SEDEN & KEHOE

[2020] FamCA 85

FAMILY COURT OF AUSTRALIA

SEDEN & KEHOE [2020] FamCA 85

FAMILY LAW – PRACTICE AND PROCEDURE – Stay Application – Where the husband seeks a stay on orders for spouse maintenance pending appeal – Where the wife has received $100,000 partial property settlement – Where the wife receives a voluntary payment of $3,500 per month from the husband – Where it is appropriate to stay the order pending appeal.

Family Law Act 1975 (Cth) s 75(2)(o)
APPLICANT:	Mr Seden

RESPONDENT: Ms Kehoe

FILE NUMBER: SYC 7833 of 2018

DATE DELIVERED: 30 January 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 23 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Argyle Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Gardiner

SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers

Orders

1. Order 1 made on 13 December 2019 is stayed, pending finalisation of the husband's application for leave to appeal and appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seden & Kehoe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7833 of 2018

Mr Seden

Applicant

And

Ms Kehoe

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 13 December 2019 I made orders to the effect that the husband pay to the wife a sum of $100,000, as a partial property settlement, and $1,000 per week by way of interim spouse maintenance.  The husband has lodged an appeal against the order for interim spouse maintenance but not in relation to partial property settlement.  The husband requires leave to appeal against the interim order for spouse maintenance.

2. On 18 December 2019 the husband filed an Application in a Case, whereby he sought a stay, pending appeal, of the order for interim spouse maintenance.  I heard this application, which was opposed by the wife, on 23 January 2020.

3. The background to the proceedings is set out in my Judgment of 13 December 2019 and will be incorporated into these Reasons.  It is trite but true to say that an appellant has no automatic right to a stay of an order under appeal.  Additionally, the appellant bears an onus to point to circumstances which warrant a departure from the general rule that a judgment should be presumed to be correct and that the respondent is entitled to the fruits of the litigation.  Further, a determination whether to grant a stay is a discretionary exercise.

4. As I indicated in my Reasons for Judgment it seems that the Seden family has taken steps following the separation of the parties to amend or alter a pre-existing pattern of income distribution to the husband from the resources of the Seden Group.  This issue is one of a number which will probably be explored at trial.  The parties failed to reach an agreement at mediation.

5. Obviously, the husband is entitled to pursue his appeal and seek a stay of the interim order for spouse maintenance.  I am not persuaded that the costs which he has incurred in taking these steps demonstrate a lack of bona fides on his part.

6. I note that the husband will continue to make a voluntary payment to the wife of $3,500 per month.  I note further that he offered an undertaking to the court on 23 January 2020, to the effect that he would notify the solicitors for the wife in the event that he receives any distribution from any trust and that he would not deal with any such funds until the expiration of a period of 28 days thereafter.  In practical terms, I doubt that this undertaking will be of any benefit to the wife.  I would regard future receipt of dividends from any trust within the Seden Group by the husband to be a highly unlikely event.  I would note additionally that the husband deposed that he intends to prosecute his appeal expeditiously.

7. In my view, there is a fine balance between factors which militate in favour of and against the granting of a stay of the order for interim spouse maintenance.  I am persuaded that a stay should be granted for the following reasons:

   1.the wife has received a sum of $100,000 by way of partial property settlement.  It is now a matter for her whether she directs the whole or most of these funds to payment of legal costs or elects to apply some of this money to her living expenses.

   2.it was indicated at the hearing of the stay application on 23 January 2020 that the wife continues to live in the home of her parents and thus incurs no accommodation costs.

   3.the husband will continue to make a voluntary payment to the wife of $3,500 per month.

   4.the financial consequences to the wife of the granting of a stay together with unsuccessful appeal against the order for interim spouse maintenance can be taken into account, for example pursuant to section 75(2)(o) of the Act, at the stage of final orders for alteration of property interests between the parties.

8. For these reasons I will order that there be a stay of Order 1 made on 13 December 2019 pending finalisation of the husband's appeal.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 30 January 2020.

Associate: 

Date:  30 January 2020