked ‘Exhibit AH’ in the proceedings), he was advised by his employer that his probation period which was due to end on 11 August 2019 will be extended for a further six months.  That letter relevantly reads:

    Your probation period with [the employer] is due to end on 11 August 2019.

    As discussed with you on 2 August 2019, we would like to extend the probationary period under your employment agreement by a further six months to 11 February 2020 with the same conditions under the probationary period in your current employment agreement.

    Thank you for your ongoing contribution to our business.

11. The solicitor advocate for the mother complained, in my view, with justification, that despite being dated 2 August 2019 that letter was not provided to the wife until 4 pm on the day before the hearing of the stay application. This, it was contended, deprived the wife of the opportunity of seeking further particulars in respect to the letter or of issuing a subpoena to ascertain the basis of the decision to extend the husband’s probationary period.

12. Irrespective of that situation, it remains the case that the husband has not provided evidence as to why the probationary period was extended.  For instance, there is no reference to whether the period was extended as result of issues regarding his work performance, poor attitude, or any other matter giving his employer concern.  Indeed, the final paragraph of that letter perhaps suggests there were no such concerns to the extent that the letter concludes by thanking the husband for his “ongoing contribution” to his employer’s business.

13. I do not, however, make that inference but merely raise the issue to demonstrate that there can be any number of reasons why the husband’s probationary period was extended including, potentially, the possibility of the husband having requested such an extension.

14. Again, I do not make that finding, I simply raise the point to demonstrate that the reasons for the husband’s probationary period being extended can only be a matter for mere conjecture.

1. Further, as a related issue, in circumstances where the husband has not made an application to a financial institution to borrow funds it can not necessarily be inferred, in the absence of evidence, that such a financial institution would be interested in or concerned about the fact that the husband is classified as a probationary employee.  As the solicitor advocate for the wife submitted, it may well be that, in circumstances where the husband has a history of employment in senior positions and earning substantial income, any financial institution to which he applied for funds may be satisfied with that sound employment history together with evidence of his current level of salary.

2. Again, it must be acknowledged that, whether or not that may or may not be the case, can, again, only be a matter of mere conjecture.  The relevant point is that the husband carries the onus on this issue and he has failed to discharge that onus of proof.

3. Also, in that respect, the husband relies upon correspondence (marked ‘Exhibit AH’ in the proceedings) that he has received from Ms V who identifies herself on the letterhead of a company known as “[Z Group].”  It did not appear to be contested that the husband had a previous business relationship with Ms V. By letter dated 15 August 2019, which was not provided to the solicitor for the wife until 21 August 2019, Ms V states:

   I refer to our discussions in the past and particularly since the 29^th July 2019. 

   As I indicated to you whilst you are under probation period it may be difficult to obtain a loan regardless of your asset base.  In my opinion you should allow a reasonable time of approximately 3 to 4 months after the probation period is completed before applying for a loan.

   The risk of applying earlier is that the application may be declined by lenders and this may impact on your future applications, every application is recorded against your credit score.

   I hope I have addressed the lenders general assessment trend under the current lending criteria.

   If I can be of further assistance, please do not hesitate in contacting me.

   I look forward to assisting you with your finance in the future.

4. In the absence of an opinion falling within one of the exceptions set out in s 76(2) of the Evidence Act 1995 (Cth) (‘the Evidence Act’), s 76 (1) provides that:

   (1)Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

5. It was not suggested that Ms V is an expert in respect to the area of finance or that she has specialised knowledge based on her training study or experience such that the opinion she expressed, in that letter dated 15 August 2019, falls within the expert evidence exception to the opinion rule set out in s 79 of the Evidence Act. The letter is, therefore, inadmissible to prove the contention of the husband that he would have difficulty in obtaining a loan to pay the amount of $50,000 to the wife by way of interim property distribution.

