MAIDA & MAIDA

Case [2019] FCCA 2474

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAIDA & MAIDA [2019] FCCA 2474
Catchwords:
FAMILY LAW – Application by Respondent Father for stay and review of previous Orders regarding sale of former marital residence – continued and protracted non-compliance by Respondent Father with Orders for filing material – unsubstantiated claims by Respondent Father regarding available finances – Applicant Mother pressing Orders for sale of former matrimonial home – Stay granted conditional upon Respondent Father filing evidence as directed – Costs.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172.
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681
K & B [2006] FamCA 848; (2006) FLC 93-288
Applicant: MS MAIDA
Respondent: MR MAIDA
File Number: CAC 642 of 2019
Judgment of: Judge Neville
Hearing date: 28 August 2019
Date of Last Submission: 28 August 2019
Delivered at: Canberra
Delivered on: 5 September 2019

REPRESENTATION

Solicitors for the Applicant: Campbell & Co
Solicitors for the Respondent: Self-Represented
Solicitors for the Independent Children's Lawyer: Robinson + McGuinness

ORDERS

  1. The Orders dated 20th August 2019 be conditionally stayed upon the Respondent Father/Husband completing all of the following matters within 14 days of the date of these Orders, being by close of business on 19 September 2019:

    (a)The filing and service of independent evidence that finance (e.g. bank statement/s) is immediately available to him to enable him to pay out the Applicant Mother/Wife of her interest in the former matrimonial home located at A Street, Suburb G, New South Wales; and

    (b)The filing and service of a Response, Financial Statement, Notice of Risk and Affidavit material; and

    (c)The payment of the Applicant Mother/Wife’s costs of and incidental to the Court events on 3rd June, 11th July and 20th August 2019.

  2. For the purpose of Order 1(c), such payment is to be as agreed between the parties in writing and failing agreement, the Applicant Mother/Wife is to provide a schedule of relevant costs as soon as practicable and the Respondent Father/Husband is to attend to payment of same into an account nominated by the Applicant Mother/Wife.

  3. At the expiration of the 14 day period specified in Order 1 of these Orders, the solicitor for the Applicant Mother/Wife is to advise the Court by way of affidavit as to whether or not the Respondent Father/Husband has complied with the provisions of Order 1.

  4. The matter remains listed for further directions on 7 November 2019 at 2:00pm in CANBERRA.

THE COURT NOTES THAT:

(A)Absent compliance with these Orders by the Respondent, the Court may make Orders, without further notice to either party, to…

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MAIDA & MAIDA [2019] FCCA 2474
Case
[2019] FCCA 2474
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Respondent Father for a stay and review of previous orders made on 20th August 2019, which related to the sale of the former marital residence. The Applicant Mother was pressing for the sale of the home. The Respondent Father had a history of continued and protracted non-compliance with orders requiring him to file material, and had made unsubstantiated claims regarding his available finances.

The Court was required to determine whether to grant a stay of the existing orders. In doing so, the Court considered the principles applicable to applications for a stay of orders, including the discretionary nature of such applications, the onus on the applicant to establish a proper basis for the stay, and the entitlement of a party to the benefit of a judgment. The Court also considered factors such as the bona fides of the applicant, the balance of convenience, the competing rights of the parties, the risk of an appeal being rendered nugatory, and a preliminary assessment of the strength of the proposed appeal.

The Court reasoned that while the onus was on the Respondent Father to establish a proper basis for the stay, it was not necessary to demonstrate "special" or "exceptional" circumstances. The Court noted that a stay could be granted on terms that were fair to all parties, which might involve weighing the balance of convenience and the competing rights. The Court also acknowledged the importance of considering the risk that an appeal could be rendered nugatory if a stay was not granted, and the desirability of limiting changes to living arrangements.

The Court ordered that the orders dated 20th August 2019 be conditionally stayed. This stay was conditional upon the Respondent Father completing several matters within 14 days, including filing independent evidence of available finance to pay out the Applicant Mother's interest in the former matrimonial home, filing a Response, Financial Statement, Notice of Risk, and Affidavit material, and paying the Applicant Mother's costs of specific court events. The Court also noted that absent compliance, further orders might be made to ensure compliance, and that the original orders would remain in force until full compliance.

Orders

Orders of the court

1.

The Orders dated 20th August 2019 be conditionally stayed upon the Respondent Father/Husband completing all of the following matters within 14 days of the date of these Orders, being by close of business on 19 September 2019:

(a) The filing and service of independent evidence that finance (e.g. bank statement/s) is immediately available to him to enable him to pay out the Applicant Mother/Wife of her interest in the former matrimonial home located at A Street, Suburb G, New South Wales; and

(b) The filing and service of a Response, Financial Statement, Notice of Risk and Affidavit material; and

(c) The payment of the Applicant Mother/Wife’s costs of and incidental to the Court events on 3rd June, 11th July and 20th August 2019.

2.

For the purpose of Order 1(c), such payment is to be as agreed between the parties in writing and failing agreement, the Applicant Mother/Wife is to provide a schedule of relevant costs as soon as practicable and the Respondent Father/Husband is to attend to payment of same into an account nominated by the Applicant Mother/Wife.

3.

At the expiration of the 14 day period specified in Order 1 of these Orders, the solicitor for the Applicant Mother/Wife is to advise the Court by way of affidavit as to whether or not the Respondent Father/Husband has complied with the provisions of Order 1.

4.

The matter remains listed for further directions on 7 November 2019 at 2:00pm in CANBERRA.

THE COURT NOTES THAT:

(A) Absent compliance with these Orders by the Respondent, the Court may make Orders, without further notice to either party, to ensure compliance with them, including (if necessary) removal of either person or personal property from the former marital residence;

(B) The Orders dated 20th August 2019 remain in force until such time that the Respondent complies fully with the provisions set out in Order 1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note the following from the Full Court’s decision in Aldrige & Keaton (Stay Appeal).[1] At [17] – [18], the Court said (emphasis in original):[1] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications, where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B [2006] FamCA 848; (2006) FLC 93-288.[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 The King (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 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:· 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.

Ratio Decidendi

Legal Principle Established

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