Stephens and Stephens (No. 2)

[2009] FamCA 355

FAMILY COURT OF AUSTRALIA

STEPHENS & STEPHENS (NO. 2) [2009] FamCA 355

FAMILY LAW – ORDERS – STAY – granting of stay pending appeal in circumstances where refusal of stay would not render success on appeal nugatory- stay granted on balance of convenience

APPLICANT: Mr Stephens

RESPONDENT: Ms Stephens

FILE NUMBER: MLC 788 of 2009

DATE DELIVERED: 2 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne via video link with Sydney

JUDGMENT OF: COLEMAN J

HEARING DATE: 2 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Ackman QC

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That Orders 1 and 2 of 10 March 2009 be stayed until 4 pm on … May 2009 or further order of the Full Court.

2. That Orders 6 - 9 inclusive of 10 March 2009 be stayed until 4 pm on … May 2009 or further order of the Full Court.

3. That the costs of this Stay Application filed by Mr Stephens on 27 March 2009 be reserved to the Full Court hearing Mr Stephens’s Appeal on … May 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE VIA VIDEO LINK WITH SYDNEY

FILE NUMBER: MLC 788 of 2009

MR STEPHENS

Applicant

And

MS STEPHENS

Respondent

REASONS FOR JUDGMENT

1. This is an application by and on behalf of Mr Stephens, the husband, to stay orders made by the Court on 10 March 2009 in proceedings brought by Ms Stephens, the wife, against the husband to enforce orders of Strickland J which were upheld by majority on appeal to this Court and by majority on appeal to the High Court. The wife opposes the application.

2. In reality little of practical significance probably turns on whether a stay is granted or refused. It could not sensibly be concluded that refusing a stay would render nugatory the fruits of a successful appeal. It has been submitted by Senior Counsel for the wife that the appeal is itself specious. It was sensibly acknowledged by Senior Counsel for the wife that that was a proposition with which I could not readily agree. Clearly, I did not make the orders of 10 March 2009 in the belief that they were wrong. That is a matter for others to determine.

3. I approach the matter on the basis that notwithstanding the conclusion I reached as to the possible merit of the husband’s resistance to the wife’s enforcement application, it would be churlish and quite wrong for me to conclude that the appeal had no prospect of success. I have my own views about its prospect of success and they will so remain. They are of no moment.

4. If the stay is granted then the disputed moneys would be held by the stakeholders in an interest bearing account to abide the outcome of the husband’s appeal. As I understand the evidence of the wife, if the stay is refused the moneys will, albeit perhaps changed in form from cash to realty be preserved in a fashion which could not sensibly be suggested to render nugatory success on appeal if the husband is successful.

5. As Senior Counsel for the wife suggested, there is an element of balance of convenience involved in the exercise of discretion in those circumstances. A lot of matters appear in the affidavits; some of them have been agitated in oral submissions. With respect to Senior Counsel for the wife, I do not propose in an application of this kind, and having regard to the hour of the day, to refer to all of those matters. Instead I will focus on the reasons why I propose to grant a limited stay.

6. Although the wife will probably not see it this way, and I understand why she would not, and the husband would not thank me for saying so, what is most influential in my thinking is a desire, in the interests of the wife’s financial and emotional wellbeing, to place no impediment in the path of the husband’s appeal through to judgment as swiftly as possible. As the transcript of the proceedings in Melbourne in February would confirm, and with respect the husband has never made any secret about from the very beginning of the application which led to the Court's judgment of 10 March 2009, the husband has left no-one, including me, in the slightest doubt that if he did not achieve the outcome he sought, he would appeal and continue to appeal until, as I recollect his statements in Melbourne in February, the High Court corrected its erroneous decision of last year.

7. With those preliminary thoughts in mind I record that the appeal can be heard by a Bench of three Judges in Melbourne in May 2009; none of whom has had any previous connection with either of the parties or their litigious saga. That is to say, the determination of the husband’s appeal will not be impeded in any way by applications for disqualification either resulting in an adjournment of the appeal, or the need for the Full Court to give a judgment with respect to such application.

8. The husband’s appeal is likely to be disposed of by the Full Court with the utmost expedition. I accept what Senior Counsel for the wife says that I have no control over when the Full Court will deliver its judgment. In many cases judgments do take some time, for good reason. I would be astounded if the fate of the husband’s appeal was not determined expeditiously.

9. That is influential in granting a stay until May 2009, as the wife deposed in a recent affidavit in opposition to the stay to her intention to purchase real estate. In fairness, as her learned Senior Counsel acknowledged, it is unlikely that if the wife found a property tomorrow (unless conveyancing in Victoria is quite different to New South Wales) she would be able to settle that purchase by May 2009, or possibly prior to the appeal being determined.

10. One would think that even if the stay were refused, the wife would have to think very long and hard before she purchased a property for the amount of money she referred to in her affidavit and paid what I imagine (if it's anything like New South Wales) would be horrendous stamp duty, only to perhaps have to resell the property, possibly for less than she paid for it, pay agents commission and expenses so as to be able to reimburse the husband if his appeal is successful.

11. The other matter that has not been referred to, and with respect, that is not said critically of learned Senior Counsel for the wife, is the reality that if the stay is refused the husband will it is almost certain appeal against the refusal of the stay.  It is unlikely that such appeal would remain in abeyance until May 2009, thereby necessitating the convening of a further Full Court to hear that appeal.  That in turn being realistic about matters and the history of the litigation, would almost certainly result in possible elimination of a member or members of the Bench in May 2009, assuming that it did not result in the appeal itself being adjourned from that date.  That can hardly be in the wife’s interests.

12. In a balance of convenience situation, the Court concludes, notwithstanding the force of the submissions of Senior Counsel for the wife and, with respect to the husband, the somewhat disingenuous suggestion on his behalf that the money would be at risk of disappearing if a stay were not granted; that a limited stay should be granted. Senior Counsel for the wife submitted that there could be no stay as the moneys had been dispersed.

13. Without expressing a concluded view about that, it does seem that if the orders are stayed, then the entitlement to retain the moneys would necessarily be suspended, so that in practice there may not be a distinction between a stay where a payment has been made and a stay where a payment has not, save as to the practical reality that in one instance moneys would be repaid, and in the other they would not be paid out.

14. If I am wrong about that as I may be that, with respect to Senior Counsel for the wife, is a risk I will run rather than adopt the alternate approach the consequences of which for the wife I would have thought would be potentially to further prolong this already very lengthy saga of litigation.

15. I should have said in the course of indicating the factors that were influential in my thinking, that, realistically, any decision of the Full Court were it adverse to the husband with respect even to the stay would probably be likely to result in an application to another Court. On balance the course which is the least likely to frustrate or delay the final determination of the wife’s application seems to me to be the course which is to be preferred.

16. I should have said but omitted to say that, but for the payment out by consent, from memory on the first day of the hearing in February, of $1 million to the wife which she has utilised in the ways that she has outlined in her affidavit, the exercise of discretion in the husband’s favour may have been somewhat different. The husband could, had he chosen to do so, have delayed the receipt by the wife of that $1 million until at least 10 March 2009 and possibly beyond. He did not do that and to give credit where credit is due; that is a matter that has some significance in the exercise of discretion.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate: 

Date:  7 May 2009