6. Moreover, if contrary to that finding, the letter was admissible on the basis of it being evidence of an expert witness, the letter is expressed in merely speculative terms.  For instance, in the second paragraph, Ms V expresses the opinion that “it may be difficult to obtain a loan.” In the third paragraph she states that, in her opinion, “the risk of applying earlier is that the application may be declined by lenders.”  In other words, at its best, even if it is admissible, the letter merely speculates on the possible reaction of a financial institution to an application by the father to borrow funds against his “asset base.”

7. In circumstances where the husband has not presented evidence of making an application to a financial institution to borrow such funds together with evidence of that financial institutions response to his application, I am not satisfied that, as contended by the husband, he would have difficulty in raising funds to pay an amount of $50,000 to the wife by way of partial property distribution. For reasons which I have indicated, the letter from Ms V is of no assistance to the father’s case.

8. I am, therefore, not satisfied that the father would face hardship in raising the sum of $50,000 against his assets including the J Street property.

9. As against the absence of hardship on the part of the father, the mother would, in my view, suffer hardship in the event of a stay of my Order of 26 July 2019.  In that respect, Senior Counsel for the father contended that the benefit that the mother would obtain from a payment of $50,000 is reduced insofar as it is but a small proportion of legal fees she has incurred and anticipates incurring.

10. For reasons which I set out in my decision of 26 July 2019, it stands to reason that obtaining a portion of legal fees is of at least some assistance to the wife.  That is, particularly, in circumstances where the husband contemplates significant further litigation including a potential appeal to the High Court of Australia.

11. In respect to dot point seven (7) in Aldridge & Keaton (supra), the husband contended that his appeal would be rendered nugatory if his application for a stay was not granted.  Specifically, he contended that, unless stayed, he would be required to part with the sum of $50,000 which the Orders made on 26 July 2019 required him to pay to the wife.  Similarly, by the time of the appeal, he would have been required to pay an amount to the wife in respect to rental accommodation together with a bond to enable her to obtain that accommodation.

12. During the course of the proceedings I referred the parties to a relatively recent decision of her Honour Justice McMillan in the matter of Coli & Pearson [2019] FamCA 321 at [15]-[16]. After referring to the decision of the High Court of Australia in Commissioner of Taxation v Myer Emporium Ltd (1986) 60 ALJR 300 at [301], her Honour, with respect, correctly in my view, stated that the onus where a stay is sought in respect to an interim property order of this Court, the onus lies on the appellant to establish that there is a real risk that he or she cannot be “substantially” restored to his or her former position and further that the appeal, if successful, will be rendered nugatory if a stay is not granted.

13. The husband has not satisfied me that this will be the case.  This is because, as I indicated at paragraph [37] of my decision dated 26 July 2019, by reference to the decision of the full Court in Medlow & Medlow (2016) 54 Fam LR 389 at [410], there is a precondition to the making of an order for the interim distribution of property. That precondition is that the Court must be satisfied that, at final hearing, “there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or, at least, would not defeat [the respondent’s]’s property claim.”

14. For reasons which I set out in that decision I was and remain satisfied that, at final hearing there will be sufficient assets available such that the interim order which I made on 26 July 2019 for the husband to pay a lump sum amount of $50,000 to the wife is capable of being reversed or accommodated within the adjustment of the parties property interests without defeating a property claim that can reasonably be advanced by the husband.

15. Similarly, as I noted at [85] of my decision dated 26 July 2019, by reference to the decision of the Full Court in In the Marriage of J.M. and Y.A. Redman (1987) FLC 91-805 at [414]-[415], different considerations apply to the making of an interim as opposed to a final order for spousal maintenance. Specifically, in JM and Y.A. (supra) the Full Court in referring to, Williamson and Williamson (1978) FLC 90-505 per Fogarty J, held that, in considering an application for interim spousal maintenance, “the court conducts ‘not as a final or exhaustive a hearing as would be the case if one were hearing the matter finally.’ ” The Full Court in J.M. and Y.A (supra) further said that one of the differences between an application for orders for interim spousal maintenance as opposed to final orders for spousal maintenance is that an order for interim spousal maintenance “is intended to be reconsidered” at final hearing.

