Varnham and Moses (No 2)

[2020] FamCA 1002

FAMILY COURT OF AUSTRALIA

VARNHAM & MOSES (NO. 2) [2020] FamCA 1002

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders – Where the husband seeks a further stay of final orders and an injunction restraining the wife from enforcing such orders – Where a Notice of Appeal has been filed against those orders – Where a stay was previously granted – Where the parties’ positions have changed – Where the appeal will proceed undefended by the wife – Where the husband is now employed – Where the wife has sold one property retained as a result of final orders –  Where the appeal would not be rendered nugatory if the stay was not granted – Application dismissed.

Family Law Rules 2004 (Cth) r 22.11

APPLICANT: Mr Varnham

RESPONDENT: Ms Moses

FILE NUMBER: NCC 1058 of 2017

DATE DELIVERED: 27 November 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 20 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Lander & Rogers (Sydney)

THE RESPONDENT: Self-represented

Orders

1. The Application in a Case of the husband filed 10 November 2020 is dismissed.

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 Varnham & Moses 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 NEWCASTLE

FILE NUMBER: NCC 1058 of 2017

MR VARNHAM

Applicant

And

MS MOSES

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by Mr Varnham (“the husband”) for a stay of certain final orders[1] made by this Court on 14 February 2020 (“the 14 February Orders”). The orders are as follows:

   (1)That within 60 days of the date of these orders the husband shall pay to the wife the sum of $301,406.

   (2)That simultaneously the husband and the wife shall do all acts and things and sign all documents necessary to transfer to the wife all of the husband’s right, title and interest in the property at B Street, Suburb C, New Zealand (“the New Zealand property”) and its offset accounts.

   (3)That simultaneously with the transfer referred to in Order 2, the wife shall do all acts and things to discharge the mortgage secured on the New Zealand property and the wife shall indemnify the husband for all claims in respect of the mortgage until the discharge is effected.

   [1] Final Orders dated 14/02/2020, Orders 1 – 3.

2. The stay is sought pending the hearing and determination of an appeal by the husband against those orders.

3. The application for a stay was opposed by Ms Moses (“the wife”).

4. The wife has represented herself at all court events since the trial in July 2019 which gave rise to the 14 February orders.

First application for stay – 8 April 2020

1. This is the second application by the husband for a stay.

2. The first stay application came before the Court on 8 April 2020. There were two main factors raised which are contained within the following paragraphs of the affidavit of the husband:[2]

   [6.]I am currently unemployed and do not see any prospects of gaining employment given the COVID-19 crisis and the fact that employers have now put a hold on recruitment.

   and

   [16.]The New Zealand government has implemented certain financial measures to combat the financial strain on homeowners and the unemployed.  Given Ms Moses falls into those two categories, she is likely to receive increased welfare payments as well as a grace period of six months in relation to the repayments on her mortgages.

   [2] Affidavit of the husband filed 30/03/2020

3. The Court raised for the consideration of the parties in the first stay application that the relevant orders be stayed until 13 November 2020 or until the pending appeal was heard, whichever event occurred first, with an October 2020 date to enable consideration of any application for extension of the stay. The husband agreed to that way forward. The wife was amenable to a stay in the circumstances and wished to explore the mortgage relief which might be on offer from the mortgagor of the New Zealand property.

4. Orders (“8 April orders”) were made as follows:

   (1)That the operation of Orders 1, 2 and 3 of the orders made by the Honourable Justice Cleary on 14 February 2020 be stayed until Friday 13 November 2020 or until the pending appeal (EA32 of 2020) is heard and determined, whichever event occurs first.

   (2)This matter is listed at 9.30 am on Friday 16 October 2020 for further consideration.

   (3)That the husband and wife shall forthwith do all acts and things including signing all necessary forms to obtain the financial hardship relief offered by Westpac New Zealand in relation to the four mortgages registered on title to the property situated at B Street, Suburb C, New Zealand in the joint names of the husband and the wife.

   (4)In the event the parties’ joint application, pursuant to Order 3 above, to obtain financial hardship relief offered by Westpac New Zealand is not granted the matter can be relisted by either party before the Honourable Justice Cleary on three days notice.

