MASIH & MASIH (STAY)

[2013] FamCA 434

FAMILY COURT OF AUSTRALIA

MASIH & MASIH (STAY) [2013] FamCA 434

FAMILY LAW – ORDERS – Stay – Where the applicant has lodged an appeal – Whether failure to grant a stay would render the appeal nugatory – Where the applicant’s case on the proposed appeal is not strong

Family Law Act 1975 (Cth) s 106A, s 106B

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

APPLICANT: Mr P Masih

RESPONDENT: Ms Masih

FILE NUMBER: BRC 9502 of 2009

DATE DELIVERED: 11 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 6 June 2013

REPRESENTATION

FOR THE APPLICANT: Mr P Masih in Person

COUNSEL FOR THE RESPONDENT: Ms Carmody

SOLICITOR FOR THE RESPONDENT: DA Family Lawyers

Orders

1. The applicant’s Application in a Case filed 21 May 2013 for a stay of orders pending appeal, is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masih & Masih (Stay) 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 BRISBANE

FILE NUMBER: BRC 9502 of 2009

Mr P Masih

Applicant

And

Ms Masih

Respondent

REASONS FOR JUDGMENT

1. On 11 April 2013, I delivered judgment in substantive property division proceedings between the two parties in this matter after having a four day trial that took place over 13 to 18 February, 2013.

1. Most significantly, my orders provided for an amount of money ($282,247) held in trust for both parties by the wife’s solicitors to be paid to the wife as part of what I determined was her entitlement to property adjustment as between the parties.

1. On 9 May 2013, the husband filed a Notice of Appeal against my judgment and by Application in a Case filed 21 May 2013 he now seeks an order that my orders of 11 April, 2013 be stayed pending the hearing of his appeal.

1. The application for a stay is opposed by the wife.

The principles by which such applications are determined

1. Although the husband was represented by counsel at the trial, he was unrepresented on the hearing of his stay application. Unsurprisingly, he had no idea of the principles that apply to the determination of such application. They are well established.

1. The decision to grant a stay of orders pending the hearing of an appeal against those orders is a discretionary one. Matters to be remembered and taken into account in the exercise of the discretion include:[1]

   [1] Aldridge and Keaton (Stay Appeal) [2009] FamCAFC 106.

(i)The onus to establish a proper basis for the stay is on the applicant but it is not necessary for any “special” or “exceptional” circumstances to be demonstrated;

(ii)A person who has obtained a judgment is entitled to the benefit of that judgment and is entitled to presume that it is correct.

(iii)Merely filing an appeal is not sufficient grounds for a stay;

(iv)The bona fides or otherwise of the applicant;

(v)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;

(vi)A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this is indeed a substantial factor in determining whether it will be appropriate to grant a stay;

(vii)A preliminary assessment of the strength of the applicant’s case on the proposed appeal;

(viii)The period of time in which the appeal can be heard.

1. When asked at the hearing of his application for a stay, as to how much of the money that was ordered to be paid to the wife he will be seeking to be paid to him on a re-trial or a re-exercise of the discretion by the Full Court if his appeal is successful, the applicant husband informed the Court that it would be all of it. He also asserted that if no stay was granted there would be none of the money left at the end of the appeal because “that is the sort of people the wife and her family are”. I inferred from that he considered that the money would be dissipated by the wife and that his submission was, effectively, that his appeal would be rendered nugatory by a refusal to grant the stay.

1. In the evidence the wife filed on this stay application little was said of the wife’s intentions with respect to the money that she is to get pursuant to my orders.  However, the Court was informed that the wife is required to pay $45,000 to Legal Aid Queensland as her contribution towards the funding provided to her throughout the proceedings. That would leave around $237,000 plus any further interest accruing on that sum.

1. I recall that the wife’s evidence for the trial included a statement of intention to buy a home for her and the children to live in and that she expected to require the assistance of her family to purchase a suitable property in addition to whatever money she obtained by order in the proceedings.

1. Despite what the husband asserted to me about the wife and her family, having no reason to doubt the veracity of the wife’s intention in respect of the use of the money, I am satisfied that she is likely to put the money into the purchase of a property. As such, there is likely to be property available against which any orders the husband obtains if he is successful on his appeal could be made. Indeed, even if the wife did not purchase a property and tried to “hide” the money through her family to try to defeat any further orders that might be obtained by the husband on appeal, such disposition of those funds could potentially be set aside by the Court using the powers available pursuant to s 106B of the Family Law Act 1975 in any event. As such, it is not a given that the refusal to grant the stay sought renders the appeal entirely nugatory.

1. As to the strength of the applicant’s proposed appeal, I consider it best to start by setting out in full the grounds of the appeal that he has listed in his Notice of Appeal. They are:

1.Costs reserved by Federal Magestrates (sic) Courts in relates to stopping the sale of the house have been have been (sic) ignored.

2.Damage done to the house by the wife and an unchallanged (sic) report prepared by [Mr HH] in relates to the impact on valuation by the damage done by the wife and her family to the house was not taken into consideration whilist (sic) making orders.

3.Rental appraisal prepared by [Mr HH] was also not taken into consideration whilist (sic) making orders.

4.[The wife] and her father gave further false evidence which can easily proved to be false.

5.Affidavits prepared by the Quantity surveyors and the builder in relates to costing, and affidavits sworn by [Mr F], [Mr D], the carpenters, the painters and the valuers have not been taken into consideration whilst making orders.

