Rankin and Rankin (No 2)
[2016] FamCA 512
•27 May 2016
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 | of | 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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rankin & Rankin (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 MELBOURNE |
FILE NUMBER: DGC 2859 of 2013
| Mr Rankin |
Applicant
And
| Ms Rankin |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed 3 May 2016 Mr Rankin, the husband in the proceedings, seeks a stay of final orders pronounced by me on 29 February 2016 (“the final orders”) following a contested hearing. The husband relied upon his affidavit filed 16 May 2016 and the affidavit of his lawyer filed 3 May 2016 in support of that application.
The final orders sought to be stayed are with respect to property, spousal maintenance and child support. The husband filed a Notice of Appeal on 17 May 2016 (“the Notice of Appeal”) in relation to those orders.
The wife opposes the stay application and relies upon her Response to an Application in a Case filed 17 May 2016 and her affidavit filed the same day.
The husband seeks to stay the operation of paragraphs 1, 2(d), 14, 15 and 16 of the final orders. Those orders provide as follows:-
1.That the husband and the wife forthwith do all acts and things and sign all necessary documents to authorise the release of the proceeds of sale of the real properties at [B Street, Suburb C] in the State of Victoria; L Street, G Town in the State of Western Australia; and [K Street, H Town] in the State of Western Australia held on trust by the wife’s solicitors to be applied as follows:-
(a)Firstly, the sum of $170,000 to the wife’s solicitors in payment of her legal costs and disbursements;
(b)Secondly, the balance then remaining be divided as follows:-
(i) To the wife 70 per cent;
(ii) To the husband 30 per cent less:-
A.The sum of $36,872.96 in unpaid school fees to be paid to [M Inc.] and [N Inc.];
B.The sum of $9,771.96 to the wife in respect of arrears of child support.
C.The sum of $65,000 by way of lump sum spousal maintenance to the wife.
2.That the wife retain:-
…
(d)The contents of the former matrimonial home.
…
14.That pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) there be a departure from the administrative assessment of child support payable by the husband to the wife for the children [D] born … 2003, [E] born … 2004 and [F] born … 2009 and for the purposes of calculating the child support obligation of the husband the annual child support income for him shall be fixed as follows:
(a)For the period commencing 1 January 2016 to 31 December 2016 the sum of $243,000;
(b)For the period 1 January 2017 to 31 December 2017 the sum of $243,000 plus CPI.
15.That pursuant to s 124 of the Child Support (Assessment) Act1989 (Cth), the husband pay all tuition fees, extracurricular expenses, uniforms and equipment consequential to attendance by the children to the schools attended by them as at the date of hearing.
16.That all extant applications be otherwise dismissed.
At the commencement of the hearing of the stay application, the husband tendered a minute of the orders sought by him (Exhibit H1). The husband seeks orders that:-
1.Pending the determination of the husband’s Appeal filed 17 May 2016 the operation of paragraph 1 of the orders made by the Honourable Justice Johns on 29 February 2016 be stayed to the extent necessary to give effect to the following division of the proceeds of sale of the real properties at [B Street, Suburb C] in the State of Victoria, [L Street, G Town] in the State of Western Australia and [K Street, H Town] in the State of Western Australia (“the proceeds of sale”) (the said proceeds of sale being estimated to be in the sum of $802.546.41);
(a)Firstly, to the wife the sum of $484,782.20;
(b)Secondly, to the husband the sum of $78,119.00;
(c)Thirdly, to the [M Inc.] and [N Inc.] the sum of $36,872.96; and
(d)Fourthly, the balance then remaining to be held on trust on behalf of both the parties in an interesting (sic) bearing account by the husband’s solicitors L Y Tonge & Co Lawyers of …, Melbourne.
2.The parties each forthwith do all such acts and things and sign all such documents as may be necessary to give effect to paragraph 1 of these orders.
3.The wife forthwith cause her solicitors to provide to the husband’s solicitors copies of all bank statements for the proceeds of sale from the day upon which those funds were received by them until this day.
4.Pending the determination of the husband’s Appeal filed 17 May 2016 the operation of paragraphs 2(d), 14 and 15 of the orders made by the Honourable Justice Johns on 29 February 2016 be stayed.
5.The wife pay the husband’s costs of this application.
6.Such further and other orders as this Honourable Court deems appropriate.
