Keighley & Keighley (No 3)
[2023] FedCFamC1F 219
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keighley & Keighley (No 3) [2023] FedCFamC1F 219
File number(s): SYC 6003 of 2016 Judgment of: CHRISTIE J Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – STAY APPLICATION – Where final parenting and property orders were made that provided the children live with the wife and spend supervised time with the husband – Where the husband appeals and seeks a stay of those orders.
FAMILY LAW – APPLICATION FOR ENFORCEMENT – Where the wife seeks orders for enforcement of a property order – Where the husband seeks a stay of that same order – Where the husband will not be prejudiced with an order providing for part enforcement.
Legislation: Family Law Act 1975 (Cth), s 117 Cases cited: Aldridge & Keaton (Stay Application) [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013
Trahn & Long (No 2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 42 Date of hearing: 23 March 2023 Place: Sydney Counsel for the Applicant: Litigant in Person Counsel for the Respondent: Ms Windsor Solicitor for the Respondent: Hotop Family Lawyers Solicitor for the Respondent: Mr RR, SS Lawyers ORDERS
SYC 6003 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KEIGHLEY
Applicant
AND: MS KEIGHLEY
Respondent
AND: SS LAWYERS
Intervener
order made by:
CHRISTIE J
DATE OF ORDER:
30 March 2023
THE COURT ORDERS THAT:
1.Within seven days the parties do all acts and things and signs all documents necessary to distribute the monies held in the NAB controlled monies account as follows:
(a)In payment of the sum of $120,378 to the wife;
(b)In payment of the sum of $27,212.05 to SS Lawyers;
(c)In payment of the sum of $106,230.70 to the husband;
(d)The remaining balance be held pending final determination of the husband’s appeal.
2.The husband’s application for stay is otherwise dismissed.
3.The wife’s application for enforcement is otherwise dismissed.
4.The husband pay the wife’s costs of and incidental to the application for enforcement in the amount of $1,782.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keighley & Keighley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This matter came before the Court for final parenting and property proceedings. Judgment was delivered and orders made on 8 February 2023.
Mr Keighley, the husband, filed a Notice of Appeal on 28 February 2023 appealing both property and parenting orders. On 7 March 2023, he filed an Application in a Proceeding seeking a stay of those orders.
Ms Keighley, the wife, is the respondent to the husband’s application for stay.
The wife filed her own Application in a Proceeding seeking enforcement of one of the orders of 8 February 2023.
At the final hearing, both parties were legally represented. While the wife remains legally represented, the husband now appears as a litigant in person.
On 22 March 2023 the husband’s former solicitors filed an Application in a Proceeding seeking to be heard in respect of unpaid legal fees. That application was listed before me for mention. As it transpired, there was no opposition to that application effectively being dealt with when the matter was before the Court on 23 March 2023.
The independent children’s lawyer (“the ICL”) appeared when the matter was listed as a courtesy to the Court and informed the Court that the ICL had filed a submitting appearance in the appeal. The ICL suggested that the change to the current parenting regime in the period between this stay application and the proposed listing of the appeal was not very significant. I excused the ICL’s further attendance.
BACKGROUND
Interim orders relating to parenting were made on 20 May 2019 (“the interim orders”). Order 5 of those orders provides:
That commencing on the weekend following the satisfaction of obligations pursuant to Order 4 but in any event, not before Saturday 8 June 2019 and for 3 consecutive weekends in a 4 weekly cycle thereafter, the children spend supervised time with the father 1 day per weekend as can be accommodated by the contact supervision service for a period of up to 4 hours.
The orders of 8 February 2023 (“the final orders”) changed that parenting regime in so far as Order 4(a) said that between the date of hearing and 3 August 2023 the time between the children and the father would be as follows:
The children spend time with [Mr Keighley] (“the father”), supervised by [G Contact Centre] or, if unavailable, such other professional supervision service (“the supervision service”) selected by the mother, as follows:
(a) For a period of six months from the date of these orders, and commencing on the first Saturday after the making of these orders – for three hours on Saturday each alternate weekend at times nominated by the supervision service;
…
The parties both agreed that the time the father had been exercising under the existing orders was not two weekends in three as is permitted by those orders but less frequent. The father said that he would generally exercise time once a fortnight but would take advantage of the existence of an order allowing two weekends in three to permit him to see the children on special occasions.
He also noted that the interim order provides that time may occur on either day of the weekend while the final orders set the day.
The husband had originally sought a stay of all property orders but accepted that the superannuation split had occurred. He therefore sought a stay of Order 20 which provided for the distribution of the parties’ controlled monies account and read as follows:
The father and mother do all acts and things and sign all documents necessary to close the NAB controlled monies account in their joint names ending in […85] and apply the balance as follows:
(a) $185,258.25 to the mother;
(b) $133,442.75 to the father; and
(c) any balance be divided 58 per cent to the mother and 42 per cent to the father.
