Westmore and Westmore (No. 3)

[2007] FamCA 455

FAMILY COURT OF AUSTRALIA

WESTMORE & WESTMORE (NO. 3) [2007] FamCA 455

FAMILY LAW - PROPERTY SETTLEMENT - Final orders - Partial stay of orders pending appeal

APPLICANT: Mr Westmore

RESPONDENT: Mrs Westmore

FILE NUMBER: MLC 3616 of 2007

DATE DELIVERED: 9 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 9 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: The husband in person

COUNSEL FOR THE RESPONDENT: Mr Bradshaw

Orders

1. That pending the determination of the husband’s Appeal to the Full Court against orders made by me on 8 March 2007 (“the orders”) paragraph 3 shall be partially stayed and paragraph 4 shall be stayed so that:

   (a)The husband shall pay to the wife the sum of $500,000 (“the payment”) on or before 6 June 2007 (“the date”) and until the payment is paid in full, the husband shall be restrained from selling, transferring, or encumbering the property known as E (“[E]”) save to transfer it to the wife pursuant to paragraph 1(b) hereof;

   (b)In default of the husband making the payment by the date then the husband shall do all acts and things to transfer to the wife at the expense of the wife all of his right title and interest in E property and contemporaneously with the transfer the husband shall provide the wife with vacant possession of E property; and

   (c)In the event of the wife taking a transfer of E property pursuant to paragraph 1(b) hereof the wife shall be restrained from selling, transferring, or encumbering E property and shall pay all outgoings, rates and taxes in respect of it and maintain it in good condition pending further order of this court.

IT IS NOTED that for all publication and reporting purposes this case shall be known as WESTMORE & WESTMORE

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3616 of 2007

MR WESTMORE

Applicant

And

MR WESTMORE

Respondent

REASONS FOR JUDGMENT

1. I made final property orders in this case on 8 March 2007.  The husband has filed a notice of appeal.  Today I have his application filed 2 April 2007.  In it he seeks "to stay the orders made on 8 March 2007 instructing the husband to pay the wife's settlement moneys until the appeal is decided".  As in the hearing, the husband is representing himself. 

2. Following some discussion a little earlier today, the orders that I am ultimately making for a partial stay of one part of my orders and a stay of another part are made without opposition from either party.  Mr Bradshaw for the wife has very reasonably conceded a partial stay of the orders.  According to paragraph 3 of my orders, the husband is due to pay the wife the sum of $700,000 by 6 June 2007, well before the appeal is likely to be heard.  If the amount is paid in full, his appeal could be rendered nugatory.  If none of that amount is paid, that would be a gross injustice to the wife as even if the husband’s application were to succeed in every respect, he would still be required to pay the wife the sum of around $500,000 in settlement.  Mr Bradshaw for the wife set out how he arrived at that calculation.  The approach and his arithmetic are agreed by the husband.  In fact it is rounded down a little in the husband’s favour.

3. There is a consensus that I should grant a partial stay of my orders of 8 March 2007 as to $200,000 of the payment that the husband must make to the wife. 

4. My orders were structured so that the husband had the opportunity to pay out the wife $700,000 and to retain the property at E (valued by the parties at $700,000).  If he could not meet the payment in full, the property was to be transferred to the wife.  Mr Bradshaw seeks orders that if the husband does not pay the $500,000 owing by the due date, the property should still be transferred to the wife.  That is, there should not be a stay of that part of my order pending the appeal.  However, the parties agree, properly in my view, that the orders should be adjusted to ensure that pending the appeal the wife does not encumber, sell or diminish the value of the property.  That is because in the event that the husband fully succeeds on appeal, there would need to be an adjustment of some $200,000 in his favour either by payment or sale of the property, an order that would require attention by the Full Court or a judge if it is returned to the trial division. 

5. It is on those bases that I have structured the orders so that there is a partial stay pending the appeal.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  9 May 2007