Malcher and Malcher (No 2) - [2015] FamCA 298

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER (NO 2)

[2015] FamCA 298

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the father sought a stay of orders pending outcome of appeal – Where orders were made by the Court following a finding that the father had committed three contraventions of current parenting orders without reasonable excuse – Where the father refused to enter into a good behaviour bond and was fined $5100 – Where a stay of the orders was granted subject to certain conditions.

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 106
Vadisanis & Vadisanis [2013] FamCAFC 90

APPLICANT:

Mr Malcher

RESPONDENT:

Ms Malcher

FILE NUMBER:

SYC

3808

2012

DATE DELIVERED:

24 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

24 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Malcher in person

SOLICITOR FOR THE RESPONDENT:

Ms Morozov, solicitor of Barkus Doolan Family Lawyers

Orders

That the orders made on 27 February 2015 are stayed pending completion of the father’s appeal on condition that the father complies with all current court orders.
That in the event that the father is found in breach of any current court order the stay will be immediately discharged.
That all costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher (No 2) 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: SYC 3808 of 2012

Mr Malcher

Applicant

And

Ms Malcher

Respondent

REASONS FOR JUDGMENT

This is an application in a case filed by Mr Malcher on 30 March 2015. For convenience, I shall refer to Mr Malcher as “the father”. The father has filed an appeal against orders made by me on 27 February 2015. He now seeks a stay of those orders until the appeal is heard or until the final hearing in the substantive parenting proceedings by Le Poer Trench J. Those substantive proceedings are listed for hearing to commence on 20 July 2015.
The respondent is Ms Malcher and, for convenience, I shall refer to Dr Malcher as “the mother”.
The orders made by me on 27 February 2015 followed findings which I had made that the father had committed three contraventions of current parenting orders under the Family Law Act1975 (Cth) (“the Act”) without reasonable excuse. The orders are as follows:
1.That the father forthwith enter into a bond on the conditions that he be of good behaviour for a period of eighteen (18) months, to comply with all current court orders and to acknowledge himself to owe to the Commonwealth of Australia the sum of $5000.00 to be made and levied on his several goods and chattels, land and tenements to the use of the said Commonwealth if he shall fail in these conditions.
2.That it is noted that the father has informed the Court that he is not prepared to enter into a bond and that in these circumstances it is proposed to impose a fine of $5100.00 on the father.
3.That a fine of $5100.00 is imposed on the father to be paid to the Registry Manager, Sydney within thirty (30) days.
4.That the father pay to the mother’s solicitors within 60 days her costs of the contravention proceedings as agreed or as assessed by the Court.
The father vigorously submits that he does not have the financial capacity to pay the fine. The father also submits that he does not have the capacity to pay to the mother’s solicitors her costs of the contravention proceedings. I note that on 27 February 2015 I had been informed that the mother is a practising surgeon earning an amount in the vicinity of $400 000 per year and the father informed me that his then current income was approximately $100 000. The father has informed me today that although that was the position as at that time, he has not been in receipt of any income since that time.
The father said that he has had a considerable amount of legal costs which he has had to pay and that he has still outstanding costs owing to his former solicitors. He said that he has a current application seeking an order that his former solicitors be required to relax their lien over his solicitor’s file to enable him to be able to prepare the substantive proceedings. He said that if he has to pay the fine in circumstances where he has lodged an appeal against that liability, the big losers will be the children.
Ms Morozov for the mother referred to the fact that the exercise or the grant or refusal to grant a stay is a matter for the Court’s discretion. Ms Morozov referred me to paragraph 71 in the decision of the Full Court of this Court in Vadisanis & Vadisanis [2013] FamCAFC 90 which sets out principles to be applied in matters where the Court is considering stay applications. I arranged for a copy of those principles to be made available to Mr Malcher, and he quite ably, with respect, addressed me in respect of the relevant matters.
Ms Morozov’s submission was as follows. The mere filing of an appeal is an insufficient basis for granting a stay. The mother, as the successful litigant, is prima facie entitled to the benefit of the judgment in her favour. This is a particularly important factor in circumstances where it could well be a long time before the father’s appeal is able to be heard, given experience in other matters which are currently in the process of finding their way to a hearing in the Full Court. The mother opposes the father’s appeal. As the recipient of the orders, the mother ought to be entitled to the fruits of the litigation and entitled to have her costs paid.