The wife sought her costs of the enforcement and her response to the stay application. The husband opposed the wife’s application for enforcement and the making of a costs order.
THE LAW
A party may not anticipate that he or she will necessarily obtain a stay upon the filing of a Notice of Appeal. Each case will turn on its facts but the applicable principles, derived from the jurisprudence in particular the decision in Trahn & Long (No 2) [2008] FamCAFC 194 at [38], is as follows:
(a)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 “special” or “exceptional” circumstances;
(b)A person who has obtained a judgment is entitled to the benefit of that judgment;
(c)The person who has obtained a judgment is entitled to presume the judgment is correct;
(d)The mere filing of an appeal is insufficient to ground a stay;
(e)The bona fides of the applicant;
(f)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;
(g)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 the stay;
(h)Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case; and
(i)The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stayfor a short period of time.
The husband referred to the decision in Aldridge & Keaton (Stay Application) [2009] FamCAFC 106. I agree that the principles discussed by the Full Court in that decision are relevant here. Both that decision and earlier decisions (including Clemett & Clemett (1981) FLC 91 – 013) make plain that the Court should avoid too many changes for children and in some cases it may be appropriate to maintain the status quo pending appeal. It is appropriate to give consideration, albeit not paramount consideration, to the children’s best interests.
The wife sought costs against the husband. Each party usually pays his or her own legal costs but, where there are justifying circumstances, the Court may order that one party pay the other party’s costs. In considering the costs application it is necessary to have regard to the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”):
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
CONSIDERATION
The wife’s Enforcement Application
The wife seeks the following order in her enforcement application:
1.That a Registrar of the Federal Circuit and Family Court of Australia sign the Customer Letter of Authority to the National Australia Bank annexed at [MK-11] to the Affidavit of [Ms Keighley] affirmed 1 March 2023, in substitution for the Respondent.
2.That the Respondent pay the Applicant’s costs of and incidental to this Application in the amount of $1,782.00.
The wife seeks to enforce Order 20 of the orders of 8 February 2023. I have set this out above.
The husband’s Stay Application
The husband seeks a stay of the property and parenting orders.
I accept that the husband’s application is made bona fide. I accept that there has been no delay in the making of the application and the husband has prosecuted his application with appropriate diligence.
The appeal is likely to be listed in the sittings at the end of May 2023. This is significant since the period for which a stay would operate is not lengthy.
The husband did not address me at any length about the merits of the appeal. I accept that the outcome of appeal is unknown. It is unlikely to be successful on all 23 grounds pressed by the husband but I cannot at this stage discount the possibility that one of the grounds is arguable.
It is appropriate that I consider whether or not there is prejudice to the parties or either of them in some distribution of the funds available to them.
I am considering the application for enforcement and the application for stay at the same time since they deal with the same subject matter. The wife would like compliance with the Court orders while the husband would like that compliance to be temporarily suspended pending the outcome of the appeal
Having heard the submissions of the parties, I propose to permit each of the parties’ applications in some form. That is, I propose to order a limited stay and to otherwise order enforcement of the financial orders.
In the reasons for judgment following the final hearing I found at paragraph 211 that the parties’ assets, notional assets, liabilities and superannuation were as follows:
PROPERTY OWNERSHIP VALUE ASSETS NAB controlled monies account J 318,701 Motor Vehicle 1 trade-in amount W 1,000 Engagement ring W 8,250 Jewellery W 900 Antiques, artwork and collections H 2,370 Shares H 679 CBA bank account ending #...74 H 467 NAB bank account ending #...91 W 6,239 NAB bank account ending #...75 W 3,126 Rental Bond (Suburb U) H 4,500 Rental Bond (Suburb V) W 3,120 W Bank account ending #...13 H 885 Total: 350,237 SUPERANNUATION Perpetual W 122,906 Perpetual H 418,376 Total: 541,282 Total Assets: 891,519 LIABILITIES W Bank personal loan H 54,204 Total Liabilities: 54,204 Net Assets: 837,315 ADD-BACKS Sale of shares held at separation by the husband for payment of legal fees H 100,000 Interim property settlement to Husband H 6,500 Interim property settlement to the Wife W 30,000 Net Pool: 973,815
I made an order the effect of which was to divide the net assets so that the wife received 55 per cent and the husband 45 per cent. The husband had submitted at hearing that the net assets should be divided so that he received 60 per cent and the wife received 40 per cent.
The husband’s application seeks to stay all orders. The most significant of the financial orders relate to the superannuation splitting orders and the orders for distribution of the funds in the NAB controlled monies account.
Having regard to the net pool the difference between the husband’s application and the amount he received is $146,072.
