Self & Bachman (No 4)
[2022] FedCFamC1F 962
Federal Circuit and Family Court of Australia
(DIVISION 1)
Self & Bachman (No 4) [2022] FedCFamC1F 962
File number(s): SYC 2566 of 2016 Judgment of: HARPER J Date of judgment: 24 November 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay pending appeal – Where husband appeals final property orders – Where husband argues he will suffer capital gains liability to realise funds to pay the wife – Husband gives undertaking to retain assets pending appeal – Stay ordered. Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Clemett & Clemett (1981) FLC 91-013; [1980] FamCA 90
Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No 1) (1986) 160 CLR 220; [1986] HCA 13
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; [1986] HCA 86
Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 24 November 2022 Place: Sydney Solicitor for the Applicant: Adam Jones Solicitor The Respondent: Litigant in person The Independent Children's Lawyer: No appearance required ORDERS
SYC 2566 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SELF
Applicant
AND: MR BACHMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARPER J
DATE OF ORDER:
24 NOVEMBER 2022
THE COURT NOTES:
A.The undertaking of the Respondent Father to retain no less than $145,117 of assets pending determination of appeal number NAA247/2022.
THE COURT ORDERS THAT:
1.Orders 19, 20 and 21 made on 28 October 2022 in Proceedings SYC2566/2016 be stayed pending final determination of the appeal on condition that:
(a)the Court accepts the undertaking of the father, the subject of the previous notation; and
(b)the father is liable for and shall pay interest calculated pursuant to the provisions of the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) up to the date of payment, in the event the orders the subject of the appeal are not set aside.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Self & Bachman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
On 28 October 2022, I delivered final judgment and orders in this matter in respect of both parenting and property issues.
On 21 November 2022, the Respondent Father (“the father”) filed an Amended Notice of Appeal, and an Application in a Proceeding, seeking a stay of three of the final orders pending determination of his appeal. Those orders are numbers 19, 20, and 21.
Order 19 requires payment by the father to the Applicant Mother (“the mother”) of $145,117 within 30 days of 28 October 2022.
Order 20 is, in terms, a declaration that loans owing by the mother to the father are discharged. This declaration follows from an exercise of discretion to set off amounts owed by the mother to the father against the Court’s exercise of discretion to make a property adjustment order in favour of the mother. This set off resulted in the balance owning by the father of $145,117.
Order 21 is, in terms, a standard declaration that, apart from the property adjustment orders, the parties are the legal and beneficial owners of assets and liabilities otherwise in their possession and control.
The principles to be applied in determining an application for a stay of orders pending appeal are well-known: Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No 1) (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013 at 1332.
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Court stated that:
18. … The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter 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 bona fides of the applicant;
•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 desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; …
The mother is entitled to the fruits of the judgment, and entitled to assume my judgment is correct. On a cursory examination, the grounds of appeal are, in some respects, hard to follow, and even if upheld, would not result in the final orders being set aside. However, I will assume in the father’s favour that the appeal is arguable and brought bona fide.
The father does not argue that his appeal would be rendered nugatory if the stay is not granted, rather, his central contention is that he will suffer prejudice because, in order to pay the wife $145,117, he will have to sell shares and accrue a capital gains liability of $16,555. I note, however, that it appears he is also attempting to refinance a mortgage to comply with Order 19.
Nonetheless, he argues that the mother has substantial final resources, and does not require $145,117, pending determination of the appeal. He also undertakes to retain that sum, pending appeal. For those reasons, he argues the balance of convenience favours granting the stay.
The wife opposes the stay, but does not point to any incurable prejudice, if the stay is granted on the father’s undertaking. I am satisfied that it is appropriate to grant a stay of the three orders the subject of this application, proceeding on the father’s undertaking, and on condition that the father pays interest calculated pursuant to the provisions of the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), up to the date of payment in the event his appeal is unsuccessful.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 24 November 2022. Associate:
Dated: 6 December 2022
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