6.Money borrowed from the family and friends which was not challanged (sic) was also not considered whilst making orders.

7.[The wife]’s inconsistent statements about the cost of the construction of both the house were also not taken into consideration.

8.[Mr A] were caught giving false evidence about his department of transport forms and gave further false evidence which can be proven.

9.[Mr O] gave false evidence in relates to the properties I and my family have in Pakistan but [the wife] admitted that I had an investment property in Pakistan in 2002.  It was also proven from the balance sheet obtained from the Commonwealth Bank home loan file.  The evidence of [the wife] and [Mr O] contradicts and the court failed to take into consideration their contradicted evidence whilst making orders.

10.The Court also failed to take into account my unchallanged (sic) facts in relates to the sale of the house.

11.The Court also failed to take into consideration the submissions made by the husband on 7 March 2003, which referred to further documentary evidence to discredit wife’s evidence.

12.During the cross examination Wife gave false evidence that she was the only earner during the period of 2000, which was incorrect and it played an important role in the making of these orders. I took au-study and then worked for [Company JJ] during that time.

13.My legal representative was also negligent in relying on important affidavit and providing me with the filed documents by other on time.

13.(sic) There were a lot of other important evidence that has been ignored while making the decision.

1. Clearly, the applicant husband has drawn these grounds of appeal himself. Consideration of these listed grounds, as unorthodox as many of them clearly are, leads me to the conclusion that the appeal has little chance of success in any event. The husband’s very lengthy affidavit of evidence filed in support of his stay application and his lengthy oral submissions on the application went little way towards persuading me otherwise.

1. As to listed ground 1, I recall no cross-examination at the trial by the husband’s counsel going to this particular issue. No oral submission was made at the end of the trial that I should be doing anything about these reserved costs and there was nothing in the written submissions that were filed for the husband that directed my attention to the need to make any determination about the issue of those reserved costs.

1. As to listed ground 2, again I recall no-cross examination of the wife by counsel for the husband during the trial going to the issue of damage to the property that was sold that would have supported any finding of wilful, reckless or negligent damage being caused by the wife to the property that would even have been the foundation upon which a submission could be made that such a finding would ordinarily sound in some measurable way in the ultimate determination. Indeed, no oral submission was made that it should. To the contrary, the husband’s counsel asserted in his oral submissions that the parties relevant contributions should be found to be equal upon assessment of all the evidence and that the adjustment in favour of the wife, having regard to the matters to be considered pursuant to s 79(4)(e) and s 75(2) of the Family Law Act, should be an additional 10 to 15%.

1. Although in the written submissions for the husband that were filed after the trial was finished there is reference to the issue of the condition of the house and evidence about that, no submission was made as to what relevance that had to the determination of just and equitable property adjustment orders. Complaint cannot now be made that it was not taken into account.

1. As to listed ground 3, upon checking again, it is acknowledged that the rental appraisal of Mr HH referred to was indeed annexed to the husband’s trial affidavit and in evidence (not having been objected to by the wife despite it clearly being direct hearsay) contrary to what I said in my reasons for judgment. However, the husband’s position in respect of the wife’s occupation of the parties’ home in the period after separation was clearly considered by me in the context of post-separation contributions of the parties and taken into account. The discretionary process of considering and weighing the parties’ respective contributions is not a mathematical exercise, contrary to what the husband would have had the Court do. This ground, I am satisfied, has little prospect of success.

1. As to listed ground 4, I do not even understand this to be remotely like a proper ground of appeal. I discern this to be, like other listed grounds, an assertion that my findings of fact, based on assessment of the witnesses’ credit, were flawed. The husband did not persuade me that he has good prospects of success, if this is the ground.

1. As to listed ground 5, I am satisfied there are no prospects of success at all. None of these affidavits, if they do exist, were read and relied upon by counsel for the husband at the start of the trial.

1. As to listed grounds 6, 7, 8, 9, 10, 11, and 12, neither the evidence put before the Court on the application by the husband nor his submissions failed to persuade me that he has any arguable case on appeal in respect of any of these grounds. Collectively, they again seem to focus argument on my assessment of the credibility of the parties and their witnesses and my findings of fact. The husband said little more on the hearing of this stay application than what amounted simply to a rearguing of his case presented at trial. That could never be enough to persuade of prospects of success before the Full Court. 

1. As to listed ground 13, as I pointed out to the husband during the hearing of his stay application, the alleged negligence of the barrister who appeared for him at the trial will not, in my view, found a successful appeal. His concerns about that must be taken up in other arenas than the Full Court.

1. Finally, as to the second listed ground “13”, one cannot, without more, have any cause to consider that likely to be a fruitful ground of appeal for the husband.

1. An appeal in the Brisbane Registry is unlikely to be heard for anywhere between six to twelve months. To hold the wife out of the fruits of her judgment for that time where I assess the husband’s prospects of success on the appeal not to be strong at all, would be harsh for her. In these circumstances, given that I do not even consider that refusal of the stay necessarily will render the appeal nugatory, I will not grant the stay.

1. The husband’s application will be dismissed. The wife’s counsel asked for an order pursuant to s 106A of the Family Law Act sought by the wife, for a Registrar to sign authority for the money to be paid out according to my earlier orders in the event the husband refuses to do so.

1. The husband informed the Court that was not necessary as he would sign the authority if his stay application was unsuccessful.

1. I do not consider it necessary to make the order as such an order was already made by me as paragraph 6 on 11 April 2013.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 June 2013.

Associate: 

Date:  13 June 2013