McIntosh and Anderson (No. 2)
[2013] FamCA 513
FAMILY COURT OF AUSTRALIA
| MCINTOSH & ANDERSON (NO. 2) | [2013] FamCA 513 |
| FAMILY LAW – ORDERS – Stay – Where the wife seeks property orders pursuant to the Family Law Act 1975 (Cth) (“the Act”) – where the husband opposes the wife’s application on the basis that the parties were divorced in Country B and the wife has not sought leave to institute proceedings out of time pursuant to s 44(3) of the Act – where the orders the subject of the stay application stem from a determination that the Country B divorce did not constitute a “divorce order” for the purposes of the Act and, in particular, s 44(3) – where the husband has filed a Notice of Appeal in respect of that decision – where the husband seeks a stay of the orders providing for the progression of the wife’s s 79 application – whether stay should be granted – where the husband has an arguable case on the appeal – where the appeal would be rendered nugatory if stay not granted – further progression of the wife’s s 79 claim stayed pending the outcome of the husband’s appeal. |
| Family Law Act 1975 (Cth) |
| Jackson & Baylen (2009) FamCA FC 131 Savage and Hodgson (1982) FLC 91-281 Taffa & Taffa (Summary Dismissal) [2012] FamCA 181 |
| APPLICANT: | Mr Anderson |
| RESPONDENT: | Ms McIntosh |
| FILE NUMBER: | ROC | 367 | of | 2012 |
| DATE DELIVERED: | 1 July 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 1 July 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carew |
| SOLICITOR FOR THE APPLICANT: | South & Geldard |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Duffield & Associates Solicitors |
Orders
That any further step in the progress of the Initiating Application filed 10 July 2012 be stayed pending the outcome of the appeal filed 11 April 2013.
That the costs of and incidental to the Application in a Case filed 13 June 2013 be adjourned to the trial if the Appeal is unsuccessful, or to a date to be fixed if the Appeal is successful.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McIntosh & Anderson (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 BRISBANE |
FILE NUMBER: ROC 367 of 2012
| Mr Anderson |
Applicant
And
| Ms McIntosh |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 20 March 2013, I made orders and delivered reasons in respect of an application for settlement of property relating to a divorce obtained in Country B according to the law of Country B. The essential dispute before me on that occasion was whether the wife needed leave, pursuant to section 44(3) of the Family Law Act 1975 (Cth) (“the Act”), to bring the application. That, in turn, involved a consideration of the terms “divorce” and “divorce order” within the meaning of the Act.
As I said in the reasons, the contention by the wife in that application was, or could be seen to be, consistent with first instance authorities decided relatively early in the life of the Act and the decision of the Full Court in Savage and Hodgson (1982) FLC 91-281. That decision of the Full Court was decided prior to significant amendments to the Act in 1983. The wife argued that a proper analysis of those decisions did not support the proposition that leave was required.
By way of contrast, the husband’s contention was supported by a more recent decision of Le Poer Trench J in Taffa & Taffa (Summary Dismissal) [2012] FamCA 181, decided last year. Also recorded in the reasons for judgment, the husband’s position is consistent with statements made in two well-known Family Law texts.
A Notice of Appeal was filed by the husband on 11 April 2013. Directions for the hearing of the appeal have been made and although a date for the hearing of the appeal has not been set, an indication has been given by the Registrar that it may make the Brisbane list in September of this year. I am aware that if the matter is not heard in September, the sitting after that in Brisbane is in November and I consider it highly likely it would be heard then.
In that respect, Ms Carew points out that the Registrar has adjourned the hearing in respect of further trial directions, consequent upon the orders made by me, until November, presumably in the expectation that the appeal would be heard in September.
There is no suggestion that the appeal is brought otherwise than bona fides. There is no suggestion that the appeal is brought for the purposes of delay or to otherwise impede the progress to trial that would occur in the event that my decision is correct.
The principles in relation to stay have recently been enunciated in the decision of the Full Court in Jackson & Balen [2009] FamCAFC 131. There the Full Court (at [28]) referred to a number of well-known earlier decisions and set out the principles applicable to an application for stay in these terms:
a)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;
b)a person who has obtained a judgment is entitled to the benefit of that judgment;
c)a person who has obtained a judgment is entitled to presume the judgment is correct;
d)the mere filing of an appeal is insufficient to grant a stay;
e)the application must be bona fides;
f)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;
g)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;
h)some preliminary assessment of the strength of the proposed appeal - whether the applicant has an arguable case.
In this case, the proposed appeal derives its potential strength from the existing state of the law to which I have made reference. There is no doubt that the appellant has an arguable case, in the sense referred to in Jackson & Balen.
As Mr Alexander effectively properly concedes, the appeal would be rendered nugatory if a stay was not granted. In this particular case, the question the subject of the appeal effectively determines the application for settlement of property and the directions which I contemplated would be made consequent upon my decision.
If the appeal is successful then, absent leave, the wife has no entitlement to bring the application for settlement of property. In those circumstances, she argues, with some considerable force as it seems to me, that she should not be put to the time, trouble and expense of complying with directions that would see the matter prepared for trial. In circumstances where the appeal was successful, no trial would take place.
In all of the circumstances just outlined, it seems to me entirely appropriate that a stay be granted and I so order.
An application is made by the husband for the costs of the application. That application receives force from the fact that all of the matters just outlined are obvious and should have seen the issues resolved without recourse to an application and consequent hearing. On balance, I think I should reserve the costs. On an application for stay, the trial judgment is presumed correct and an applicant for stay seeks an indulgence contrary to that assumption that might or might not ultimately be borne out on appeal. It seems to me that the “conduct” of the parties and success within the meaning of section 117(2A), can best be judged subsequent to the hearing of the appeal.
I will order accordingly.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 1 July 2013.
Associate:
Date: 9 July 2013
0
2
0