Father Seeks Stay on Final Orders Pending Appeal in Property Dispute with Mother
Self & Bachman (No 4) [2022] FedCFamC1F 962 (24 November 2022)
The Respondent Father filed an Amended Notice of Appeal and an Application in a Proceeding, seeking a stay of three final orders. These orders are related to the father's payment of $145,117 to the Applicant Mother within 30 days, a declaration that loans owing by the mother to the father are discharged, and a standard declaration that the parties are the legal and beneficial owners of assets and liabilities in their possession and control, apart from the property adjustment orders.
Facts:
The Respondent Father, who is involved in a legal proceeding, has taken steps to appeal three of the final orders that have been made in the case. Specifically, he has filed an Amended Notice of Appeal as well as an Application in the Proceeding, with the goal of obtaining a stay on the following three orders: Order 19, which requires the father to pay the Applicant Mother a sum of $145,117 within 30 days of October 28, 2022. Order 20, which is a declaration that any loans that the mother owes to the father are no longer valid and have been discharged. This declaration is the result of the Court's exercise of discretion to set off amounts owed by the mother to the father, against the Court's decision to make a property adjustment order in favor of the mother.
This set off resulted in a balance owing by the father of $145,117. Order 21, which is a standard declaration that the parties are the legal and beneficial owners of assets and liabilities that are currently in their possession and control, with the exception of the property adjustment orders that have been made. The father's goal in appealing these orders and seeking a stay is to have them reviewed and potentially overturned.
Issue:
The issue in this case is related to financial and property matters between the Respondent Father and the Applicant Mother. The Respondent Father is appealing three final orders related to financial and property matters with the Applicant Mother, including payment of $145,117, discharged loans and legal and beneficial ownership of assets and liabilities.
Applicable law:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 - where it was held that the applicant bears burden to prove proper basis, factors such as balance of convenience, appeal strength, impact on children living arrangement, timing of appeal are considered.
Analysis:
The grounds for appeal in this case are difficult to understand, and even if successful, would not result in the original court orders being overturned. The father is not arguing that his appeal would be pointless without a stay, but that he would suffer financial prejudice if he had to sell shares to pay the wife the required $145,117 and accrue a capital gains liability of $16,555. He argues that the mother has enough resources and doesn't need the money during the appeal. The wife opposes the stay but have not pointed out any irreparable harm that would come if the stay is granted on the father's undertaking.
Conclusion:
Orders 19, 20, and 21 from court proceeding SYC2566/2016 are stayed until the appeal is resolved. This is only allowed if the father involved in the case agrees to be held financially responsible for paying interest on the orders, as outlined in the Family Law Act 1975 and the Federal Circuit and Family Court of Australia Rules 2021, if the orders are not overturned on appeal.
Case: Self & Bachman (No 4) [2022] FedCFamC1F 962
Judgment of: HARPER J
Counsels:
Solicitor for the Applicant: Adam Jones Solicitor
The Respondent: Litigant in person
The Independent Children's Lawyer: No appearance required