Selwood and Selwood (No. 2) - [2014] FamCA 867

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD (No. 2)

[2014] FamCA 867

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – where husband seeks a stay of financial orders pending outcome of appeal – where wife opposes sale and seeks to enforce final orders – husband seeks to appeal percentage adjustment and the wife’s sole occupation of the former matrimonial home – whether appeal rendered nugatory – wife entitled to fruits of the judgment – balance of convenience – stay of some orders granted on conditions

FAMILY LAW – PRACTICE AND PROCEDURE – Variation of Final Orders – where husband seeks partial property settlement following final orders to meet past and future legal costs –where husband submits Court has power to make orders pursuant so s 80 or s 117 – wife opposes husband’s application – orders sought by husband make no provision for a distribution of funds to the wife – sufficient security and conditions of stay

Family Law Act 1975 (Cth) ss 80, 117
Family Law Rules 2004 (Cth) r 22.11

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Friscioni & Friscioni [2009] FamCAFC 43
In the Marriage of Davidson (1994) 17 Fam LR 656
Strahan & Strahan (Appeal Costs) [2009] FamCAFC 225
TWN & PAQ (2005) FLC 93-230; [2005] FamCAFC 677
Trahn & Long (No 2) [2008] FamCAFC 194
Yunghanns and Ors & Yunghanns and Ors (1999) FLC 92-836
Zschokke & Zschokke (1996) FLC 92-693; (1996) 20 Fam LR 766

APPLICANT:

Mr Selwood

RESPONDENT:

Ms Selwood

FILE NUMBER:

DNC

359

2010

DATE DELIVERED:

14 October 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

9 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Norrington

SOLICITOR FOR THE APPLICANT:

DS Family Law

COUNSEL FOR THE RESPONDENT:

Ms Farmer

SOLICITOR FOR THE RESPONDENT:

Withnalls Lawyers

Orders

Pending determination upon appeal paragraphs 23(a), (b) and (d), and 28 of Orders made 18 July 2014 are stayed.
That the husband and wife each receive ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000] from the proceeds of sale of the properties located at L Street, Suburb M, in the Northern Territory and N Street, Suburb P in the Northern Territory.
The monies referred to in paragraph (2) be placed and retained in interest bearing trust accounts in the names of each of the respective solicitors for the husband and wife pending further order.
That the balance of the proceeds of sale be deposited into and retained in an interest bearing account in the joint names of the parties pending further order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood & Selwood (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 359 of 2010

Mr Selwood

Applicant

And

Ms Selwood

Respondent

REASONS FOR JUDGMENT

Introduction

On 18 July 2014 I delivered judgment in relation to both parenting and property matters between Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FamCA 867
Decision Date: 14 October 2014

CaseChat Overview and Summary

In *Selwood and Selwood (No. 2)*, Dawe J of the Family Court of Australia considered an application by the husband for a stay of financial orders made on 18 July 2014, pending the determination of his appeal against those orders. The wife opposed the stay, seeking to enforce the final orders, which included the sale of properties and her sole occupation of the former matrimonial home. The husband's appeal concerned a percentage adjustment to the property settlement and the wife's sole occupation of the former matrimonial home.

The primary legal issues before the court were whether the husband's appeal would be rendered nugatory if a stay was not granted, and how to balance the wife's entitlement to the fruits of the judgment against the husband's right to pursue his appeal. The court also considered the husband's separate application for a variation of the final property settlement orders to meet past and future legal costs, which the wife opposed.

Dawe J applied the principles governing applications for a stay of execution pending appeal, considering the balance of convenience and the potential for the appeal to become academic. The court determined that a partial stay was warranted to preserve the subject matter of the appeal and prevent the wife from receiving the full benefit of the judgment before the appeal was heard. The court also addressed the husband's application for variation of orders, noting that such applications required careful consideration, particularly when they sought to alter the distribution of assets without providing for the other party.

The court ordered that certain paragraphs of the 18 July 2014 orders be stayed pending the determination of the appeal. Specifically, the husband and wife were each to receive $150,000 from the proceeds of sale of two specified properties, with these funds to be held in trust by their respective solicitors. The remaining proceeds of sale were to be deposited into a joint interest-bearing account pending further order.

Orders

Orders of the court

Pending determination upon appeal paragraphs 23(a), (b) and (d), and 28 of Orders made 18 July 2014 are stayed.

That the husband and wife each receive ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000] from the proceeds of sale of the properties located at L Street, Suburb M, in the Northern Territory and N Street, Suburb P in the Northern Territory.

The monies referred to in paragraph (2) be placed and retained in interest bearing trust accounts in the names of each of the respective solicitors for the husband and wife pending further order.

That the balance of the proceeds of sale be deposited into and retained in an interest bearing account in the joint names of the parties pending further order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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