Salim & Hakim (No. 4)
[2021] FamCA 548
•29 July 2021
FAMILY COURT OF AUSTRALIA
Salim & Hakim (No. 4) [2021] FamCA 548
File number(s): PAC 5392 of 2020 Judgment of: FOSTER J Date of judgment: 29 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application for stay pending appeal – where application made by the husband for stay of interim orders pending appeal – where consideration of applicable principles – where consideration of balance of convenience – where no merit in grounds of appeal – where application for stay dismissed – where costs reserved. Legislation: Family Law Rules 2004 (Cth) r 22.11 Cases cited: Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (1985) 2 NSWLR 685
Salim & Hakim (No. 2) [2021] FamCA 495
Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548; (2000) FLC 93-024
Jackson & Balen [2009] FamCAFC 131
Kendling & Kendling [2008] FamCAFC 70
Re Middle Harbour Investments Ltd (in Liq) (unreported, Court of Appeal (NSW), 15 December 1976)Number of paragraphs: 39 Date of hearing: 23 July 2021 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Counsel for the First Respondent: Mr Batey Solicitor for the First Respondent: York Law Family Law Specialists Solicitor for the Second Respondent: Ms Hariri of Zahr Partners ORDERS
PAC 5392 of 2020 BETWEEN: MS SALIM
Applicant
AND: MR HAKIM
First Respondent
MS NOOR
Second Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1.The husband’s application for stay be dismissed.
2.That the question of costs relating to the application be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Salim & Hakim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 12 July 2021 the Court made certain interim orders in the context of ongoing financial proceedings as between the primary applicant wife and the primary respondent husband. These reasons assume familiarity with the reasons for judgment delivered on 12 July 2021: Salim & Hakim (No. 2) [2021] FamCA 495.
Those orders were as follows:
(1) The wife’s application for periodic spouse maintenance be dismissed.
(2)The husband pay to the wife within 21 days from this date the sum of $100,000 with the categorisation of such sum reserved to agreement between the parties or final hearing.
(3)Pursuant to s 106B of the Family Law Act 1975 (Cth) the Memorandum of Lease dated 3 May 2021 between the husband as landlord and the second respondent as tenant in relation to the property at C Street, Suburb D be set aside.
(4)The second respondent vacate the property at C Street, Suburb D by no later than 21 days from this date.
(5)Liberty to the applicant wife to apply for a Writ of Possession on short notice.
(6)The husband indemnify the second respondent in respect to her reasonably incurred relocation and removal expenses within seven days of receiving evidence of payment of such expenses by the second respondent.
(7)Pending further order the wife shall have sole use and occupation of the former matrimonial home at C Street, Suburb D as and from 21 days from this date and that thereafter the husband be restrained from doing any act or action that may interfere with the wife’s peaceful use and enjoyment of the said property.
(8)The husband shall, pending further order, cause the payment of property outgoings as they fall due and payable, being levied council and water rates and insurances and mortgage payments.
(9)The husband shall, concurrently with the wife taking up occupation of the C Street property, cause to be returned to the property by arrangement with the wife through her solicitors all items of personalty, furnishings, furniture, white goods and clothing and personal effects of the wife and children removed by him from the C Street home.
On 13 July 2021 the husband filed a Notice of Appeal incorporating an application for leave to appeal to the Full Court. Otherwise, on 13 July 2021 the husband filed in the Full Court an application seeking expedition of his appeal with that application supported by his affidavit sworn 13 July 2021.
On 19 July 2021 the husband filed an Amended Notice of Appeal incorporating an application for leave to appeal. On 22 July 2021 the second respondent (tenant) filed a Submitting Notice in relation to the husband’s appeal thus submitting to any order the Full Court may make in the context of the appeal.
The husband’s application for expedition of the appeal was heard and determined on 21 July 2021. An order was made that the appeal be expedited. In reasons for judgment in relation to the expedition application, the Court set out a short summary in relation to the basis for expedition as follows:
6The parties were married on … 2004. They have three children who were born in 2004, 2008 and 2013 and the parties and the children lived in the marital home from 2004 except for a period of two years when they lived overseas.
7The date of their actual separation is a matter of contention but there is no dispute that in February 2020 the wife and children left the marital home and moved in with her parents in their rented unit which was said to have been in poor repair and unsuitable accommodation for the children and the wife. The wife it was said was sleeping on a mattress on the floor with one of the children. Later on, bigger and more appropriate accommodation was arranged for the wife, children and her parents although the wife maintained that it was not large enough for all of them. At the time of the hearing before the primary judge, the wife and her parents had received a notice to vacate that accommodation because the property had been sold and by her submissions this morning it appears that any opposition by her to being ordered to vacate the accommodation would ultimately become a matter for the Administrative Tribunal.
