KEDIS & KEDIS

[2014] FCCA 78

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEDIS & KEDIS [2014] FCCA 78

Catchwords:
FAMILY LAW – Application for stay pending appeal to Family Court of Australia – final property Orders – general principles considered – Orders made – otherwise stay refused.

Legislation:

Family Law Act 1975 (Cth), s.106A

Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106

Applicant: MR KEDIS

Respondent: MS KEDIS

File Number: MLC 2787 of 2013

Judgment of: Judge Hartnett

Hearing date: 15 January 2014

Delivered at: Melbourne

Delivered on: 15 January 2014

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms Teicher

Solicitors for the Respondent: Jeanne Gorman

THE COURT ORDERS (IN RELATION TO THE HUSBAND’S STAY APPLICATION) THAT:

1. The Application for Stay filed 23 December 2013 is dismissed.

2. The wife’s costs of and incidental to the Application for Stay shall be paid by the husband.

IT IS NOTED that publication of this judgment under the pseudonym Kedis & Kedis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2787 of 2013

MR KEDIS

Applicant

And

MS KEDIS

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application in a Case filed 23 December 2013 by the husband.  The orders sought by the husband are a stay of the final Orders dated 29 November 2013 (‘the final Orders’).  The husband seeks a stay with respect to the totality of the Orders that were made on that day.  The husband has filed the necessary Notice of Appeal, also on 23 December 2013, which is a Notice filed within time. 

2. In support of his application for a stay, the husband swore an Affidavit on 23 December 2013.  Some parts of that Affidavit are irrelevant and some nonsensical, but those parts from which one can glean the basis of his application appear to be contained in paragraphs 5 and 6 of that Affidavit.  Those paragraphs are as follows:-

   “5. That the orders made on the 29 November 2013, file no. (P)MLC2787/2013 will render me homeless and destitute, unable to even apply for a loan.

   6. That the orders that are given as mentioned as above on paragraphs one-one(11) and one-two(12) also don’t allow myself enough time to find other suitable premises to relocate myself and my business equipment. Now hereto attached to this affidavit and marked with the letters “K 2”.”

   I note the attachment marked “K 2” is a copy of the final Orders.  Also in that Affidavit, the husband refers to the final parenting Orders made 29 November 2013, as not allowing any meaningful relationship between his children and his parents whom he describes as “the grandparents of the two grandchildren of the same surname”.  I note at the outset of these Reasons that at no time have the husband’s parents brought any application to spend time with and/or communicate with the children X born on (omitted) 2004 and Y born on (omitted) 2008 (‘the children’), nor were they witnesses in the proceedings whose evidence was relied upon by the husband.  They did not partake in the proceedings in any way.

3. The husband has given sworn evidence this day that from at least the making of the final Orders, he ceased to make the mortgage repayments secured over the parties’ two real properties; that is their former matrimonial home situate at Property H in the State of Victoria (‘the former matrimonial home’) and the investment property situate at Property U in the State of Victoria (‘the investment property’).  The wife has no capacity to make any payment toward the mortgage instalments as they fall due and she has never had such capacity. The husband’s actions will force a mortgagee sale of the two real properties leaving neither of the husband or wife in occupation.

4. The husband’s inability to apply for a loan in the future will no doubt be impacted upon by his history of loan repayments in respect of the mortgage over the parties’ two real properties.

5. The husband in the running of the proceedings at trial declared that he would be homeless if forced to vacate the former matrimonial home from which he operated his business.  The Court considered that matter, as put by the husband, together with all the relevant facts and such consideration is as set out in the Reasons for Judgment of 29 November 2013 reported as Kedis & Kedis [2013] FCCA 1959 (‘the Reasons’). The Court determined that the husband had capacity to obtain employment as an employee in his capacity as a (occupation omitted) and/or to move his business premises elsewhere and/or to reside elsewhere. In the Reasons, the Court at no time accepted that the husband, by having to vacate the former matrimonial home would be rendered homeless and destitute, which he claimed then and continues to claim now.

6. The husband has an earning capacity.  The husband has an income.  The husband has parents with whom the wife and children went to reside immediately following separation (as set out in the Reasons) before the wife and children then moved to reside with the wife’s parents, where they continue to reside. 

7. The grounds of appeal as set out in the husband’s Notice of Appeal are as follows:-

   “1. I propose to appeal the orders evidence that was not presented for consideration during the course of the trial.  Further written proof and recordings were not submitted by the father’s previous representatives that have biased the consideration when the final orders were handed down, which was crucial to the whole spectrum for a different outcome.  The proposed orders were based on discretion of the evidence presented with omissions of that evidence.”

8. In considering the competing applications before the Court, that is, the husband’s application for a stay of the totality of the final Orders and the wife’s opposition to it and seeking that his application be dismissed, the Court is engaged in an exercise of discretion.  The Court turns to a consideration of those principles such as they are relevant to this stay application as set out in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106 noting that the list of principles stated there are not exhaustive and that the onus for the stay is on the applicant. Those principles are set out at paragraphs 17 and 18 in that judgment and are as follows:-

   “17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513 ; (1979) FLC 90-716).

