Meredith and Allen (No. 2) - [2014] FamCA 629

FAMILY COURT OF AUSTRALIA

MEREDITH & ALLEN (NO. 2)

[2014] FamCA 629

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings sought in respect of property orders and adult child maintenance order –– where the husband has not complied with final orders – where the wife is entitled to the benefit of the judgment and to presume the judgment is correct – where the husband has little prospect of success in respect of the grounds of appeal as developed to date but it is accepted he may amend grounds – appeal may be rendered nugatory if stay not granted – order made for stay of property orders pending appeal on conditions – condition that the husband at all times prosecute his appeal expeditiously – condition that the husband pay regular mortgage payments and outgoings on the matrimonial home – condition that the husband pay all arrears and comply with adult child maintenance order – application for a stay of proceedings in respect of adult child maintenance order dismissed

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131

APPLICANT:

Mr Meredith

RESPONDENT:

Ms Allen

FILE NUMBER:

SYC

6886

2008

DATE DELIVERED:

7 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

4 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

Pending further order and in so far as it has not already been implemented, a stay is granted of the property settlement orders (orders 1 – 15) made on 6 June 2014 upon the following conditions:
1.1.The husband at all times prosecutes his appeal to the Full Court expeditiously;
1.2.The husband continues to pay all regular mortgage repayments and all regular payments on any loans secured against the property situated at and known as E Street, Suburb S (“the Suburb S property”), together with arrears and that the husband pays all rates, taxes and other outgoings associated with the Suburb S property and any arrears in respect of those liabilities;
1.3.On a monthly basis the husband provide to the wife written evidence that he has complied with order 1.2;
1.4.The husband pays all arrears in relation to adult child maintenance and regularly complies with his obligations under that order.
In the event the husband does not fulfil the conditions of the stay set out in order 1, the wife has liberty on 14 days notice to relist the matter before me for consideration of a discharge of order 1.
I note the husband’s appeal is listed for a procedural event on 19 August 2014. The Registrar is requested to consider expedition of the appeal.
The application for the stay of the order for adult child maintenance (order 18 made 6 June 2014) is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meredith & Allen (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Meredith and Allen (No. 2)

Details

AGLC: Meredith and Allen (No. 2) [2014] FamCA 629
Case: [2014] FamCA 629
Decision Date: 7 August 2014

CaseChat Overview and Summary

In *Meredith and Allen (No. 2)*, Watts J considered an application by the husband for a stay of property settlement orders made on 6 June 2014, pending his appeal to the Full Court. The wife sought to enforce these orders. The husband also sought a stay of an order for adult child maintenance.

The primary legal issue before the court was whether to grant a stay of the property settlement orders. A secondary issue was whether to grant a stay of the adult child maintenance order.

Watts J granted a stay of the property settlement orders, subject to several conditions designed to protect the wife's interests. These conditions included the husband prosecuting his appeal expeditiously, continuing to meet all mortgage repayments and other outgoings associated with the Suburb S property, providing written evidence of compliance monthly, and paying all arrears and ongoing obligations in relation to adult child maintenance. The court noted that the Registrar was requested to consider expedition of the husband's appeal, which was listed for a procedural event on 19 August 2014. The application for a stay of the adult child maintenance order was dismissed.

Orders

Orders of the court

Pending further order and in so far as it has not already been implemented, a stay is granted of the property settlement orders (orders 1 – 15) made on 6 June 2014 upon the following conditions:

1.1. The husband at all times prosecutes his appeal to the Full Court expeditiously;

1.2. The husband continues to pay all regular mortgage repayments and all regular payments on any loans secured against the property situated at and known as E Street, Suburb S (“the Suburb S property”), together with arrears and that the husband pays all rates, taxes and other outgoings associated with the Suburb S property and any arrears in respect of those liabilities;

1.3. On a monthly basis the husband provide to the wife written evidence that he has complied with order 1.2;

1.4. The husband pays all arrears in relation to adult child maintenance and regularly complies with his obligations under that order.

In the event the husband does not fulfil the conditions of the stay set out in order 1, the wife has liberty on 14 days notice to relist the matter before me for consideration of a discharge of order 1.

I note the husband’s appeal is listed for a procedural event on 19 August 2014. The Registrar is requested to consider expedition of the appeal.

The application for the stay of the order for adult child maintenance (order 18 made 6 June 2014) is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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