REDWOOD & DELACEY (No.2)

[2020] FCCA 3425

FEDERAL CIRCUIT COURT OF AUSTRALIA

REDWOOD & DELACEY (No.2) [2020] FCCA 3425

Catchwords:
FAMILY LAW – Ruling on application for stay pending appeal.

Legislation:

Family Law Rules 2004 (Cth) r.22.11

Cases cited:

Aldridge & Keaton [2009] FamCA 106

Applicant: MS REDWOOD

Respondent: MR DELACEY

File Number: DGC 2126 of 2019

Judgment of: Judge Burchardt

Hearing date: 30 October 2020

Date of Last Submission: 30 October 2020

Delivered at: Dandenong

Delivered on: 30 October 2020

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: In person

Solicitors for the Respondent: Not applicable

ORDERS

1. The Application in Case filed by the Applicant on 21 October 2020 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Redwood & Delacey (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2126 of 2019

MS REDWOOD

Applicant

And

MR DELACEY

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter Mr Delacey seeks a stay of the orders that I made in the substantive proceeding.  He has filed an appeal against the orders made and that matter is before the Family Court.  Pursuant to rule 22, sub‑rule 11 the application of the stay must be heard by me.  The test as to stays is well-known and can almost be said to be trite.  One can say that the onus is on the applicant, but he does not need to show exceptional circumstances.  In the matter of Aldridge & Keaton [2009] FamCA 106 (“Aldridge & Keaton”) the Full Court set out a number of matters likely to be relevant in stay applications and I have regard to those matters, but it is not necessary to traverse them in any significant fashion. 

2. I have perused the grounds of appeal at the sort of impressionistic level that this kind of exercise involves.  I will only say that it cannot be said that the grounds of appeal are clearly hopeless.  Whether the grounds of appeal are held by the appeal court to have merit is a matter ultimately for the appeal court and it is not appropriate  for me to say more than what I have said.  Certainly it is not the case that the grounds of appeal, as it were, are hopeless or doomed to fail.  One of the matters upon which a very considerable emphasis is given in the authorities, which often goes to ground a stay, is that the outcome of the appeal may be rendered nugatory in the event that a stay is not granted. 

3. In this instance I have ordered Mr Delacey to pay a sum certain to Ms Redwood within a given period of time.  He has expressly informed me today that he has obtained approval to enable him to pay that sum.  It is, therefore, clear that the appeal will not be rendered nugatory in that sense if a stay is not granted.  The gravamen of Mr Delacey's application for the stay is a concern on his part that if the stay is not granted, and the payment is made in accordance with the orders the subject of appeal, which are of course still on foot until and unless the appeal court sets them aside, the respondent to this application Ms Redwood will dissipate those funds and he will not be able to get them back if he is successful. 

4. There are two matters, however, which, in my view, militate very strongly against this assertion.  The first is that Ms Redwood has substantial equity in the property in which she lives in KK Street, Suburb N.  That is clear from the findings that I made in my judgment.  She is a person who is keenly attuned to her financial interests and I would suspect will apply the funds paid to her to the benefit of herself and her child.  Second, the assertions as to dissipation of funds which the applicant Mr Delacey makes were matters he advanced essentially unsuccessfully in the hearing before me. 

5. I appreciate that he does not agree with my findings and, indeed, that is plain from the terms of the appeal, but until and unless reversed those conclusions must be taken to be correct.  In any event, and irrespective, as the materials presently stand I am not persuaded that the chances of the dissipation Mr Delacey fears are realistic.  If he is successful in his appeal then Ms Redwood, in my view, will far more probably than otherwise be in a position to make such restitution as may become necessary. 

6. I bear in mind the observations of the Full Court in Aldridge & Keaton as to the entitlement of a successful party to the benefits of the result they have obtained and the various other considerations motioned in Aldridge & Keaton which would go to support the outcome for which Ms Redwood contends.  In all these relevant circumstances in my view the application for a stay should be dismissed.  Otherwise there are no other orders I need to make.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 15 December 2020