Macris & Galanis
[2015] FCCA 2623
•22 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACRIS & GALANIS | [2015] FCCA 2623 |
| Catchwords: FAMILY LAW – Stay – application for stay pending determination of Appeal – principles considered – parenting proceedings – property proceedings – stay of property orders granted on condition that Applicant pay an amount as an interim property settlement. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 79, 80 |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Besser & McCoy [2008] FamCAFC 27; (2008) FLC 93-361; 217 FLR 182 Clemett & Clemett (1981) FLC 91-013 CSN & JBN (1998) FLC 92-833 Galanis & Macris [2015] FCCA 2567 |
| Applicant: | MR MACRIS |
| Respondent: | MS GALANIS |
| File Number: | WOC 576 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Mr Wong |
| Solicitors for the Respondent: | Hansons Lawyers |
ORDERS
UNTIL FURTHER ORDER
Orders 4, 5, 6, 7 and 8 made on 12 June 2015 are stayed pending the determination of the Appeal lodged by the father on 9 July 2015 in proceedings Number EA 108/2015; and
Order (1) made on 30 June 2015 is stayed pending the determination of the said Appeal in proceedings EA 108/2015 on condition that the husband pay to the wife the sum of $50,000.00 by way of interim property settlement within 42 days of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Macris & Galanis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 576 of 2010
| MR MACRIS |
Applicant
And
| MS GALANIS |
Respondent
REASONS FOR JUDGMENT
Application
These are Applications for a stay of parenting orders made on 12 June 2015 and property Orders made on 30 June 2015. The husband has appealed against the Orders.
Procedural History
On 12 June 2015 I made Orders in parenting proceedings providing that (in summary):
a)the parties were to have equal shared parental responsibility for their two children, X, born on (omitted) 2004 and Y, born on (omitted) 2006;
b)the children were to live with their mother; the father was to spend time with the children on alternate weekends, for half of the mid-year school holidays, for two weeks during the Christmas/January school holidays and on special occasions; and
c)other ancillary orders.
On 30 June 2015 I made final Orders in property proceedings between the parties, providing that (in summary):
a)within three months the husband was to pay to the wife the sum of $400,000.00;
b)the wife was declared the sole owner of a property at Property S, New South Wales;
c)the husband was declared the sole owner of properties at Property A1 & A2, New South Wales; and
d)The parties would retain other personal property then in their possession or control.
On 9 July 2015 the husband filed a Notice of Appeal against the parenting Orders of 12 June 2015. On that same day he also filed a Notice of Appeal against the property Orders of 30 June 2015.
On 10 July 2015 the husband filed an Application in a Case in which he sought a stay of the parenting and property orders the subject of his Appeals.
In his Application in a Case, the husband sought a stay order in the parenting matter providing:
2. That Orders numbered 4, 5, 6, 7 and 8 made 12 June 2015 be stayed pending the determination of the appeal, proceedings number EA 108/2015 and the following Orders shall apply until the determination of the appeal:
(The husband here set out a suite of proposed orders under the heading “Parenting matters” which need not be set out here).
The husband also sought a stay order in the property matter providing:
3. That Order 1 of Orders dated 30 June 2015 be stayed pending the determination of the appeal proceedings number EA 108/2015 on condition that the husband pay the sum of $50,000.00 to the wife by way of property settlement within 42 days.
On 17 July 2015 the wife filed a Response to an Application in a Case in which she opposed Application in a Case. The orders that she sought are:
1. That the Application in a Case be dismissed.
2. That in the alternative Order 1 of the Orders made 30th June 2015 be stayed for a period of 21 days following the delivery of written judgement upon the Husband paying to the Wife the sum of $50,000.00 by way of property settlement.
3. That the Applicant pay the Respondent’s costs.
Evidence and Submissions
The husband relied upon an affidavit sworn on 9 July 2015 in which he deposed that:
a)From May 2010 until 12 June 2015 the children X and Y lived with him and the wife on an equal shared care basis;
b)Under the orders of 12 June 2015 the children are only able to stay with him for four days and fortnight and if the orders were not to be stayed then the children would suffer the loss of the additional three nights per fortnight with him; and
c)He was informed that the appeal is not likely to be heard within the next ten to twelve months[1].
[1] Affidavit of Mr Macris 9.7.2015 paragraphs [2]-[4]
As to the property Orders, the husband deposed that he does not have the funds to meet the required payment of $400,000.00 and would be forced to sell his real estate in order to do so.[2]
[2] Ibid at [6]-[8]
The husband annexed to his affidavit copies of the Notices of Appeal.
