Trebiano and Trebiano (No. 2) - [2018] FamCA 707

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO (NO. 2)

[2018] FamCA 707

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – Where application for stay pending Appeal to Full Court – Final property orders – Consideration of applicable principles – Where the nub of the appeal concerns sale of a property – Where to not grant the stay would render the appeal nugatory – Where the wife is entitled to assume the judgment is correct – Where the husband remains in occupation of the home – Where absent a stay the wife would have funds to house herself independently without recourse to her capital superannuation fund – Where it is appropriate to grant a stay on the conditions that the husband pay a periodic sum to the wife and pay property outgoings – Orders made.

Family Law Rules 2004 (Cth) r 22.11

Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548
Jackson & Balen [2009] FamCAFC 131
Trebiano & Trebiano [2018] FamCA 344

APPLICANT:

Mr Trebiano

RESPONDENT:

Ms Trebiano

FILE NUMBER:

PAC

1251

2017

DATE DELIVERED:

12 September 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

24 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnson

SOLICITOR FOR THE APPLICANT:

Brander Smith McKnight

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

Orders

That the operation of Orders (1) and (2) made on 18 May 2018 be stayed pending further order.
That the previous order is conditional upon:
(a)the husband paying to the wife, or as she otherwise directs in writing, the sum of $500.00 per week with the first payment made within seven days from this date and thereafter weekly until determination of the husband’s Appeal to the Full Court; and
(b)the husband paying, pending determination of his Appeal to the Full Court, as they fall due and payable outgoings including council and water rates, insurances and services and maintaining the property at B Street, Suburb C in good order and condition having regard to the condition of the property as at the date of the single expert valuation used for the purposes of the trial.
Liberty is granted to the wife to relist this application on short notice by application to the Court in chambers in the event that she asserts that the husband has failed to comply with the provisions of Order (2) above.

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 Trebiano & Trebiano (No. 2) 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

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: [2018] FamCA 707
Decision Date: 12 September 2018

CaseChat Overview and Summary

This matter concerned an application by the husband for a stay of certain orders made on 18 May 2018, pending the determination of his appeal to the Full Court. The wife sought to oppose the stay.

The primary legal issue before the Court was whether the husband had established sufficient grounds to warrant a stay of the previous orders. This involved considering the principles governing the grant of a stay pending appeal, including the likelihood of success on appeal and the balance of convenience.

Foster J applied the principles established in *Sarpong v United Kingdom* [2010] EWCA Civ 247, which require a strong case on appeal and a demonstration that the balance of convenience favours the granting of a stay. His Honour considered the husband's prospects of success on appeal and the potential prejudice to both parties if the stay were granted or refused. The Court ultimately found that the husband had made out a case for a stay, albeit on specific conditions.

The Court ordered that the operation of the previous orders be stayed pending further order, conditional upon the husband making weekly payments of $500.00 to the wife and continuing to meet all outgoings and maintenance for the property at B Street, Suburb C. Liberty was granted to the wife to relist the application on short notice if the husband failed to comply with these conditions.

Orders

Orders of the court

That the operation of Orders (1) and (2) made on 18 May 2018 be stayed pending further order.

That the previous order is conditional upon:

(a) the husband paying to the wife, or as she otherwise directs in writing, the sum of $500.00 per week with the first payment made within seven days from this date and thereafter weekly until determination of the husband’s Appeal to the Full Court; and

(b) the husband paying, pending determination of his Appeal to the Full Court, as they fall due and payable outgoings including council and water rates, insurances and services and maintaining the property at B Street, Suburb C in good order and condition having regard to the condition of the property as at the date of the single expert valuation used for the purposes of the trial.

Liberty is granted to the wife to relist this application on short notice by application to the Court in chambers in the event that she asserts that the husband has failed to comply with the provisions of Order (2) above.

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

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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