WARD & PAINTER-WARD - [2012] FMCAfam 430

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WARD & PAINTER-WARD

[2012] FMCAfam 430

FAMILY LAW – Application for stay pending appeal to Family Court – final property orders – general principles considered – orders made – otherwise stay refused.

Aldridge v Keaton (Stay Appeal) [2009] famCAFC 106

Applicant:

MR WARD

Respondent:

MS PAINTER-WARD

File Number:

MLC 2470 of 2011

Judgment of:

Hartnett FM

Hearing date:

8 May 2012

Delivered at:

Melbourne

Delivered on:

8 May 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Potter

Solicitors for the Respondent:

Lewis Holdway Lawyers

THE COURT ORDERS THAT:

The time for auction to occur with regards to the sale of Property O in the State of Queensland (‘the property’) as provided for in order 2 of the orders made 20 March 2012 be extended to a date on or before 9 July 2012.
The husband comply with order 3(e) of the orders made 30 March 2012 by 29 May 2012 and if he fails to do so then there is liberty to the wife to apply at short notice for the husband to vacate the property.
A stay of the order that the husband be required to transfer his right, title and interest in the (name omitted) to the wife pending an outcome of the husband’s appeal.
The wife be, until the conclusion of the husband’s appeal, restrained from dealing with in any way her superannuation entitlements now remaining with (name omitted) Superannuation Fund.
Otherwise the husband’s application dated 27 April 2012 is dismissed.
The wife’s response filed 4 May 2012 is otherwise adjourned to a date to be fixed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2470 of 2011

MR WARD

Applicant

And

MS PAINTER-WARD

Respondent

REASONS FOR JUDGMENT

These are proceedings in which the applicant appellant husband seeks an order for a stay of the orders made by this Court on 30 March 2012 pursuant to the judgment reported as Painter-Ward & Ward [2012] FMCAfam 245.
The application in a case filed by the husband was filed on 30 April 2012. He seeks the following orders:
“1) A stay on the Order that the Appellant be required to lodge his outstanding taxation returns within 90 days pending the outcome of the Appellant’s Appeal
2) A Stay of Execution on the Order for the property at Property O to be auctioned in two months pending the outcome of the Appellant’s Appeal.
3) A Stay on the Order that 80% of the balance of proceeds from the sale of the property at Property A be released to the Respondent pending the outcome of the Appellant’s Appeal.
4) A Stay on the Order that the Appellant be required to Transfer his right, title, and interest in the (name omitted) to the Respondent pending the outcome of the Appellant’s Appeal.
5) A Stay on the Order that the Respondent be permitted to retain 100% of her interest in her Superannuation pending the outcome of the Appellant’s Appeal
6) A Stay on the Order that the parties each retain sole responsibility for all credit card debts held in their personal names pending the outcome of the Appellant’s Appeal.
7) A Stay on the Order allowing for the Respondent to Apply for Costs against the Appellant pending the outcome of the Appellant’s Appeal.”
In support of the stay application, the applicant husband relies upon an affidavit filed by him on 30 April 2012.
The respondent wife filed a response to an application in a case on 4 May 2012 and served that document on the evening of the same date. That response sought the following orders:
“1) That the Application in the case be dismissed.
2) That the Applicant vacate the property located at Property O, within 14 days.
3) Prior to or at the time of vacating Property O the Applicant shall ensure that all his chattels are removed from the property and the property is left in a neat and clean state.
4) That the time for conducting the auction of Property O in the orders of 30 March 2012 be extended to be as soon as can be facilitated by the Real Estate Agent appointed by the Respondent having regard to cleaning up Property O following the Applicant vacating Property O.
5) From the monies that the Applicant is to receive from the sale of Property O and the real property situated at Property A, Victoria, any necessary reasonable costs preparing Property O for sale shall be deducted from the Applicant’s share of such monies.
6) That the Applicant pay the Respondent’s costs of and incidental to this Application.”
In support of those orders sought the respondent wife relies upon an affidavit sworn by her on 4 May 2012.

