KENNEDY & MASUYO

[2013] FamCA 36

FAMILY COURT OF AUSTRALIA

KENNEDY & MASUYO [2013] FamCA 36

FAMILY LAW – DE FACTO PROPERTY- Stay application pending appeal – where there is no substantial ground of appeal – where a successful appeal would not be rendered nugatory in circumstances where the de facto wife agreed to an order not to deal with or further encumber the subject land – where, on the balance of convenience, the de facto husband has not established a stay should be granted – application refused.

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131

APPLICANT: Mr Kennedy

RESPONDENT: Ms Masuyo

FILE NUMBER: CSC 196 of 2010

DATE DELIVERED: 17 January 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 September 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Bottoms English

Orders

Orders made 12.9.12

1. I will treat order 4 as sought in the husband’s Application in a Case filed 31 August 2012 as an application for a stay of order 4 made by me on 3 July 2012.

2. The husband’s application for a stay be dismissed upon the basis that the wife has consented to the following order.

3. The wife shall not transfer, encumber or otherwise deal with the subject land as referred to in order 2 made 3 July 2012 except that the wife shall be at liberty to enter into a lease with a person in respect of the subject land for a period not exceeding six months and the wife thereafter has liberty to apply for an extension of that time should the appeal not be heard and determined.

4. Liberty granted to the wife to apply for a discharge of the preceding order in the event the husband does not expeditiously prosecute his appeal.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 196 of 2010

Mr Kennedy

Applicant

And

Ms Masuyo

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 12 September 2012 I made an order dismissing the de facto husband’s application for a stay and imposing a condition on the wife. I reserved my reasons and now provide them.

2. The de facto husband has filed an Application in a Case on 31 August 2012 seeking, in effect, that the orders I made on 3 July 2012 be stayed. The de facto husband seeks:

   1.That [Ms Masuyo] admit that she is not sole rights [sic] and property title holder of [M Street, X].

   2.That [Ms Masuyo] be restrained from damaging any property belonging to [Mr Kennedy].

   3.For [Ms Masuyo] to admit that Katter leases do exsits [sic] and it is not hers or her fathers name on that lease.

   4.An order be made that I [Mr Kennedy] my partner [Ms SN], my son [D Kennedy] stay on [M Street, X] and I continue to be available for work at that address.

   5.That [Ms Masuyo] admit that Katter leases do extinguish native title and I should not have to vacate forethwith [sic] as lease application exsists [sic] in another name.

3. The orders that I made on the 3 July 2012 are in the following terms:

   1.Pursuant to s 90SM and s 90SS(1)(k) Family Law Act 1975 (Cth) an Order be made in accordance with paragraphs 2 to 5 below.

   2.A declaration that the applicant [Ms Masuyo] has sole right, title and interest in the land situated at [X] Island in the Torres Strait, Queensland (“the subject land”).

   3.The de facto husband relinquish any right, title or interest (if any) that he has in the subject land.

   4.The de facto husband forthwith vacate the subject land.

   5.Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively or any other debt in their respective names.

   6.Pursuant to s 114(3) Family Law Act 1975 (Cth), the de facto husband be restrained and an injunction be granted restraining the de facto husband from causing damage to the subject land or any structure on the subject land

4. The de facto wife opposes the granting of a stay.

THE LAW APPLICABLE TO A STAY OF A PROPERTY ORDER PENDING AN APPEAL

1. In Jackson & Balen [2009] FamCAFC 131, the Full Court said at paragraph 28:

   The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy RoyaleInvestments Pty Ltd (1986) 161 CLR 681). Those 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 application must be bona fides;

   ·   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.

WHETHER THERE ARE SUBSTANTIAL GROUNDS OF APPEAL AND NOT MERELY A DELAYING TACTIC

1. A notice of appeal has been filed against my orders on 30 July 2012. That document lists four grounds of appeal.

Ground 1 and 2

1. In these grounds, the de facto husband challenges my finding that M Street, X, is subject to native title (see paragraph 58 of my Reasons).

2. The de facto husband asserts the property is subject to a Katter lease that extinguishes native title. This argument was not raised during the hearing. In fact, as I noted at paragraph 53 of my Reasons, the de facto husband conceded at the hearing that the whole of X Island is covered by native title.

3. On 12 September 2012, the de facto husband said that he was entitled to a stay because he did not have all the information available to him during the final part of the property proceedings. This was inconsistent with the affidavit of the de facto husband in support of his stay application sworn 20 August 2012, where the de facto husband says that “whilst prepairing [sic] for [the] property settlement case… I became aware of Katter leases.” The husband says that it was not until after the hearing that he was able to collect more information on the issue.

Ground 3 and 4

1. The de facto husband asserts that he works from the property at M Street, X Island and is financially unable to go anywhere else. These grounds disclose no error. The de facto husband does not address paragraph 80 of my Reasons for Judgment where I said:

   The de facto husband argues that he has lived at this property Lot 44 … for a period of 14 years (although not continuously through that period) and that it is his base for his current work. That argument has some weight. However, the de facto husband is residing with his partner Ms [N]. I have evidence that Ms [N] traditionally owns some land on [X Island], and that she currently earns $200 per week. On the second day of the hearing, the de facto husband also gave evidence that he might be able to reside in another part of [X] Island (with the [X] Council’s permission).

Conclusion on grounds for appeal

1. I do not consider the appeal is based on substantial grounds.

WHETHER THE APPEAL CAN BE HEARD WITHIN A REASONABLE AMOUNT OF TIME

1. The de facto husband seeks to delay the de facto wife having the benefit of a judgment which she is entitled to receive.

2. I have not been informed that a date to hear the appeal has been set. The de facto husband said that he had filed his appeal books. I am unable to say whether the appeal can be heard within a reasonable time.

WHETHER A SUCCESSFUL APPEAL WOULD BE RENDERED NUGATORY

1. The de facto wife has agreed to an order that she not further deal with or encumber the land except for entering into a short term lease for no more than six months. In those circumstances, the refusal of the application for a stay would not render a successful appeal nugatory.

WHETHER THERE IS HARDSHIP TO EITHER PARTY IN GRANTING OR NOT GRANTING THE STAY

1. The de facto wife is currently residing on Z Island. She has indicated that she does not intend to return to X Island if the de facto husband remains there (see paragraph 85 of my Reasons). As I noted at paragraph 85 of my Reasons, the de facto wife will be able to rent out the property and receive income from that arrangement. If the stay is granted, the de facto wife will be denied that potential income.

2. A refusal to grant the stay will require the de facto husband to vacate the property on X Island. He says that he “cannot afford to go anywhere.” As I said earlier, the de facto husband gave evidence during the hearing that his de facto partner had property on the island, and that he might be able to reside in another part of X Island (see paragraph 80 of my Reasons for Judgment).

3. The de facto husband has not established that the balance of convenience would point in the direction of granting a stay.

CONCLUSION

1. Taking into account the matters discussed, I dismiss the de facto husband’s application to stay the orders.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 17 January 2013

Associate: 

Date:  17.1.2013