The wife deposed in her affidavit of 15 July 2015, filed on the day of the hearing, that:
a)once the parenting Orders were made on 12 June 2015 she and the husband implemented them immediately;
b)the parties’ daughter X was very happy about the change in arrangements and the wife noticed “an instant change in X’s behaviour”[3];
c)she observed that the husband had again asked the Court to change the parenting Orders and expressed concern that if the orders were changed again that this would have a detrimental impact upon X, who appeared “very settled in this new routine”[4];
d)the wife expressed concern about the husband’s ability to provide for the children financially and observed that she had received correspondence from the Child Support Agency advising her that the husband had asked them to collect child support payments from her;
e)she has applied for a change of assessment of the child support;[5] and
f)as to the property proceedings, “I am happy for the stay application to be granted in relation to the property orders but only for a period of time after His Honour is able to deliver judgment as this would allow Mr Macris and his lawyer time to consider those reasons and Mr Macris’ appeal. I would accept a payment of $50,000.00 within 28 days if this was ordered by the Court”.[6]
[3] Affidavit of Ms Galanis 15.7.2015 at [8]-[9]
[4] Ibid at [11]
[5] Ibid at [13]-[16]
[6] Ibid at [21]
Mr Millar of Counsel, for the husband, submitted that the appeal was not likely to be heard for another ten months. His client gave an undertaking that he would diligently prosecute his Appeals. He further submitted that the husband has good grounds for his Appeal and that there was no urgency in putting these orders into effect. The case on its face is not urgent and it was in the best interests of the children to avoid multiple changes in their arrangements
Mr Millar referred the Court to the decisions of Aldridge & Keaton (Stay Appeal)[7], Besser & McCoy[8], and CSN & JBN[9].
[7] [2009] FamCAFC 106
[8] [2008] FamCAFC 27; (2008) FLC 93-361; 217 FLR 182
[9] (1998) FLC 92-383
In Besser & McCoy, the Federal Magistrate at first instance had published his reasons some 35 days after the making of the Orders which gave rise to the Appeal. It was held on Appeal that the practical effect of this delay in providing the Reasons for Judgment was to preclude the Appellant from filing an appeal within time with knowledge of its prospects of success or from successfully seeking a stay of the orders.
In CSN & JBN, it was held that the effect of not granting a stay could have led to a situation where the child moved from one party’s house to that of the other, and then would be placed back into the care of the first party if the appeal were successful. Such a situation was undesirable and ought to have been avoided.
Mr Wong of Counsel, for the wife, submitted that the husband had conceded that an equal time arrangement was not, in his view, in the best interests of the children. He referred the Court to the decision Clemett & Clemett[10], where it was held by the Full Court of the Family Court that, in determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any change in custodial arrangements should be limited as much as possible.
[10] (1981) FLC 91-013
Mr Wong expressed concern about the need to avoid “systems abuse” of the children.
Applicable Principles
In my view, with respect, a helpful guide for trial judges dealing with applications for a stay pending the determination of an appeal against parenting orders can be found in Aldridge & Keaton (Stay Appeal)[11]. The decision contains in paragraph [18] a useful set of principles to be considered, including (relevantly):
[11] supra
a)The onus to establish a proper basis for a stay is on the applicant for the stay;
b)A person who has obtained a judgment is entitled to the benefit of that judgment;
c)A person who has obtained a judgment is entitled to presume the judgment is correct;
d)The mere filing of an appeal is insufficient to grant 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 will 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;
h)Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
i)The desirability of limiting the frequency of any change in a child’s living arrangements;
j)The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
k)The best interests of the child are a significant consideration.
This is not an exhaustive list but it encapsulates the matters that appear to be relevant in this case.
Conclusions
I have considered the matter in the light of the principles set out above. As far as the property proceedings are concerned, if the Appeal is not likely to be heard for another ten months then the refusal to stay the property Orders would be likely to render the appeal nugatory. In any event, the wife had conceded that the stay could be granted for a limited period of time, conditional upon the husband paying to her the sum of $50,000.00.
I propose to grant a stay of the property Orders on condition that the husband pay to the wife the sum of $50,000.00 by way of interim property settlement within 42 days.
As for the parenting Orders, the matter is more problematic. The application is quite clearly made bona fide and it cannot be said that the appellant does not have an arguable case. It is also desirable to limit the frequency of any change in a child’s living arrangements.
Rather reluctantly, I grant the application for a stay of the parenting Orders.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 23 September 2015
4
2
2