   The Court notes that:

   a)The Court accepts the undertaking of the husband offered through senior counsel appearing for him today that he will prosecute the appeal with all due diligence.

   b)The stay is granted in the terms set out above without prejudice to the applicant’s right to apply for an extension of the stay.

5. On 28 April 2020 the matter was relisted on the application of the wife.  The wife advised the Court that mortgage relief/holiday had been granted for a lesser period than she had hoped with interest continuing to accrue. The wife wanted the stay to be lifted but was advised that could only be achieved by an appeal against the Stay decision.  That application was dismissed with costs reserved to the mention date on 16 October 2020.

6. On 22 October 2020 (varied from 16 October 2020) the matter came before the Court as contemplated by the 8 April orders. The wife had also filed an application in a case proposing that the stay be lifted forthwith and that the 14 February orders become operative. On that day the application of the wife was dismissed. The Court pointed out to the wife that the stay would expire in three weeks; that is on 13 November 2020 as the 8 April orders had provided.

7. No application for extension of the stay was made on that day.

8. The wife was therefore entitled to assume that orders would then be complied with.

Current application

1. On 11 November 2020 this current application was filed by the husband seeking again a stay of the orders plus an order injuncting and restraining the wife from enforcing the final orders. There was an affidavit in support by the husband.  The wife also filed an affidavit.

2. The husband sought orders for the parties to be directed to family dispute resolution. That order was sensibly not pressed.

3. This is a fresh application for a stay and is determined on its own merits. The position of the parties has changed.

4. First, the wife has advised the appeals registrar that she does not intend to participate in the appeal. She confirmed that intention during submissions in this application. Accordingly, the appeal will proceed undefended by the wife and is likely to take considerably less time on that account. A date of hearing is yet to be nominated. The indication is that the matter is likely to be conducted in the first half of 2021.

5. Second, in his affidavit, the husband says this:[3]

   I am employed as professional of QQ Company and have been employed in this role since 7 July 2020. I earn an annual gross income of $230,000. 

   [3] Affidavit of the husband filed 10/11/2020, par 21.

6. Third, the wife has sold one of the properties which she brought into the marriage and retained as a result of the final orders.

The Law

1. Rule 22.11 of the Family Law Rules 2004 (Cth) is directed to stays. Stays are not granted lightly or as a matter of course. In this matter there has been a stay granted for five months in circumstances where the husband was unemployed and COVID-19 health restrictions made re-employment uncertain. The parties were able to obtain some relief in respect of the mortgage on the former family home in New Zealand during that period although not all that the wife had hoped for.

2. The husband is now employed on comfortable terms. Senior counsel submitted that although that was the case, the husband did not have $300,000 in clear funds.  He holds certain properties with a net equity said to be about $500,000.

3. The Court raised the prospect of a short term loan, interest only, which might be taken by the husband in order to raise the funds for the payment to the wife. By making that payment to the wife the husband would be released from his obligation to make mortgage repayments (together with the wife) on the subject property in New Zealand.

4. Senior counsel was holding instructions to consent to such an order but only if both parties were directed to borrow the funds or at least both be obliged to make the repayments.

5. Unsurprisingly, the wife rejected that proposal. Her obligation to meet the whole of the mortgage arises once the payment is made to her by the husband and the husband’s interest in the property is transferred to her.

Other considerations

1. Refusing this application for a stay would not render the appeal nugatory. If the husband was successful in his appeal and funds were required to be paid back to him by the wife, there are properties owned by the wife and proceeds of sale of one property, against which debt could be enforced.

The benefit of the judgment

1. It is now nine months since the final orders were made, 16 months since the trial.  The wife quite reasonably consented to the first stay as set out above. She is now entitled to receive the funds, reduce debt and take over the mortgage on the former family home in New Zealand in which she lives.

Hardship

1. The wife has not been in the paid workforce for more than five years. She owns other properties, one of which has recently been sold. She is not without resources. There is some hardship involved for her in being held back from renegotiating the terms of a loan on the New Zealand property.

2. For all these reasons I do not consider that a further stay should be granted and the application of the husband is therefore dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 November 2020.

Associate: 

Date:  27 November 2020