Marston & Marston (No 3)
[2022] FedCFamC1F 133
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Marston & Marston (No 3) [2022] FedCFamC1F 133
File number(s): SYC 3204 of 2020 Judgment of: REES J Date of judgment: 11 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Application dismissed. Cases cited: Aldridge & Keaton [2009] FamCAFC 106 Division: Division 1 First Instance Number of paragraphs: 13 Date of last submission: 11 March 2022 In Chambers: 11 March 2022 Place: Sydney Applicant: Litigant in person Respondent: Freedman & Gopalan Solicitors ORDERS
SYC 3204 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MARSTON
Applicant
AND: MS MARSTON
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS:
1.That the husband’s application for a stay of orders made on 17 December 2021 is dismissed.
2.That the listing before the Honourable Justice Rees on 15 March 2022 is vacated.
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 a pseudonym Marston & Marston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
In 2021, I delivered reasons and made orders in relation to a defended application for a divorce order between Ms Marston (“the wife”) and Mr Marston (“the husband”).
The wife’s application for a divorce order had been heard by a judicial registrar and the order made. The husband sought to review that order and thus the matter was heard by me as a hearing de novo.
The husband was unsuccessful and a divorce order was made.
On 17 December 2021, I ordered that the husband pay the wife’s costs of the application for divorce on an indemnity basis in the sum of $39,176, such payment to be made within three months, that is, by 17 March 2022.
On 20 December 2021, the husband filed an appeal against the divorce order and against the order for indemnity costs and he now, by an application filed 19 January 2022, seeks a stay of the operation of the order in relation to costs. That application is supported by an affidavit of the husband stating, inter alia, that he has filed an appeal against the costs orders and that the costs order “has to be stayed”.
The husband was directed to file any written submissions by 22 February 2022.
On 1 March 2022, my associate emailed both parties, advising that I intended to deal with the stay application in chambers without further attendance and inviting the wife to make any submissions in writing by 11 March 2022.
No submissions have been received.
The principles governing an application for a stay pending appeal are well known and set out in the decision of the Full Court in Aldridge & Keaton [2009] FamCAFC 106 in the following terms:
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.
The wife is entitled to the benefit of the judgment and to the presumption that the judgment is correct. The mere fact that the husband has filed an appeal is insufficient to ground a stay.
Absent proceedings to enforce the order for costs against the husband in India, his appeal is not rendered nugatory if the stay is not granted.
Accordingly, the husband has not established that a stay should be granted.
The application will be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 11 March 2022
0