Masur and Soloviev

[2020] FamCA 566

FAMILY COURT OF AUSTRALIA

MASUR & SOLOVIEV [2020] FamCA 566

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Proceedings – Where orders were made for the husband to vacate a property and remove personal effects from another property – Where the husband has filed an appeal – Where the husband seeks a stay of the orders pending the determination of his appeal – Where the interim orders made will have no impact on the determination of final orders sought – Where a proper basis for the stay has not been established – Application dismissed. 

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

APPLICANT: Mr Masur

RESPONDENT: Ms Soloviev

FILE NUMBER: ADC 1272 of 2018

DATE DELIVERED: 16 July 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 17 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

Orders

1. That the husband’s Application for Stay filed 4 June 2020 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Soloviev & Masur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1272 of 2018

Mr Masur

Applicant

And

Ms Soloviev

Respondent

REASONS FOR JUDGMENT

Introduction   

1. The substantive proceedings before the Court are as a result of the inability of the parties to reach agreement as to settlement of property.

2. The wife commenced the proceedings on 25 June 2019 seeking orders for the settlement of property such that she pay the husband a sum determined by the Court.  By reference to Annexure “B” to her Further Amended Initiating Application filed 7 April 2020, the wife sought interim orders that the husband remove his personal belongings and effects situate at her residence at Suburb F and vacate a property situate at C Town.

3. By his Response filed 27 May 2020  the husband seeks orders for settlement of property and spousal maintenance, with an acknowledgement that he does not seek to retain the C Town property by way of final orders.

4. The parties were married in 2015.  There remains considerable dispute as to the date of separation.  The wife considers that the parties separated on the day of their marriage, whereas the husband maintains that the parties remained in a marital relationship until September 2018.

5. Whilst even at its highest the marriage is of short duration. The principal contention between the parties is as to the extent of the financial contribution made by the husband.

6. It is not controversial that the wife owned both the C Town and Suburb F properties prior to the commencement of her relationship with the husband.

7. Following submissions on 18 May 2020, judgment was delivered and orders were made on 22 May 2020 which required the husband to remove his personal effects and belongings from the wife’s residence at Suburb F and within 28 days of the order to vacate the C Town property.[1]

   [1] See Soloviev & Masur [2020] FamCA 398

8. The wife was ordered to pay the husband $25,000 in the following manner:-

   a)$5,000 within 7 days of the order;

   b)$10,000 forthwith upon the husband advising the wife of the date upon which he intends to vacate the premises; and

   c)a further sum of $10,000 upon the husband vacating the C Town property.

9. It is common ground that the first payment of $5,000 was made and accepted by the husband.

Notice of appeal

1. By Notice of Appeal filed 29 May 2020, the husband seeks to set aside orders 1 to 5 inclusive and 7 – 8 inclusive of orders made on 22 May 2020. He also seeks that order 6 of the orders be amended. 

2. The grounds of appeal have about them the flavour of submissions, although grounds 3 and 4 assert a lack of power to make the orders by reason of a breach of s 109 of the Australian Constitution.

3. Ground 8 asserts that the husband did not have a fair hearing because of “excessive judicial intervention on the “disruption ground”.[2]

   [2] Notice of Appeal filed 29 May 2020, Annexure A at 6 [8].

4. The substantive proceedings have been listed for a primary hearing on 26 October 2020.

Legal principles

1. In Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 the following is set out:-

   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.

Basis for the stay

1. By Application in a Case filed 4 June 2020, the husband seeks that as an alternative to the orders made 22 May 2020 being set aside and order 6 being the subject of amendment, that orders 1 to 8 should be stayed until the determination of the aforementioned appeal.

2. The husband’s application for stay is supported by an affidavit of 3 June 2020. 

3. The husband contends that in addition to the matters raised in his grounds of appeal, the Court has acted unfairly by an order that requires him to relocate in circumstances where he is preparing for the substantive proceedings.

4. At the time that the orders of 22 May 2020 were made, whilst it was contemplated that the Court would explore the possibility of an expedited hearing, no trial date had been set and it was only upon further submissions that the proceedings between the parties would be appropriately prepared that the Court was prepared to list the matter for hearing.

5. At [11] of his affidavit of 3 June 2020, the husband summarises the basis upon which he considers the Court should set aside the orders namely, because the Court:-

   a)failed to give proper consideration that [the husband] was the victim of family violence;

   b)is punishing [the husband] as the victim of family violence by evicting [him] from the C Town property;

   c)excessively disrupted [the husband’s] presentation in the hearing of 18^th May 2020;

   d)failed to make any provision for [the husband] under s 75(2) Family Law Act 1975 (FLA);

   e)failed to make full consideration of [the husband’s] health issues as per s 75(2) FLA;

   f)breached s 109 of the Australian Constitution by overriding powers that are under state laws;

   g)breached [the husband’s] human rights by making s 114 FLA orders without proper supportable substantiation;

   h)made an improper ruling about [the husband’s] access to all family property without s 79 FLA final ruling;

   i)made an unworkable Order 8 in urgent/emergency situation which could result in asset loss.

   (Original emphasis)

6. Orders 3, 4 and 5 relate to the removal by the husband of his personal effects from the wife’s Suburb F property.  Whilst the husband appeals those orders, the basis upon which the husband seeks a stay in respect of same is at [77] of his affidavit filed 3 June 2020:-

   The Court does not have the power to order that I remove my personal belongs from the family property that is not in accordance with the Unclaimed Goods Act 1987 South Australia.  Any attempt by [the wife] to dispose of or sell my personal property not in accordance with this Act commits the criminal act of theft.

7. The husband also considers that he should be permitted to remain in the C Town property because he has a duty of care for the animals on the property.

Conclusion

1. The wife is entitled to the benefit of the interim judgment unless circumstances exist which raise the risk of the appeal being rendered nugatory.

2. The husband does not wish to retain the C Town property.  He remains on the property in opposition to the wife’s application that he vacate.

3. His occupation of the C Town property is a matter for his convenience which was considered by the wife to be able to be ameliorated by the payment of $20,000 to enable the husband to relocate.

4. The Court determined that the amount should be increased by $5,000 which would also provide the husband with the ability to remove his personal effects from the Suburb F property.

5. I do not consider that the husband has established a proper basis for the stay.  It is not intended by him that he seeks to retain the C Town property, nor does he challenge that the property was held by the wife prior to the commencement of the proceedings.  The relationship was of short duration and whilst there is still to be a determination as to the extent to which the husband has made a financial contribution to the property of the parties but in particular the wife, the interim orders made will have no impact on the determination of the final orders sought by each of the parties.

6. The husband seeks to remain in occupation of the C Town property for his convenience.

7. I do not consider that the husband has established any proper basis for the stay as sought.  I accept that he is not required to demonstrate special or exceptional circumstances but I do not consider that the convenience of accommodation in circumstances where he is to receive substantial financial assistance represents a proper basis for a stay.

8. In the absence of any information to the contrary, it is highly likely that the determination of the substantive proceedings will occur prior to the hearing of the husband’s appeal.

9. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 16 July 2020.

Associate: 

Date:  16 July 2020