Rowley-Abney and Rowley (No.2) - [2010] FMCAfam 1200

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROWLEY-ABNEY & ROWLEY (No.2)

[2010] FMCAfam 1200

FAMILY LAW – Ruling on stay application.

Family Law Act 1975

Applicant:

MR ROWLEY-ABNEY

Respondent:

MS ROWLEY

File Number:

MLC 8174 of 2010

Judgment of:

Burchardt FM

Hearing date:

20 October 2010

Date of Last Submission:

20 October 2010

Delivered at:

Melbourne

Delivered on:

21 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr J. Cantwell

Solicitors for the Applicant:

Hogg & Reid

The Respondent:

No appearance

IT IS NOTED that publication of this judgment under the pseudonym Rowley-Abney & Rowley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 8174 of 2010

MR ROWLEY-ABNEY

Applicant

And

MS ROWLEY

Respondent

REASONS FOR JUDGMENT

(Ruling)

Yesterday, I heard the husband’s application for a stay of a child support assessment. In substance, the husband sought, both on an interim and final basis, the stay of an order of the relevant English Court made on 11 January 2010.
I indicated I would be prepared to grant an interim stay of two months, provided the husband instituted and undertook to prosecute diligently an application in England to set aside the orders made there on

11 January 2010.
The husband was not prepared to give that undertaking. I indicated I was not prepared to allow him to proceed in Australia with his substantive application. This was for the reasons given yesterday. As I explained, Australia is a clearly inappropriate forum. At the risk of repetition, I repeat the following points.
The order which gives rise to the obligations that the husband seeks to set aside is not this Court’s order but that of the English Court. There is apparently some confusion as to quite how it is that the child support assessment is in the amount that it is but that confusion arises, it seems to me, from matters interrelating between the English authority REMO and The Child Support Agency. The reality is that the genesis of the matters of which the husband complains is entirely in England.
The wife lives in England and has never lived here and has no connection whatever with Australia. The husband has lived in the United Kingdom from 2002 to 2008 and has had some connection.

I note, in passing, I think it is important that the husband is in all probability rather wealthier than the wife; he can afford to litigate in Britain.
The husband has indicated through counsel that he will appeal and he is of course perfectly entitled to. I refused a stay and I said I would give my reasons for that today because yesterday was a very busy duty list with plenty of work still to be performed. These Reasons will be transcribed and forwarded to the parties.
Rule 22.11 of the Family Law Rules prescribes in subrule (1) that:
“The filing of a notice of appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.”
That is the prima facie rule. Therefore, there is no stay unless the Court orders one.
I do not propose to cite the law in detail as it is well-settled, but I will read the following short extracts from the CCH Practice at paragraph 53,330 in the following terms:
“It is clear from the terms of r 22.11(1) that the basic principle is that there is to be no stay of proceedings or the enforcement of the order pending an appeal unless the contrary is ordered. This upholds the well recognised principle that a successful litigant should not be deprived of the fruits of his litigation without good cause. In keeping with this general principle, the terms of these rules make it clear that an order for a stay is wholly discretionary. In Kelly & Kelly (1981) FLC 91-007 Fogarty J said, having considered two earlier Victorian cases concerning stays of execution, that a stay should not be granted as a matter of course, but only when “appropriate”

(or “special”) circumstances can be established. This accords with the principle followed in common law courts generally.
The circumstances that will justify an order for a stay will naturally vary from case to case. The strongest ground is usually the real risk that to deny a stay will render a successful appeal nugatory or will make it impossible or impractical to restore the situation presently existing.”
There are then extensive authorities cited.
Picking up under the same subpart of the practice book but at several paragraphs later, the authors go on to say:
“Further considerations that may properly be taken into account in deciding to grant a stay include the grounds and merits of the appeal.”
And the next paragraph after that:
“The factors relevant to the exercise of its discretion to stay an order were discussed by the High Court in De Lewinski v Director General NSW (1996) FLC 92-678. Gummow J quoted with approval the following passage from the High Court decision in Jennings Construction Ltd v Burgundy Royal Investments Pty Ltd (1986) 161 CLR 681 at 685:
In each case, when the Court is satisfied the stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.”
Here, of course, the husband has taken no steps to stay the operation of the order in England.
I repeat that each case turns on its own facts. Here, as I say, the husband has taken no steps to set aside the order made in England which, as I indicated yesterday, in my view he is well-entitled to do and in respect of which he would seem to have some prospects of success.
However, if the husband’s appeal is successful, he will not be ultimately defeated. It is the husband’s own case that the Sri Lankan orders made should prevail. Those orders require the husband to pay $250,000 rupees per month per child until further order, as is plain from exhibit ARA5 to the husband’s affidavit. I am informed and accept as a concession against interest by counsel that that amounts to $250 per child. The order is not limited by the minority of the elder child who has now turned 18.
If the husband is correct, that is to say if his appeal is successful, matters will be capable of appropriate adjustment, and I would further note that the amounts with which we are concerned - which, if I remember correctly, are approximately $1,300 per month - are not of themselves enormous for a person employed as a [occupation omitted], even leaving aside the confusion to which I have already referred arising out of the fact that he pays money directly to his elder child and the orders require him to pay such moneys to the wife.
The next matter that falls to be considered is the prospects of success. That is a matter in which I would wish to be somewhat circumspect, because it is a matter for the Full Court self-evidently as to what the prospects truly are. Clearly and axiomatically, I regard my decision as correct.
The points about the order of 11 January 2010 being made in England, and the wife’s complete lack of any connection with Australia, and the inferred problems she would suffer if litigating in this country as the husband seeks to compel her to, seem nonetheless formidable to me.
I would only say that I do not regard the husband’s appeal as being of overwhelming strength.
In the circumstances, one needs to consider the balance of convenience. If payments to the wife are cut off in England as the husband desires, she will plainly suffer immediate loss and be compelled to litigate in this country. As things presently stand, the husband is compelled to pay moneys he feels he ought not, although it is his own case that he should be paying not wholly insubstantial amounts in any event.
In my view, the balance of convenience falls overwhelmingly in favour of not granting a stay.
For all these reasons, I therefore dismiss the husband’s application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 21 October 2010