8On 12 October 2020 the wife applied for final property orders and in April 2021 she filed an application in a case seeking orders for exclusive occupancy of the home.
9On 3 May 2021 the husband entered into an agreement to lease the marital home between himself as landlord and the second respondent as tenant. It seems to be undisputed that the husband was aware of the wife’s application for sole occupancy at the time he arranged to rent the marital home. He said that his financial circumstances were such that he had to lease the home notwithstanding the wife’s then extant application for sole occupancy. Apparently the contents of the home were removed by him prior to the tenant taking possession.
10The second respondent’s evidence to the primary judge was that she became aware that the parties’ home was available to rent in late April 2021.
11The primary judge set aside the lease as between the husband and second respondent, ordered that the husband indemnify the second respondent in relation to her reasonable relocation expenses and other expenses referrable to the setting aside of the lease. The primary judge noted that the husband had leased the accommodation originally occupied by the wife’s parents paying a bond for the rental of that property and committing to paying the weekly rental. His Honour observed that the second respondent could live there temporarily should she want. His Honour further ordered that the wife have sole use and occupation of the property, that the husband pay all necessary outgoings on the property and return the contents to the house.
12The husband indicated on the application for expedition that he has sought a stay of the primary judge’s orders and proposed that expedition of the appeal might have an effect on whether the primary judge stayed the orders. That application is listed on 23 July 2021.
The Court further said:
15Two matters of those factors are relevant here. The first is the prejudice to the respondent and given the perilous nature of the respondent’s accommodation and her evidence to the primary judge of her sole source of income being receipt of government benefits, it was said that there would be a prejudice to her if the appeal was not expedited because she needs to know where she and the children are going to be living and how they are going to support themselves.
16Given the position of the wife and the children of the marriage, that is being on the verge of being evicted from their present accommodation, and an appeal against the orders giving her access to the matrimonial home in my view that is a circumstance relevant that would cause this appeal to be given priority over other matters listed for appeal.
17I feel bound to say however that were it not for the wife’s position and that of the children nothing the husband put would necessarily persuade me that this matter should be expedited but as I say in all of the circumstances in my view it should be.
The present application
On 13 July 2021 the husband filed an application for a stay order in relation to those orders. His application was supported by his affidavit filed 13 July 2021 and an outline of case and submissions filed 23 July 2021 (Exh “A”).
The second respondent, the present tenant of the former matrimonial home, filed a Response to the husband’s Application in a Case in substance supporting of the husband’s application for stay, the second respondent relied upon her affidavit filed 22 July 2021.
By reason of the application for stay coming on urgently, the wife was required only to file in response an outline of her submissions. Those submissions were filed on 22 July 2021 (Exh “B”).
It is well settled that a stay will not be granted lightly or as a matter of course.
The power to order a stay (r 22.11 of the Family Law Rules 2004 (Cth)) is incidental to the right of appeal and derives from the inherent power of the Court to do whatever is necessary to prevent injustice in relation to the proceedings in the Court: Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548; (2000) FLC 93-024.
In Jackson & Balen [2009] FamCAFC 131 the Full Court said at [28]:
The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681).
Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
a)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;
b)a person who has obtained a judgment is entitled to the benefit of that judgment;
c)a person who has obtained a judgment is entitled to presume the judgment is correct;
d) the mere filing of an appeal is insufficient to grant a stay;
e) the application must be bona fides;
f)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;
g)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;
h)some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
In Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (supra) the NSW Court of Appeal outlined relevant principles as follows (at 694-695):
It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.
There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties ... The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears ... The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.
...
Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay ... Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay ... Secondly, although courts approaching applications will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution of judgment...
The Court of Appeal also referred with approval to the approach enunciated by Mahoney JA (with whom Moffitt P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in Liq) (unreported, Court of Appeal (NSW), 15 December 1976) (at 2):
Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct ... where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
The present Appeal requires leave to appeal from the interlocutory judgment. For leave to appeal to be granted there must be sufficient doubt about the decision to warrant it being reconsidered, and that substantial injustice would result if leave were refused, supposing the decision to be wrong: Medlow v Medlow [2016] FamCAFC 34.
