WODEN & SILVER

[2015] FamCA 65

FAMILY COURT OF AUSTRALIA

WODEN & SILVER [2015] FamCA 65

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where husband seeks a stay of spouse maintenance pending outcome of appeal – Where the husband submits that there are additional factors that should have been taken into account at the time the orders were made – Where the material in support of the Application for a stay of the order for spouse maintenance is insufficient – Whether appeal rendered nugatory – Where application is dismissed.

Family Law Act 1975 (Cth) s 72
Family Law Rules 2004 (Cth) r 22.11

APPLICANT: Mr Woden

RESPONDENT: Ms Silver

FILE NUMBER: WOC 367 of 2013

DATE DELIVERED: 12 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 12 February 2015

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Bailey

Orders

1. That the husband’s Application in a Case filed on 2 February 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Woden & Silver has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  WOC367 of 2013

Mr Woden

Applicant

And

Ms Silver

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. On 15 January 2015, following a contested interim hearing, I made orders pending further order which included provision that the husband pay to the wife spouse maintenance of $200 per week.  On an unknown date the husband filed a Notice of Appeal.  The husband’s appeal concerns only the order for interim spouse maintenance. 

2. On 2 February 2015 the husband filed an Application in a Case, whereby he sought “a stay … of Part 2 only dated 15^th January 2015, relating to spouse rebate”.  This Application was supported by an affidavit sworn by the husband on 2 February 2015, the body of which read “Refer to attached court order and notice of appeal lodged at the Court dated 28^th January 2015:  Attachments 1 & 2”.  These attachments were the interim orders of 15 January 2015 and the husband’s Notice of Appeal.  The husband adduced no other evidence in support of his Application for a Stay. 

Consideration

1. In the husband’s Notice of Appeal he stated in Part C:

   State briefly the facts relied on in support of the application for leave to appeal and which establish an error of principle or substantial injustice.

   1.In her decision dated 15/01/2015, the Justice Stevenson has relied upon two items of expenditure for which I have evidence to prove are incorrect.

   2.There are substantial additional costs which were not presented to the court at the time.

2. The “evidence” in relation to “two items of expenditure for which I have evidence to prove are incorrect” are not identified by the husband in any document filed in support of the present Application.  Obviously, the “substantial additional costs which were not presented to the court at the time” could not have been taken into account by me when I made my decision. 

3. Rule 22.11(1) provides as follows:

   (1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

4. Accordingly, the husband is not entitled to an automatic stay of Order 2 made on 15 January 2015.  A decision whether to grant a stay of that order involves an exercise of discretion. 

5. In my view, a refusal to grant a stay would not render a successful appeal nugatory as there are yet to be final orders for settlement of property between these parties.  Any necessary adjustment, in terms of interim spouse maintenance, can be taken into account in the context of a final hearing.

6. I found that the wife is unable to support herself adequately for the purposes of s 72 of the Family Law Act 1975 (Cth). I consider that she should not now be deprived of the fruits of her litigation in such circumstances.

7. With all due respect, the material presented to me in support of the Application for a stay of the order for spouse maintenance fails to convince me that the husband’s appeal has merit.  As noted, at least one of his proposed arguments is based on material which he failed to present at the interim hearing.  Further, the husband adduced no evidence as to the likely delay in the hearing of his appeal.

8. For all of these reasons, and in the exercise of my discretion, I dismiss the husband’s Application for a stay of Order 2 made on 15 January 2015.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 12 February 2015.

Associate: 

Date:  12 February 2014