   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 Ltd [No (1986) 160 CLR 220  at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (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.”

9. The Court is not satisfied that the husband is bona fide in pursuing his rights to appeal the decision in this matter.  That is a harsh judgment, but one which I think is applicable in this case.  The husband again reiterated in Court this day that he is “not moving anywhere”.  Despite the interim Orders made on 10 May 2013 providing the wife with sole use and occupation of the former matrimonial home, the wife has been unable to, in a practical sense, enforce that Order.  This is because the husband has taken up occupation of, essentially, both properties. He was living in the investment property over the road from the former matrimonial home. The damage sustained to the former matrimonial home by him, and the removal of the totality of its chattels and contents over to the investment property, rendered that home uninhabitable for the wife and children.  The husband then moved back into the former matrimonial home to take up occupation of it again in about September 2013, and he continues his occupation of that home despite the making of the final Orders precluding him from doing so. 

10. When the final Orders were made, the husband was also required to vacate the investment property and to deliver up the keys to both properties to a Registrar of this Court.  The husband admits that he has failed to vacate either real property and that he has failed to make the keys available to a Registrar of this Court for handing over to the wife. 

11. Orders were made on 23 December 2013 and required to be made pursuant to s.106A of the Family Law Act 1975 (Cth) for a Registrar of this Court to execute all necessary documents in the name of the husband to give validity and operation to effect a sale of the investment property on behalf of the husband and also to transfer the husband’s interest in the former matrimonial home to the wife. It would appear the real motivation behind the filing of the appeal is to enable the husband to continue his occupation of the former matrimonial home and control of the investment property. The filing of the appeal appears to have no other purpose. There is no supporting material filed by the husband which go to establishing the grounds as set out in his Notice of Appeal.

12. Whether there is a risk that the appeal may be rendered nugatory if a stay is not granted, is a substantial factor in determining whether it is appropriate to grant a stay.  The Court determines there is no such risk. The wife has pursuant to the final Orders sole proprietorship and occupation of the former matrimonial home.  That can be altered by the Appeal Court. It is essential, in light of the husband’s cessation of mortgage repayments that the parties retain control of the sale of the investment property to stem the losses that flow from the husband’s actions.  Those losses are numerous and detailed in the Reasons and I shall not repeat them here. 

13. Turning to a preliminary assessment of the strengths of the appeal, it is difficult to see how on the grounds of appeal as set out by the husband that he could succeed.  Paragraph 87 of the Reasons which he highlights in his Affidavit sworn 23 December 2013 and appears to rely upon in support of this stay application, goes to the lack of credibility of the husband as a witness.  Reference is also made to the husband’s uncontrolled anger which continues unabated to the present time.  The proceedings this day and their conclusion in particular whilst I was trying to deliver these Reasons, is a further example of that. That paragraph is not supportive of a stay of the final Orders.

14. There must be a sale of the investment property as ordered and it must occur promptly.  Either that sale can occur by order of the Court in an orderly fashion to benefit the parties, or it will occur by the bank taking possession of possibly both properties and selling one or both of them.  The wife, who has the care and financial support of the parties’ two young children, is currently residing in a home which (as referred to in the Reasons) the husband considers highly inappropriate for the children’s needs.  The Reasons set out in detail why it is that the wife should have ownership of the former matrimonial home and why it is that the former matrimonial home should provide accommodation for herself and the children.  The Court was satisfied of that need in as early as May 2013.  The husband’s violence and the husband’s absolute refusal to comply with Orders of the Court have meant that the wife has continued her residence with the children in her parents’ home.  That unsatisfactory situation has now continued not only beyond the making of the interim Orders on 10 May 2013, but the final Orders on 29 November 2013.  It would be grossly unfair to the wife to further delay the enforcement of the final Orders of the Court for the many months that it would take before an appeal could be determined by the Full Court of the Family Court of Australia, on an application which sets out no substantial grounds and which is not, in my view, bona fide.  The husband also claims to be concerned about his young children but he has failed by his own admission to comply with various orders that would enable him to spend time with them, initially in a supervised setting and thereafter hopefully moving to unsupervised time. 

15. It is very concerning that the husband will not voluntarily vacate the real properties of the parties and that a Warrant of Possession has been sought in application filed by the wife.  The husband’s demeanour this day, his sworn evidence and submissions from the bar table make it abundantly clear that force will be required to remove the husband from the properties.  The husband has had continued occupation and/or control of the former matrimonial home and the investment property since separation on 14 September 2012.  That is already a very long period of time.  It should not be further extended because of his absolute refusal to comply with orders of this Court. The wife should be entitled to the benefit of the Judgment.

16. In its discretion, the Court determines that no stay of any orders should be granted and the application of the husband be dismissed.  Costs will follow the event.  The husband has an income, the husband has an earning capacity and the husband has, pursuant to the final Orders, the prospect of obtaining a capital sum. He has been, in these proceedings, entirely unsuccessful.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  5 February 2014