16. Accordingly, as result of the court’s ability, at final hearing, to reconsider the wife’s claim for interim spousal maintenance including the Orders I have made for periodic weekly spousal maintenance and the payment of rent as well as a bond, I am satisfied that the subject matter of the husband’s appeal will not be rendered nugatory if his application for a stay of the Orders I made on 26 July 2019 is declined.

17. Insofar as I have taken a longer term view of whether the husband’s appeal will be rendered nugatory, I am mindful of the comment of French J as he then was in Johnson Tiles Pty Ltd (ACN 004 576 103) v Esso Australia Ltd (2000)104 FCR 564 where his Honour said at [42]:

    The time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties.  In broad terms, of course, a judgment is treated as final if it finally disposes of the rights of the parties.  Otherwise it is an interlocutory order – Hall v Nominal Defendant (1966) 117 CLR 423 at 439-440 (Taylor J, Owen J agreeing) and 443 (Windeyer J); Licul v Corney (1976) 180 CLR 213 at 225 (Gibbs J, Stephen, Jacobs and Mason JJ agreeing).

18. His Honour’s observation is, in my respectful opinion, entirely apposite in this particular area of family law dealing with interim property applications.  Specifically, based on the application of the principle in Medlow (supra), to which I have earlier referred, the Court has, at final hearing, the ability to adjust or account for the effect of the Order I have made for the interim distribution of property in this matter.  Similarly, consistent with the decision of the Full Court in J.M. and Y.A. (supra), the Court has the ability to reconsider the Orders that I have made for interim spousal maintenance including periodic payments, rental accommodation and payment of rental bond.

19. In the context of the reference that I made to the decision of Macmillan J in Coli and Pearson (supra), Senior Counsel for the father argued that the father’s appeal would become nugatory if the stay is not granted because, in the event of the wife seeking enforcement of the Order for the husband to pay $50,000 by way of interim property distribution, an application may be made compelling the husband to sell the one property that is in his sole name.  In that respect, it was noted that the husband is seeking final Orders to retain that property.

20. That argument, with respect, presupposes that the husband will not be in a position to raise the funds required in order for him to pay the amount of $50,000 to the wife.  For reasons which I have set out above, I am not satisfied that is the case. Indeed as Macmillan J found in Coli and Pearson (supra) at [16] I similarly find in this case;

    The onus in this case lies on the husband to establish that there is a real risk that he cannot be “substantially” restored to his former position and that as a consequence he will suffer a substantial injustice and ultimately that the appeal, if successful, will be rendered nugatory if a stay is not granted. In my view he has not done so. I am not satisfied on the balance of probabilities that the husband has made any attempt to borrow the funds required to enable him to comply with the order or, in those circumstances, that there is any necessity for him to sell a property.

21. In terms of dot point eight (8) in Aldridge & Keaton (supra), it is difficult for a trial judge to assess the strength of the proposed appeal against his or her decision.  However, it is agreed that the husband requires special leave to proceed with his appeal against the interim property Orders which I made on 26 July 2019.  The relevant law in respect to granting such relief was succinctly summarised by her Honour Justice Ainslie Wallace in Mackerith & Mackerith [2019] FamCAFC 44 where at [13] her Honour stated:

    It is accepted that the test for leave is two-fold. First it must be established that the decision in question is attended with sufficient doubt to warrant a grant of leave and secondly, it must be shown that a substantial injustice will result from a refusal of leave to appeal (Medlow and Medlow (2016) FLC 93-692 at [57]). The tests are conjunctive – that is, each must be satisfied before leave will be granted.