Legal Principles
The principles in relation to the stay of a judgment pending appeal are well established. An application for a stay of judgment is a discretionary application to be determined on its merits. The principles relevant to the determination of a stay application were summarised by the Full Court in Jackson & Balen (2009) FamCAFC 131 at paragraph 28 and 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 application must be bona fides;
·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 Husband’s Submissions
It was conceded by counsel for the husband, quite properly, that the onus to establish a basis for the stay is upon the husband. Further, counsel for the husband conceded that a person who has obtained a judgment is entitled to the benefit of that judgment and is entitled to presume that the judgment is correct.
The husband acknowledged that the filing of the Appeal of itself was not a basis for the grant of a stay. It was submitted on his behalf that he was bona fide in filing his appeal. There was no challenge to that submission by the wife.
The focus of the submissions on behalf of the husband centred on:
·the assertion that the husband has an arguable case on appeal; and
·that the appeal may be rendered nugatory if the stay is not granted.
Notwithstanding the orders sought in the Notice of Appeal, the Grounds of Appeal relied upon by the husband seek to challenge other parts of the orders. The issues identified in Part E of the Grounds of Appeal are summarised as follows:-
·Ground 1: that there has been an error in the application of the provisions of the Family Law Act 1975 (Cth) (“the Act”) and in particular the proportions of the pool payable to the parties. The order that the sum of $170,000 be paid to the wife’s lawyers and the payment of $65,0000 by way of lump sum maintenance and that the wife be permitted to retain the contents of the former matrimonial home are the focus of complaint in Ground 1.
·Ground 2: that there is an error in the order that the unpaid school fees in the sum of $36,872.96 be paid to the relevant schools and that the sum of $9,771.96 being arrears of child support be paid to the wife.
·Ground 3: that the Court did not have jurisdiction to make orders pursuant to the Child Support Assessment Act1989 (Cth) (“the Assessment Act”);
·Ground 4: in the alternative, that the Court erred in the exercise of the discretion to find there was a ground for departure pursuant to the Assessment Act.
·Ground 5: that the discretion miscarried in determining the issue of payment of expenses for the children pursuant to s 124 of the Assessment Act.
·Ground 6: that the Court erred in the failure to make any order in relation to the wife’s application to relocate with the children to Country P.
·Grounds 7 and 8: that the Court erred in making findings of fact at paragraphs 121 and 122 of the Reasons for Judgment (“the Judgment”).
·Ground 9: that the husband was denied procedural fairness due to a refusal to accept the tender of taxation returns.
·Ground 10: that the husband was denied procedural fairness due to a refusal to permit his counsel to re-examine the husband in relation to his income and capacity to pay child support.
·Ground 11: that the husband was denied procedural fairness in permitting the wife to adduce evidence with respect to financial matters.
·Ground 12: that the husband was denied procedural fairness in failing to take into account the evidence of his doctor, Dr Z in an Affidavit filed 5 May 2015.
There is a tension between the stated Grounds of Appeal and the orders sought by the husband in the Notice of Appeal and before me on the stay hearing. Many of the matters complained of in the husband’s Grounds of Appeal appear to bear no relevance or relationship to the orders sought in the Notice of Appeal. For example, Ground 6 relates to the parenting proceedings which were before the Court at the commencement of the final hearing, but which were resolved by consent on the third day of the hearing. Accordingly, ground 6 appears to be misconceived. Similarly Grounds 9, 10 and 11 relate to the determination of the husband’s income and capacity to pay child support. Given concessions made by or on behalf of the husband as to his income and capacity to pay school fees during the hearing, those Grounds appear to have little merit.
Sensibly, the focus of the submissions made on behalf of the husband in support of his application for a stay of the orders was upon Grounds 1 to 5 inclusive of the Notice of Appeal.
Orders For Periodic Child Support (Order 14)
Paragraph 14 of the final orders provides that the husband pay periodic child support calculated on the basis that the husband’s income for the purposes of assessment of payment is $243,000 for the period commencing 1 January 2016 to 31 December 2016 and for the period 1 January 2017 to 31 December 2017 the sum of $243,000 plus CPI.
The Judgment deals with the child support matters at paragraphs 181 to 192 inclusive.
At paragraph 185 of the Judgment, it is noted that the husband at no time challenged the Court’s jurisdiction to entertain the wife’s application for a departure order. At the time of trial the husband was assessed for child support on the basis of his estimated income of $11,441 per annum. In his Trial Affidavit filed 1 May 2015 he deposed that his income was $2,600 gross per week. At paragraph 192 of the Judgment it is noted that the husband conceded during cross-examination that in fact he earned an income of approximately $5,000 per week. The orders for payment of periodic child support were based upon the concessions made by the husband and on his behalf during the trial.