If the Court had made the orders the husband sought, then the wife would have received a net amount of $389,526 inclusive of superannuation. That would have resulted in a superannuation split of $93,607 plus her own entitlements of $122,906. The wife’s other assets totalled $52,635; making a total before the controlled monies were divided of $269,148. Accordingly, the amount payable to the wife from the NAB controlled monies would have been $120,378 if the husband’s orders were made at trial. The husband cannot then argue that the wife should not receive those funds as a condition of any stay.
Intervener’s Application in a Proceeding
When the matter came before me for hearing of the application for stay and application for enforcement, there was an appearance on behalf of SS Lawyers who had been the lawyers who acted for the husband in the proceedings when they were listed before me for final hearing. Those solicitors were owed some fees at the conclusion of the matter and sought to intervene to ensure that, in any distribution of the funds as between the parties, their fees were protected. The husband indicated a preparedness for the funds which he owes to his former solicitors to be released to them and signed an undertaking which I marked as an exhibit in the proceedings. Accordingly, the orders which I make will allow for the payment of those fees to the husband’s former solicitors. This resolves their application.
The sum which is required to be paid to the husband’s former lawyers is $27,212.05.
That amount will be paid to the solicitors from the husband’s share of the NAB controlled monies account.
The husband argued that whilst at trial he had sought that the parties’ property be divided such that he received 60 per cent of the net property and superannuation, it may be that if the matter were remitted, he would seek a different adjustment. When pressed in respect of that particular issue, the husband said he did not know what it would be but it might be 65 per cent. The husband did not advance any reason why contribution based entitlements or s 75(2) factors which would be taken into consideration on the basis of his evidence or his submissions at a rehearing would be different to those taken into consideration at the trial. For that reason I am not persuaded that further amounts of money should be held back to permit the husband to consider whether or not his position might be affected in the future by matters not yet identified. Accordingly, I will allow for release of funds in a manner in which would not have prejudiced the relief that the husband sought at the original trial. The husband can also have access to the funds which are available and those will be paid to his former lawyers.
I accept that there is a small prejudice to the wife but the sum provided to her will meet what she described as her immediate needs for funds and the delay until the hearing of the appeal is not a long one.
I now need to turn to consider the stay as it regards the parenting orders. At the time of the trial, the time that the children were having with the father was as a consequence of the interim orders. The parties both accept that the husband was exercising less time than is provided for in those orders.
Consequently, the change at least in the short term which the final orders bring about is not a change that is highly significant as far as the children are concerned. It is not a case in which the residence of the children is being changed where there is a significant reduction in the amount of time the children are seeing the husband. Nor is it suggested that the conditions will be any different (i.e. it remains supervised). If the husband is successful in his appeal, then the return to a set of orders with which he was not wholly complying again will not constitute a significant change. Accordingly, all of the factors which are usually in play when one considers an application for stay in parenting matters, as outlined in the authorities above, do not seem to arise in the circumstances of this case.
The husband said that X’s Bat Mitzvah is approaching and the orders preclude him from involvement. The mother said through her lawyers that it will occur after the appeal and in those circumstances the effect of the final orders on the father’s participation may await determination of the appeal.
I accept that there may have been a more significant argument in favour of the stay if the Court were considering the change which the finals orders will bring about in August 2023. However, I am confident that, if the husband prosecutes his application diligently, then it is likely that the Court will have both heard and determined the matter before that change takes place.
Accordingly, I decline to stay the parenting orders.
COSTS
At the conclusion of the proceedings I took submissions in respect of costs. The interveners did not seek costs. The husband was not legally represented and did not seek costs. The wife sought costs of her application for enforcement.
The general rule is that each party pay his or her own costs unless there are justifying circumstances. Justifying circumstances are to be found in the non-exhaustive list at s 117 of the Act. The Court does not require that there be any more than one of the matters in the list of considerations present before it may be appropriate to make an order for costs. In this particular case the wife sought her costs of having to bring enforcement proceedings to secure the fruits of the judgment. In response to that submission, the husband identified the fact that he had been negotiating with the lawyers who act on behalf of the mother in an effort to make plain to them that he was contemplating both an appeal and subsequent application for stay. Whilst the husband was in his rights to negotiate in the manner that he did, the fact that he was contemplating an appeal and seeking a stay was not a matter which the wife needed to take into consideration when determining whether or not she should bring an application to obtain that which the Court had ordered. Given that a stay does not operate as of right, she had an expectation that, on the date on which the orders provided, she would receive the funds which had been ordered to be paid to her. She has secured part of those funds only through bringing an application for enforcement. The other significant factor which weighs in the balance in determining that costs ought be ordered in this particular case is the financial circumstances of the parties. Certainly as regards income, the husband is in a far stronger financial position that the wife. Accordingly, I order costs in the sum sought.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 30 March 2023
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