    (Emphasis added)

22. As noted in Aldridge & Keaton (supra), the best that a trial judge, considering a stay application, can do is to make a “preliminary assessment of the strength of the proposed appeal.”  Without wishing to be in any way disrespectful of the role of the judges considering the husband’s application for leave to appeal, in my assessment the appellant will face difficulty in establishing that a substantial injustice will result from a refusal of leave to appeal. This is because of the reasons I have set out above.  That is, firstly, based on the principles adumbrated in the decision of Medlow (supra), to which I have referred and for reasons which I set out in my decision dated 26 July 2019, it is relevant that the effect of the payment of the lump sum amount of $50,000 to the wife by way of interim property distribution is “capable of being reversed as part of the final hearing.”  I am further of the view that the husband will have difficulty establishing hardship as a result of the Orders that I made on 26 July 2019 for him to pay periodic spousal maintenance and also rent and a rental bond by way of spousal maintenance in circumstances where, consistent with the relevant extract from J.M. and Y.A. (supra), the issue of spousal maintenance will be reconsidered at final hearing.

23. In respect to dot point ten (10) in Aldridge & Keaton (supra), it was contended that there is a relatively short delay of several months until the Full Court will consider the husband’s application for leave to appeal and, accordingly, there would be a relatively brief period of several months in which the stay would apply to deprive the wife of the benefit of the Orders which I made on 26 July 2019. While the Court makes every effort to hear and determine appeals expeditiously, the facts of this case do not, in my view, lend themselves to this appeal being prioritised.  For reasons which I set out above, in dealing with the hardship that would be faced by the wife if a stay was granted, I am satisfied that it would be unfair to deprive the wife of the benefit of the Orders that I made on 26 July 2019, pending the hearing and determination of the husband’s appeal even if that was to occur within the next few months.

Expedition

1. As previously noted, proposed Order 3 of the husband’s Amended Application in a Case seeks an Order for expedition of these proceedings – that is, both the property and parenting applications that have been filed in the Court.

2. The reasons why that application is made are set out in paragraphs 17 through to 27 of the husband’s Affidavit dated 21 August 2019.  I will not, in this decision, set out those paragraphs.  Essentially, however, those paragraphs refer to the extent of litigation that has occurred between the parties and the extent of legal costs that have been incurred by them.  The affidavit also foreshadows further litigation including an anticipated application by the father for further parenting Orders, the appeal against my decision dated 26 July 2019 and a possible High Court appeal against the yet to be delivered decision of the Full Court in respect to the appeal against the decision of her Honour Henderson J, wherein her honour made the interim parenting Orders to which I have earlier referred.  The husband also anticipates a possible application for enforcement on the part of the wife in respect to the Orders that I made on 26 July 2019.

3. While recognising the endeavours that the parties have made to resolve these matters before a senior mediator, it remains the case that the extent of litigation that has occurred in the twelve month period since the parties separated all but defies belief.  In making that observation, I note that the solicitor advocate for the mother who appeared in these proceedings has only recently received instructions.

4. The parties and their legal advisers are required by the Rules which are a statutory instrument to be conscious of the costs they are incurring and ensuring that they are proportionate to the issues in dispute. It cannot, in my view, be sensibly argued that the legal fees incurred in this matter which, if the litigation continues, are anticipated to be in the order of 50% of the property pool, are in any sense proportionate.

5. While it would be desirable for this litigation to be resolved as soon as possible, I have serious reservations as to whether a party should be effectively rewarded for litigiousness. I am not satisfied that it is appropriate or in the public interest for a matter to be prioritised merely because the parties have been and are likely to be highly litigious. In summary, it would be unfair to the great bulk of litigants and their legal representatives who do act in accordance with their obligations under the Rules, including r 1.04 to which I have earlier referred, for this matter to be prioritised over their matter.

Conclusion

1. Accordingly, for all these reasons, I dismiss the husband’s Application in a Case filed 12 August 2019 for a stay including proposed Order 3 in his Amended Application filed on 21 August 2019.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 27 August 2019.

Associate: 

Date:  27 August 2019