The Wife’s appeal involves an appeal against a discretionary judgment. The limits on appellate interference in respect of such judgments are well known: see House v The King (1936) 55 CLR at 504 – 5 (Dixon, Evatt and McTiernan JJ):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The existence of appellate arguments are not of themselves a sufficient basis for a stay: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685.
The husband in his Amended Notice of Appeal and application for leave to appeal sets out various grounds of Appeal as follows:
1.That His Honour erred in making Order 2 in failing to identify the head of power and in leaving that determination to the parties by agreement or the final hearing.
2.That His Honour erred in making an order that the Appellant pay the Respondent $100,000 within 21 days there being no evidence that such amount was available within such time frame and further or in the alternative His Honour failed to give reasons for his finding that it was proper as determined at #97 that it be paid within a month.
3.That His Honour failed to give reasons or adequate reasons as to why the Appellants proposal identified at #67 did not meet all of the Respondent’s asserted claims in circumstances where the Respondents brothers owed the moneys.
4.That His Honour having found at #81 that the Court could not be satisfied that the Respondent could not support herself adequately erred in then making Order 8 (a maintenance order) and in consequence Orders 3 to 7 and 9.
5.That His Honour erred in taking into account as an irrelevant consideration at #102 that the Appellant made no comment as to the circumstances of the Respondent’s parents.
6.That His Honour erred in failing to give reasons or adequate reasons for his finding at #70 that the Respondents decision to not seek further advances from her friend did not impact on the interim issues.
7.That His Honour failed to give reasons or adequate reasons as to how the interests of the Second Respondent were protected by the Orders made.
8.That His Honour failed to give reasons or adequate reasons, including by way of identifying the head of power, for the making of Order 8.
9.That His Honour failed to give reasons or adequate reasons, including by way of identifying the head of power, for the making of Order 9.
10.That His Honours discretion in the making of each of the Orders miscarried in circumstances where His Honours determinations were based on inferences rather than findings supported by reasons.
It is necessary to briefly consider the merits of the husband’s appeal.
As to Ground 1, it is trite to say that the approach of permitting interlocutory capital monetary orders to be characterised by the circumstances that may exist at final trial is an approach that is well settled. In Kendling & Kendling [2008] FamCAFC 70 at [12] the Full Court said:
Although his Honour determined the wife’s application pursuant to s 117 of the Act, he left the ultimate characterisation of the amount to be paid to the Judge who would finally determine the property settlement proceedings. This approach would seem to have been open to his Honour on the basis of what was said by the Full Court in Zschokke & Zschokke (1996) FamCA 79; (1996) FLC 92-693 at 83, 215-6; (1996) FamLR 275 at 389-90.
This contention has no merit.
As to Ground 2, the husband purported to meet the wife’s claim for a capital payment by offering to her an assignment of the monies owed to him by a third party. It must be inferred that such assignment had value in that the wife was able to call in the debt to meet her need. If that not be the case, the “offer” is but sharp practice. Otherwise, there was considerable evidence of large sums of money being available to, and being paid out by, the husband. There is no merit in this ground.
As to Ground 3, see Ground 2 above. The “offer” was of the same worth one would expect in the hands of the husband who must have known that the loan could be called in and thus be able to meet the payment ordered. There is no merit in this ground.
As to Ground 4, the payment of outgoings is ancillary and part of the order under s 114 of the Family Law Act 1975 (Cth) (“the Act”) for sole use and occupation. The home is owned by a corporate trustee controlled by the husband. It has the legal obligation to make such payments. A default could see the home sold from under the wife. The Court may make such order as is proper. There is no merit in this ground.
As to Ground 5, the Court was simply making an observation as to the husband’s failure to acknowledge the assistance to the wife and children by her parents. There is no merit.
As to Ground 6, the observation was not a conclusion but simply a statement of fact from the wife’s evidence. It was unchallenged. There is no merit.
As to Ground 7, the interests of the second respondent were limited once the lease was set aside. Her costs of relocation and removal were the subject of the indemnity order made as against the husband. The second respondent has not appealed. She was put in her position by the wilful act of the husband to thwart the wife’s application for her and the children to return to their home. There is no merit in this ground.
As to Ground 8, this ground has no merit. The various available jurisdictional bases are discussed at length in the reasons for judgment. There is no merit in the ground.
As to Ground 9, the order was ancillary to the sole use and occupation order made in circumstances at the trial where the husband acknowledged possession of the items and represented that they were available to her. In such circumstances the injunctive order to facilitate the same was proper. The ground is without merit.