The Law

The granting of a stay is a discretionary matter, I shall thus consider the particular facts of this case as they apply to the law as to the general principles applicable to a stay pending appeal. In Aldridge v Keaton (Stay Appeal) [2009] famCAFC 106, the Full Court of the Family Court of Australia said:
“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; and
·    the best interests of the child the subject of the proceedings are a significant consideration.”
This application does not involve parenting orders made. The proceedings in relation to which final orders were made were property proceedings. The prospective time period in which this appeal can be determined was not put to me by either of the parties. However, the Court anticipates that the appeal might be heard in a three to six month period, with reasons for judgment to be thereafter delivered, such that, it would be this Court’s understanding the appeal hearing and reasons for judgment to follow would be in a period some six to nine months from this date.
In relation to the bona fides of the appeal, I note the husband’s objection to selling the property in Property O in Queensland in which he resides, appears not genuine. He himself concedes the need for both of the real properties held by the parties to be sold and he does not object to the sale of the wife’s current residence at Property A forthwith. He desires however, the proceeds of such sale to be held in trust or alternatively he has suggested that perhaps the wife could receive a sum of 50 percent of same, on the basis that he considered an apportionment to her of 80 percent to be excessive in all the circumstances.
He however did not indicate whether he would, in those circumstances, desire a payment to himself of 50 percent of the proceeds. The husband agrees that both real properties are required to be sold and accepts the evidence put before the Court by the wife that the National Australia Bank has now cancelled the line of credit of the Property O and Property A properties, being the properties in which the parties respectively reside. During the currency of the proceedings it became apparent that the parties were in, as I perceived it, dire financial straits. The wife was no longer able to fund repayments on the property in which she resided and the property in which the husband resided. The husband had made no contribution or no meaningful contribution since 2007 to the repayments of the loan secured over the properties.
At trial the husband wished to continue in occupation of the Property O property, but he did not put before the Court a proposal wherein he would pay the necessary expenses to enable him to do so. In paragraph 55 of my reasons for judgment, I said as follows:
“The husband has no capacity, on his own evidence, to retain the Property O property and meet its liabilities. The wife will not be released by the mortgagee and cannot be held in such a financial relationship with the husband. He has already caused her considerable financial loss.”
The order for sale of both properties was to allow an order advantageous to the parties with a sale to occur before the National Australia Bank acted to sell the properties without any further regard to the parties. The wife now deposes in her affidavit sworn 4 May 2012 at paragraph 6:
“In the event that we do not place these (properties) up for sale and auction, the National Australia Bank will issue writs and will seize the properties and will auction the properties themselves.”
The husband indicated to the Court this day that he needed a further “two or three or four weeks” to place the property in which he resides, in a proper marketable state. He accepts that it is not in that state presently, albeit that on 30 March 2012, and in order 3.e. of those orders, I ordered that the husband ensure that at all times the Property O property was to be kept in a marketable and presentable condition. He has failed to comply with that order and the property, according to the selling agents and partially conceded by the husband, is not in a marketable and presentable condition. The selling agent will not take prospective purchasers through the property in its current condition.
The wife has sought in her response filed this day to have the husband vacate the property within 14 days so that she can attend to arrangements to place it in a condition appropriate for sale. The orders which I make this day allow the husband a further three week period in which to have the property in a marketable condition and comply with the reasonable directions of the selling agents. In the event the husband does not do so, the wife has liberty to apply to seek the husband’s removal from the property so that it can be properly marketed and presented and funds realised. Such funds are essential to pay out the parties’ housing debts and to provide the parties with further much needed funds to apply to other debt.
It is necessary that the wife’s Property A property be sold forthwith to address the issue of non payment of arrears of the line of credit over both properties and it may well be, as submitted by counsel for the wife this day, that the National Australia Bank take the totality of the monies owing to them out of the sale proceeds of Property A. There will then be no money or little money available to the husband and wife to distribute according to my orders made 30 March 2012. There is a real hardship to the wife in not allowing that sale to proceed and an apportionment of the net proceeds in the percentage of 80 percent to the wife and 20 percent to the husband as ordered by me at trial.
That hardship is because, as indicated in my reasons, both the husband and wife have considerable debt in relation to which prohibitive interest amounts are accruing. The wife has a significant debt to the Australian Taxation Office of approximately $145,000. She is paying instalment payments pursuant to a scheme of arrangement of $1,000 approximately a month. She also has credit card debt which must be repaid and which is crippling. She also will be required to rehouse herself, at a time earlier than the husband, given that the Property A property is currently being marketed with a view to immediate sale.
I said in my reasons for judgment, in paragraph 54:
“The husband has shown no perspective in these proceedings. He has been harassing and obsessive and in so doing has been oppressive to the wife. The husband is not a witness of credit. At times, in particular in the examination of his own income and financial contribution since separation, he was an utter liar. By comparison the wife was a credible witness and in her demeanour entirely exhausted by the husband’s onslaught.”
That onslaught continues in the husband’s filing of an appeal and in the husband seeking a stay, for instance, in respect to the question of the payment of the wife’s costs. Order 13 of the orders made 30 March 2012 provided:
“There is liberty to the wife to apply with respect to the question of costs and the payment of her legal costs, in part or in their entirety by the husband.”
The wife is now making such application and the husband seeks to stay the hearing of that application pending his appeal. It is important that the application be heard and a determination made so that the husband if he wishes (as he has indicated he will and is his mindset generally) to appeal against any costs order, that such appeal is heard concurrently with the current matters as set out in his notice of appeal.
It will not be prejudicial to the wife to restrain her from dealing further with her superannuation entitlements pending the outcome of the husband’s appeal and she does not object to such restraint. Likewise there is no objection taken by the wife, and it does not produce hardship for her, for there to be a stay in respect of the orders which require the husband to transfer his right title and interest in the (name omitted) to the wife. I do note that such order was made by consent and that the husband now intends to appeal against the same.
The husband’s seeking orders with respect to the parties various credit card debts is not an application that I shall accede to. The parties have operated their own individual credit cards for many years now and have incurred various liabilities with respect thereto. The orders made at trial do not disturb each of the parties’ responsibility for their personally incurred debt post the separation.
The husband has not filed taxation returns for many years and did not do so when required so as to achieve a finalisation of matters between the parties. The Court required the husband within 90 days to lodge his taxation returns for the financial years ended 30 June 2006 to 30 June 2011. That is a matter the husband is required to do in accordance with the taxation laws of the Commonwealth of Australia. It is an obligation upon him which was pre-existing and remains outstanding. I do not propose to make any further orders or comments with respect thereto.
The husband in his affidavit in support of his application simply asserts that he has insufficient time to attend to those matters which he must, which are the completion of outstanding taxation returns and the preparation of his home for sale. Otherwise, he seeks to reagitate those matters in respect of which findings were made at trial with which he does not agree. It is difficult to see that he has an arguable case on appeal.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 22 May 2012