That those concessions were made by the husband during the trial was conceded by counsel appearing on his behalf at the hearing of his stay application.
Hence, the matters now complained of with respect to the order for periodic child support were not matters raised on behalf of the husband during the course of the trial before me. Whilst it may be permissible to raise questions of law before the Full Court that were not otherwise raised at first instance, in accordance with the decisions of the High Court in cases such as Metwally v University of Wollongong (1985) 60 ALR 68 and Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 I am not satisfied that the matters now sought to be raised on behalf of the husband are matters that can properly be raised upon the hearing of the appeal. Accordingly, in my view it cannot be said that the husband has an arguable case and that part of the husband’s stay application must fail.
The husband sought to adduce fresh evidence as to his change in income and reduced hours of work since the orders were made. Those matters are not relevant to my consideration of the stay application.
Arrears Of School Fees (Order 1(b)(ii)(A))
The husband seeks a stay of the order requiring him to meet payment of arrears of school fees. There is no challenge to the quantum of school fees unpaid; it is $36,872.96.
Paragraph 1(b)(ii)(A) of the final orders provides that the husband meet payment of those school fees from his share of the property settlement. Although the husband at Part F of the Notice of Appeal in paragraph 2 seeks an order that the arrears of school fees be paid from his proportion of the property settlement, in the orders sought on the stay application (Exhibit H1) he seeks an order that the arrears be paid from the proceeds of sale held upon trust for the parties; the effect of an order in those terms is that the wife would share in the cost of those fees.
That the husband should be responsible for payment of the arrears of school fees was a matter conceded on his behalf by his counsel at the trial. This is recorded at paragraph 102 of the Judgment.
Ground 2 of the husband’s Grounds of Appeal simply asserts that the Court erred in making the orders. Given the husband’s concession, in my view there can be no error in the making of that order or arguable challenge to an order in those terms.
Accordingly, I am satisfied the husband’s application to stay the operation of that order must fail.
Payment Of School Fees (Order 15)
Paragraph 15 of the final orders provides that the husband meet the tuition fees, extra-curricular expenses, uniforms and equipment costs arising from the children’s attendance at the schools attended by them at the date of the hearing. It is an order made pursuant to s 124 of the Assessment Act.
Again during the course of the trial it was conceded by counsel appearing on behalf of the husband upon his client’s instructions that it was appropriate that there be such an order pursuant to s 124 of the Act. This is recorded at paragraph 184 of the Judgment.
With respect to the orders made pursuant to the Assessment Act it was submitted that were the stay of the orders refused in relation to the orders for payment of periodic child support and school fees, the appeal may be rendered nugatory as there is a risk that the husband will never recover monies paid by him pursuant to those orders in the event that his appeal succeeds.
That submission ignores the fact that the wife will be receiving payment of a lump sum by way of property settlement.
It also ignores the position of the wife; in the event that the appeal fails, she will be left with an entitlement to substantial arrears of child support, both in respect of school fees and periodic payments. Given the husband’s history with respect to non-payment of child support and school fees, which is evidenced by the arrears that had accrued at the time of the hearing, she is likely to be at a significant disadvantage were the orders stayed. Indeed, in balancing the position of each party and having regard to those matters, it is my view that there would be greater risk to the position of the wife than the husband if the orders were stayed.
Given that the husband’s responsibility for payment of school fees was conceded by his counsel during the hearing, for the reasons outlined earlier in this judgment, I am satisfied that the husband does not have an arguable case with respect to this aspect of the appeal. I will therefore dismiss that part of his application for stay of the orders.
Arrears Of Child Support (Order 1(b)(ii)(B))
At the commencement of the stay hearing, the husband also sought a stay of the order that he pay arrears of child support in the sum of $9,771.96. That amount was arrears of child support accrued as at 6 May 2014. During the trial there was no challenge to the amount of arrears payable by the husband.
Counsel for the husband confirmed during the hearing of the stay application that the husband has not sought to challenge those arrears since the hearing. Moreover, upon the matter being stood down to enable her to confirm her client’s instructions, counsel for the husband confirmed that the husband did not press his appeal in relation to that liability; she confirmed that the husband would cause the arrears to be paid to the Child Support Agency. Counsel for the wife agreed that this was an appropriate course. I will make a notation to the orders to that effect.