I refer to the Full Court decision of this Court in Aldridge & Keaton [2009] FamCAFC 106, where the Full Court made reference to the relevant principles. I have noted that the mere filing of an appeal is an insufficient basis for granting a stay. Mr Malcher has the onus of establishing a proper basis for the stay. It is not necessary to show special or exceptional circumstances. I accept that the mother is prima facie entitled to the benefit of the judgment.
I accept Mr Malcher’s bona fides. I accept that he considers he has a genuine basis for presenting his appeal. I have had an opportunity of looking at the Notice of Appeal. Mr Malcher has not been responsible for any delay in making this application.
I share Ms Morozov’s concern that it is likely to be some time before the appeal can be heard. That accords with my general experience of the progress of matters in the Appeal Division.
The next matter is a weighing of the risk that the appeal may be rendered nugatory if a stay is not granted, and that would be a substantial factor. It cannot be said, on the basis of the orders that I have made, that if a stay was granted that the appeal would be rendered nugatory. What would happen would be that, assuming the father had paid the fine and his appeal succeeded, he could be reimbursed by the Commonwealth. A similar situation could apply if he had paid the mother’s costs. That is, she could reimburse him if necessary. Accordingly, I am not satisfied that to refuse the stay would cause the appeal to be rendered nugatory.
The next matter is some preliminary assessment of the strength of the proposed appeal and whether Mr Malcher has an arguable case. I must say I always regard this particular principle as a difficult one for trial judges. It is difficult for a trial judge to form a view about the likely prospects of success of appeal. I have looked at the grounds in the notice of appeal, and it is difficult for me to form a view one way or the other about that matter.
The next matter is that a stay may be granted on terms. This may involve weighing the balance of convenience and the competing rights of the parties. In my view, this also involves another matter. That is the best interests of the children. Mr Malcher has indicated that to impose the fine and the costs order would inevitably affect his financial capacity to provide for the children when he has the children with him under the current orders. In my view, there is also another matter that relates to the best interests of the children. This is the importance of their parents complying with current court orders. This is a factor also which must be relevant in the exercise of the discretion.
In weighing all of those relevant matters, what is to be achieved by not granting a stay in respect of the fine? As I say, the machinery of the Commonwealth would be brought into operation. The Commonwealth would endeavour to enforce the fine against Mr Malcher. As I have said, if the money was able to be obtained and then, ultimately, the Court was to find that the appeal in respect of the fine should succeed, the Commonwealth could refund the money to Mr Malcher.
Mr Malcher’s argument about hardships caused to him by having to pay the fine is interesting, bearing in mind that he is the person who put himself in that position. As would be clear from my reasons of 27 February 2015 and ought to be clear from what I have already said today, I made the order for Mr Malcher to enter into a bond. I made it clear to him at the time that that would not cost him anything unless he was to subsequently commit a breach. I indicated that, if he was not prepared to enter into the bond, then I would have no option other than to impose a fine, because that is what the legislation requires. I informed him that if I was to impose a fine, that would become an immediate liability, whereas the bond would not involve any immediate liability. So, in effect, by Mr Malcher’s own choice, he has brought about the liability for the $5100.
Be that as it may, in my view, weighing the relevant considerations, so far as the fine is concerned, that is not a matter of immediate necessity. And it seems to me, in respect of that matter, the stay would be appropriate.
So far as the costs order is concerned, Ms Morozov has said that her client ought to be entitled to the costs. She said her client will be prejudiced if she does not receive some money for the costs, the inference being particularly in the context of the lengthy litigation between the parties and what must be a huge cost to each of them in respect of that. If the mother’s costs were paid and the appeal succeeded, as if the had been paid, there could be re-imbursement to the father. But this would require further orders or negotiation in an already very difficult situation between the parties. My view about this matter is that it would be preferable for this not to occur. In the exercise of my discretion, I would stay the operation of that order also.
However, I am only prepared to grant the stay on the basis that a condition of the stay would be the continuing compliance by Mr Malcher with all current court orders. To impose such a condition should have the effect of assisting him to achieve compliance with the court orders. It will not impose upon him any duty over and above the duty which is already upon him pursuant to the court orders. In the event that there is a finding that he has breached court orders, then the stay would be discharged and he would become immediately liable for those amounts.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 24 April 2015.

Associate:

Date: 28 April 2015