As to Ground 10, the circumstances that a Court finds itself in the context of interim hearings is well known. In circumstances where the whole of the matrimonial property and income is controlled by the husband whose evidence is lacking in particularity and is suggestive of sharp practice and a failure to be frank with the Court, then the Court is more at large in making such orders. The ground has no merit.
The onus is on the husband to demonstrate a proper basis for the stay orders sought by him. It is settled that it is not required to demonstrate special or exceptional circumstances. The appellant husband complains that the orders made involve a transfer of a significant sum of money to the wife wherein the appeal concerns whether this is reasonably practicable. It is readily apparent from the primary reasons for judgment and indeed the discussion above in relation to the grounds of appeal, that it was the husband’s own case that such funds would be available to the wife by virtue of his assignment of third party debt. The husband raised at hearing no issue as to any lack of availability of the debt being called in. The order made simply requires him to do so and in such a sum that is less than the amount of the debt that he asserts.
Otherwise, the husband makes complaint as to the 21 day period provided for in the orders for vacant possession and for the wife to assume sole use and occupation of the subject property. The timeframe is reflective of the urgency that confronts the wife and children in being ousted from their present rental property by reason of its sale. Such is to be balanced against the second respondent’s position where the lease in her favour has been set aside and she is required to vacate the property. The enforcement of the wife’s right of occupation, of course, is a matter for the wife and she may apply for a writ of possession as she is advised. Such application may well see some arrangement between the second respondent and the wife in the circumstances.
Having regard to the preceding discussion and the discussion as to the husband’s grounds of appeal that demonstrate little merit, there is little basis for a stay being granted, particularly in circumstances where the second respondent has not appealed and has simply filed a submitting appearance.
The Court is required to consider the bona fides of the husband’s appeal. The grounds of appeal have been considered above. The appeal has been prosecuted promptly including the application for expedition. However, it was submitted to the Court that notwithstanding expedition the appeal would not be heard until after early September 2021. Such a circumstance in relation to the hearing of the appeal, if leave was granted to appeal, and the resultant delay in judgment would place the wife in a very difficult position in relation to accommodation, notwithstanding that she has only just obtained salaried employment.
The husband contends properly that the Court is required to consider whether the appeal will be rendered nugatory in the event that a stay was not granted. The position of the second respondent is clear, the lease has been set aside, and the second respondent has not appealed the Court’s orders. The second respondent raises in the context of the stay application the difficulties in obtaining alternate accommodation. Such is the position that she has been placed in by the husband’s conduct in seeking to frustrate the wife’s application for sole use and occupation of the home. Absent the occupation of the home by the second respondent, it is readily apparent that an order in favour of the wife for sole use and occupation of the home would have been made. In the event that the husband is successful as to the wife and children’s occupation of the home the Full Court may re-exercise the discretion and make such orders as the Full Court sees proper. Should the Full Court think it proper the court may oust the wife and children from their home or remit the issue for rehearing at some indeterminate time in the future having regard to the courts present lack of resources.
The husband contends that there is no source of funds sufficient to meet the lump sum order made in favour of the wife, absent of course the prompt repayment of the debt sought to be assigned by him to the wife. It is inherent in his offer to assign the debt that the funds were reasonably available if called upon by the wife. In default of the husband making the payment the wife is at liberty to enforce that payment as she sees fit.
The Court is required to balance issues of convenience in relation to all parties. There is no issue that the second respondent has the capacity to obtain alternate and other rental accommodation. Such was contended by her in her evidence at trial. As to the husband, he had vacated the home and now resides elsewhere. The wife and children were dislocated from the home by the husband’s conduct and have been required to live initially in unsatisfactory rental accommodation and then slightly more favourable accommodation by reason of assistance from the maternal grandparents. The wife and children face uncertainty in terms of their accommodation by reason of the rental premises they occupy with her parents being sold. There are presently proceedings in the Tenancy Tribunal seeking to have them ejected from the rental premises.
The husband, otherwise, controls the assets and income of the parties, the nature and extent of which remains reasonably unclear in terms of the evidence adduced by him. His business has significant turnover and the disposition of that turnover is, to say the least, clouded in uncertainty as a consequence of such disclosure as has been made by the husband. There is significant suspicion that he has not been full and frank with the Court.
Clearly, the balance of convenience favours the wife, and of course the children, in being able to return to their home and for the wife to receive the modest capital sum ordered.
In all the circumstances the husband’s application for stay is dismissed. The question of costs relating to the stay application is reserved with liberty to apply.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 29 July 2021
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