Property Orders
The husband’s Notice of Appeal seeks orders in the following terms:-
(1)That no amount be paid to the wife’s solicitors on account of her legal costs and disbursements.
(2)That the asset pool of the parties be divided as follows:-
i. to the wife 65 per cent to the husband 35 per cent with deductions for unpaid school fees of $36,872.96 and arrears of child support of $9,771.96.
(3)That there be no payment of a lump sum spousal maintenance to the wife.
(4)That an order be made that the wife pay the husband’s costs of and incidental to the discontinued relocation order sought by the wife.
Hence, on the face of the orders sought the focus of the husband’s appeal is against my determination that there be:-
·an adjustment of $170,000 to the wife on account of her legal costs and disbursements;
·an adjustment of the parties’ interests as to 70 per cent to the wife and 30 per cent to the husband, as opposed to the 65/35 split sought by the husband; and
·a payment to the wife from the husband’s entitlements of the sum of $65,000 by way of lump sum spousal maintenance.
Given the orders sought by the husband, the amounts in dispute are as follows:-
·his claim to 35 per cent of the payment of $170,000 to the wife, being the sum of $59,500;
·the payment of lump sum maintenance in the sum of $65,000; and
·the claim that he is entitled to 35 per cent as opposed to 30 per cent of the balance of the pool remaining, which based on a pool of approximately $630,000 is approximately $31,500.
Accordingly, the amount payable to the wife that is subject to challenge by the husband on appeal totals approximately $156,000.
The husband submitted that his appeal may be rendered nugatory if the stay is not granted.
The husband deposes at paragraph 14 of his Affidavit filed 16 May 2016 that he is fearful that the monies received by the wife pursuant to the final orders will be dissipated by her thereby depriving him of the opportunity of recovering monies in the event of a successful appeal.
In support of that submission, counsel for the husband noted that the wife is unemployed; in the event that she disposed of funds received, the husband would have little recourse to recover his entitlements. That submission highlights the hardship which will be visited upon the wife in the event that she is deprived of the fruits of the judgment pending the determination of the appeal. This is particularly so given the proceedings have been on foot for more than three years.
At paragraph 16 of his Affidavit filed 16 May 2016 the husband deposes that he is concerned that:-
… the Wife will spend her share of that money forthwith by paying for the following:
(i)Defending my appeal application to the Family Court;
(ii)The intervention proceedings which she commenced on 4 March 2016 in the [Suburb V] Magistrates' Court, in which she seeks an intervention order against me with the proposed protected persons being the wife and our three children. At the Mention on the 5 April 2016, the Police informed my lawyers that they will not be supporting my Wife’s intervention order proceedings and at this Mention, my Wife advised the Court that she intends to engage Goldhirsch & Shnider to act on her behalf;
(iii)All court proceedings will be funded by my Wife which I verily believe will require a substantial amount of money;
(iv)Paying for her son [Mr Q’s] overseas trips and modelling career given that he has no source of income himself;
(v)Providing gifts to her parents in [Country P] as she has done in the past.
It was submitted on behalf of the husband that he has an arguable case. The thrust of his challenge to the property orders is that when one stands back and assesses the effect of the orders made it cannot be concluded that they are just and equitable.
As to the orders for lump sum maintenance it was submitted that whilst it was open to the Court to make an order for periodic maintenance, having regard to the outcome of the proceedings, the order for lump-sum maintenance could not be justified.
The wife challenged the submission that the appeal would be rendered nugatory were the stay not granted. It was submitted on behalf of the wife that there was no evidence adduced by the husband to support the submission. It was submitted that the husband’s assertions were without foundation, that the costs of defending the appeal would be modest relative to the quantum in dispute and that there is no evidence before the Court which would give rise to the husband’s concerns articulated at sub-paragraphs (iv) and (v) above. I accept those submissions.
Further, it was submitted on behalf of the wife that when one has regard to the balance of convenience and the competing rights of the parties, those matters must favour the wife. It was submitted that the amount sought to be stayed could be the critical difference as to whether the wife is placed in a position to re-house herself, the evidence of the wife at paragraph 13 of her Affidavit filed 17 May 2016 being that upon receipt of her settlement she will no longer have an entitlement to crisis accommodation.
During the course of the submissions I was informed that the appeal may be listed in the October sittings of the Full Court. That is the last sittings of the Full Court in the Melbourne registry this year. If the matter is not listed then it will be listed in the first half of 2017. Having regard to the significant pressures on the Full Court, there is no certainty that the matter will be finalised by the Full Court until 2017. Hence, a stay of the operation of the orders will mean a delay of no less than five months and could extend to a year or beyond.
