Ralston and Bakker (No 2)

[2013] FamCA 1027

FAMILY COURT OF AUSTRALIA

RALSTON & BAKKER (NO 2) [2013] FamCA 1027

FAMILY LAW – stay pending the hearing of Amended Notice of Appeal

APPLICANT: Mr Ralston

RESPONDENT: Ms Bakker

FILE NUMBER: SYC 7826 of 2011

DATE DELIVERED: 12 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 12 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Archer Legal

Orders

IT IS ORDERED
THE COURT NOTES

1. That orders 6(f) and 11 of the orders dated 17 October 2013 be stayed pending the hearing of the mother’s Amended Notice of Appeal.
2. That the orders 20, 22 and 24 of the orders dated 17 October 2013 be stayed pending the hearing of the mother’s Amended Notice of Appeal.

3. That the mother has filed an Application for Expedition and the Court notes the undertaking of the mother that she will diligently prosecute both the Application for Expedition and the Appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakker & Ralston 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 SYDNEY

FILE NUMBER: SYC 7826 of 2011

Mr Ralston

Applicant

And

Ms Bakker

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court arise out of a relationship between Ms Bakker, to whom I shall refer as the applicant and Mr Ralston, to whom I shall refer as the respondent.

2. Defended proceedings in relation to the parenting of their child, T, born in 2010, and their property, were conducted before Fowler J, as he then was, in March and September 2013 and judgment was delivered on 17 October 2013.

3. From the judgment of his Honour, the applicant before me has appealed. The applicant has not appealed every order which was made by his Honour. The application before me today is an application for a stay of certain of the orders that his Honour made. 

4. The principles which govern the application for a stay are well known and were set out by the Full Court in Tranh & Long (No.2)(2008) FamCA at 194. For the benefit of the parties I will summarise the principles.

5. Firstly, the onus to establish a proper basis for a stay is on the applicant.  However, it is not necessary for the applicant to demonstrate special or exceptional circumstances. 

6. A person who has obtained a judgment is entitled to the benefit of the judgment. 

7. The person who has obtained a judgment is entitled to presume the judgment is correct. 

8. The mere filing of an appeal is insufficient to grant a stay. 

9. The bona fides of the applicant are relevant. 

10. A stay may be granted on terms that are fair to all parties and this may involve a court weighing the balance of convenience and the competing rights of the parties, a weighing of the risk that the 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.

11. Some preliminary assessment must be made of the strength of the proposed appeal, whether the appellant has an arguable case, the desirability of limiting the frequency of any change in the 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 a stay for a short period of time and the best interests of the child, the subject of the proceedings.

12. I deal, firstly, with the property aspect of the appeal of the judgment of his Honour. The judgment requires the payment by the applicant to the respondent of a substantial sum of money in default of which properties are to be sold. The applicant seeks to retain at least one of the subject properties. It is clear from the submissions and from a reading of the judgment that in the event that the orders are not stayed and are put into effect, and the applicant is not able to raise the funds by the due date, the appeal of the applicant will be rendered nugatory. 

13. The applicant has attempted to put into place an arrangement which would allow her to make a part-payment and in order to do that, she asks the Court to make an order that a jointly owned property be transferred to her so that she can borrow against it. It was conceded on behalf of the applicant that the Court would not order the respondent to transfer the property against the respondent’s wishes.

14. It was also conceded on the part of the applicant that my knowledge of the matters which are relevant to such a decision is such that I could not assess whether such a transfer would be just and equitable. 

15. The respondent opposed the order for a stay but also opposed the order to part-payment. However, I take into account the fact that the applicant has at least made a proposal that would allow a part-payment to the respondent. 

16. The Orders in relation to property settlement will be stayed pending appeal.

17. Turning, then, to the orders in relation to the parenting. The applicant seeks to stay only part of the parenting orders. The orders which she seeks to stay are orders 6(f) and order 11. Order 6(f) provides for the child to spend a period of seven consecutive nights with the father. Order 11 requires that the child be enrolled in a particular preschool for four days each week. The mother does not seek to appeal against orders which were made by his Honour at order 5 of the judgment, subsections (a), (b) and (c) which provide for the time the child spends with his father to be gradually increased on six month increments.

18. On my calculation, by October 2014 the child will be spending overnight time with his father from Friday afternoon until Monday morning. The appeal, on any understanding of the onerous workload of the Full Court, will have been disposed of within that time.  

19. The mother relies upon the expert evidence accepted in the judgment by his Honour in seeking to set aside, by way of appeal, Order 6(f) which would provide for the child, within the next month, to spend seven consecutive nights with the father. In my view, having regard particularly to paragraphs 109 and 110 of the judgment, there is a reasonably arguable appeal in relation to order 6(f) and that order should be stayed. 

20. In relation to order 11, the mother has at least an arguable case and order 11 will also be stayed.

21. The court notes that the mother has filed an application for expedition and the Court notes the undertaking of the mother that she will diligently prosecute both the application for expedition and the appeal.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 12 December 2013.

Associate: 

Date:  12 December 2013