Rankin and Rankin (No 2) - [2016] FamCA 512

FAMILY COURT OF AUSTRALIA

RANKIN & RANKIN (NO. 2)

[2016] FamCA 512

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application by the husband for stay of final property orders pending the determination of his appeal – whether the refusal of a stay will render nugatory the husband’s appeal if successful – whether the husband has an arguable case on appeal – where the wife has the primary care of the three children of the marriage and is unemployed – hardship to the wife considered – interim orders made staying parts of the final orders in relation to which the husband has an arguable case

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Jackson & Balen (2009) FamCAFC 131
Metwally v University of Wollongong (1985) 60 ALR 68
Stephens & Stephens (Stay Application) [2010] FamCAFC 20; (2010) FLC 93-429
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

APPLICANT:

Mr Rankin

RESPONDENT:

Ms Rankin

FILE NUMBER:

DGC

2859

2013

DATE DELIVERED:

27 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

18 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tulloch

SOLICITOR FOR THE APPLICANT:

LY Tonge & Co

COUNSEL FOR THE RESPONDENT:

Mr Hutchings

SOLICITOR FOR THE RESPONDENT:

Goldhirsch & Shnider

Orders

That pending determination of the husband’s Notice of Appeal filed 17 May 2016 the operation of paragraph 1 of the Orders dated 29 February 2016 be stayed so as to provide as follows:-
(a)As to paragraph 1(a) of the Orders (“the Orders”) the wife be paid the sum of $110,500 and the balance then remaining, being the sum of $59,500 be held upon trust by the wife’s lawyers pending determination of the husband’s appeal;
(b)As to paragraph 1(b) of the Orders the balance then remaining to be divided as to:-
(i)Pay to the wife 65 per cent;
(ii)Pay to the husband 30 per cent, less:-
A.The sum of $36,872.96 in unpaid school fees which sum is to be paid to M Inc. and N Inc.;
B.The sum of $9,771.96 which sum is to be paid to the wife in respect of arrears of child support; and
C.The sum of $65,000 to be held upon trust by the wife’s lawyers pending determination of the husband’s appeal.
(iii)The balance then remaining, being five per cent be held on trust by the wife’s lawyers pending determination of the husband’s appeal.
That the stay of the operation of the Orders pursuant to order 1 hereof is conditional upon the husband doing all such acts and things as may be required to prosecute his Notice of Appeal filed 17 May 2016 expeditiously.
That in the event the husband does not fulfil the condition of the stay set out in paragraph 2 hereof the wife has liberty on 14 days’ notice to re-list the matter before Johns J for consideration of discharge of paragraph 1 hereof.
That the husband’s Application in a Case…

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.

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Details

Case: [2016] FamCA 512
Decision Date: 27 May 2016

CaseChat Overview and Summary

This matter came before Johns J concerning an application by the husband for a stay of certain orders made on 29 February 2016, pending the determination of his Notice of Appeal filed on 17 May 2016. The dispute involved the division of property and the payment of various sums, including school fees and child support arrears.

The primary legal issue before the court was whether to grant a stay of the operation of the earlier orders and, if so, on what terms. This involved considering the husband's financial position and the wife's entitlement to funds pending the appeal. The court also had to determine the disposition of the remaining funds and the conditions attached to any stay granted.

Johns J ordered a stay of the operation of the 29 February 2016 orders, with specific modifications to the payment schedule. The wife was to receive $110,500, with the remaining $59,500 held in trust by her lawyers. Further distributions were ordered, with 65% of the remaining balance to the wife and 30% to the husband, after deductions for school fees and child support arrears. The husband's appeal was to be prosecuted expeditiously, and failure to comply with this condition would allow the wife to seek the discharge of the stay. The court also authorised a Registrar to sign documents if a party failed to do so and addressed the issue of costs by requiring written submissions.

Orders

Orders of the court

That pending determination of the husband’s Notice of Appeal filed 17 May 2016 the operation of paragraph 1 of the Orders dated 29 February 2016 be stayed so as to provide as follows:-

(a) As to paragraph 1(a) of the Orders (“the Orders”) the wife be paid the sum of $110,500 and the balance then remaining, being the sum of $59,500 be held upon trust by the wife’s lawyers pending determination of the husband’s appeal;

(b) As to paragraph 1(b) of the Orders the balance then remaining to be divided as to:-

(i) Pay to the wife 65 per cent;

(ii) Pay to the husband 30 per cent, less:-

A. The sum of $36,872.96 in unpaid school fees which sum is to be paid to M Inc. and N Inc.;

B. The sum of $9,771.96 which sum is to be paid to the wife in respect of arrears of child support; and

C. The sum of $65,000 to be held upon trust by the wife’s lawyers pending determination of the husband’s appeal.

(iii) The balance then remaining, being five per cent be held on trust by the wife’s lawyers pending determination of the husband’s appeal.

That the stay of the operation of the Orders pursuant to order 1 hereof is conditional upon the husband doing all such acts and things as may be required to prosecute his Notice of Appeal filed 17 May 2016 expeditiously.

That in the event the husband does not fulfil the condition of the stay set out in paragraph 2 hereof the wife has liberty on 14 days’ notice to re-list the matter before Johns J for consideration of discharge of paragraph 1 hereof.

That the husband’s Application in a Case filed 3 May 2016 and the wife’s Response to an Application in a Case filed 17 May 2016 be otherwise dismissed.

That any party seeking to make application for costs file written submissions in support of such application within 14 days of these orders and any response to such application to be filed within 7 days thereafter, such application to be determined upon consideration of written submissions in Chambers.

That pursuant to s 106A of the Family Law Act 1975 (Cth) in the event that either party fails to sign any document required to give effect to these orders and the orders of 29 February 2016, a Registrar of the Court is authorised to sign such documents in the name of that party.

AND THE COURT NOTES that it is agreed between the parties that in order to give effect to order 1(b)(ii)B of these orders the payment referred to therein will be made to the Child Support Agency.

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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