Given that the wife is unemployed and has the care of the parties’ three children with limited support from the husband, that delay is a significant factor in determining the issue.
It was submitted that absent evidence that the wife is a spendthrift or that she would dissipate her assets such that it could be inferred that she would take steps to put at risk her financial position, there was no basis for a stay of the orders. The wife relied upon the decision of the Full Court in Stephens & Stephens (Stay Application) [2010] FamCAFC 20; (2010) FLC 93-429 in support of that submission.
It was also submitted that the orders the subject of challenge are discretionary in nature, and as such it is likely that the Full Court will question the husband as to why such challenge does not offend the rule in House v The King (1936) 55 CLR 499.
Further it was submitted that a difference of five per cent between the 65 per cent adjustment sought by the husband and the 70 per cent adjustment ordered by the Court was a difference which was unlikely to attract the intervention of the Full Court. The wife also submitted that there are no factual bases relied upon by the husband which would persuade the Full Court that there has been an error in the exercise of the Court’s discretion. I am satisfied that there is much force in those submissions.
Nonetheless, whilst it cannot be said that the husband has a strong case on appeal, it is an arguable case. Thus, I must consider whether that appeal will be rendered nugatory absent a stay of the orders.
The wife’s position is that she and the children currently reside in crisis accommodation; that arrangement will end upon receipt of her property settlement. Thereafter it is likely that she will need to rent suitable accommodation for herself and the children and otherwise support the family from her property settlement. Whilst I do not accept the husband’s assertions that the wife will dissipate her settlement, I am satisfied that the wife will likely draw upon those funds to support the family, particularly having regard to the fact that she has no other assets, is unemployed and otherwise dependent upon social security and child support payments.
As a result, it is my view that it is appropriate that the wife be paid her entitlements under my orders, save for the amounts the subject of challenge as identified at paragraphs 33 and 34 hereof. Orders in those terms will ensure that the wife has a significant lump-sum at her disposal, whilst preserving the amounts the subject of challenge by the husband.
There have been significant delays in the finalisation of the matter and it is my view that the husband must take all reasonable steps to ensure that his appeal is pursued in a timely fashion. I propose to make orders that the wife have liberty to seek an order lifting the stay in the event that the husband does not prosecute his appeal and comply with the timelines imposed by the Court with respect to his appeal.
Other Matters
During the course of submissions I raised with the parties whether or not it was appropriate that an order be made pursuant to s 106A of the Act to facilitate the payment of monies pursuant to the orders. The wife supported the making of such orders to ensure that funds were released in a timely fashion.
Counsel for the husband sought instructions from her client with respect to this matter. Ultimately she submitted that she was not confident that her client understood the import of an order in those terms and accordingly made no submissions either in support or opposition of that order. In the circumstances, and having regard to the husband’s history of not complying with orders, as is detailed in my Judgment, I am satisfied that an order in those terms is appropriate.
The husband also sought orders that the funds held upon trust for the parties by the wife’s solicitor be transferred to an account controlled by the husband’s solicitor pending determination of his appeal. It was submitted that an order in those terms was appropriate due to the failure of the wife’s solicitor to comply with orders requiring provision of statements with respect to that account and the failure of the wife’s solicitor to respond to requests for statements, that request having been made last week.
The difficulty with that application is that it ignores the unusual circumstances that have given rise to the delay in provision of information to the husband’s lawyers.
The husband’s lawyers made a request for information regarding the trust account by letter dated 21 December 2015 (Exhibit H3). That letter was forwarded by email on the Monday immediately preceding the Christmas holiday period.
The wife’s former solicitor, who was a sole practitioner, died unexpectedly. As a result, his practice has been administered by the Law Institute of Victoria with the wife’s current solicitor only receiving instructions approximately two weeks ago.
The husband’s solicitor made a further request for information regarding the trust account last week in anticipation of the stay hearing.
Having regard to the history and particularly the fact that there has been no solicitor managing the day to day conduct of the matter for the period January to May 2016 inclusive, I am not satisfied that there is any basis for orders in the terms sought by the husband. Accordingly, I will dismiss that part of his application.
Accordingly, I made orders in the following terms:-
1.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.
2.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.
3.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.
4.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.
5.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.
6.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.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 May 2016
Associate:
Date: 27 May 2016
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