ADAMI & ADAMI (No.2) - [2015] FCCA 1365

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMI & ADAMI (No.2)

[2015] FCCA 1365

Catchwords:

FAMILY LAW – Stay application – applicable principles – where Appeal may be rendered nugatory if a stay is not granted – stay application dismissed.

Legislation:

Family Law Act 1975, ss.60CA, 60H

Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106
Trahn & Long(No.2) [2008] FamCAFC 194
Grange & Gardiner [2011] FMCAfam 1313

Applicant:

MR ADAMI

Respondent:

MS ADAMI

File Number:

PAC 1110 of 2015

Judgment of:

Judge Harman

Hearing date:

15 May 2015

Date of Last Submission:

15 May 2015

Delivered at:

Parramatta

Delivered on:

15 May 2015

REPRESENTATION

Counsel for the Applicant:

Ms Obradovic

Solicitors for the Applicant:

Bennelong Legal

Counsel for the Respondent:

Mr Cummings S.C

Solicitors for the Respondent:

York Law Family Law Specialists

ORDERS

The Application in a Case filed 6 May 2015 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Adami & Adami (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 1110 of 2015

MR ADAMI

Applicant

And

MS ADAMI

Respondent

REASONS FOR JUDGMENT

These proceedings come before the Court today with respect to an Application in a Case filed 6 May 2015.
The parties to the proceedings are Ms Adami, who is, for today’s purposes, the Applicant in her plea for interim or interlocutory relief, and Mr Adami, the Respondent thereto.
In the substantive proceedings to which the Application in a Case relates, the parties are reversed, Mr Adami being the Applicant for substantive relief.
The Application in a Case seeks a number of Orders. That which is pressed today is, in essence, an Application for a stay upon terms and conditions, together with an Order for costs. That is resisted by Mr Adami.
The Application in a Case arises following the filing of an Appeal and an Application in an Appeal. I am advised and accept that the Application in an Appeal seeks expedition of the Appeal. Both applications were filed 6 May 2015. The Orders which are appealed are Orders which were made in a duty list on 4 May 2015.
The reasons for primary judgment were delivered on an ex tempore basis on 4 May 2015. A settled version of those reasons, as required for the Appeal has been provided to the parties, although only this morning. I do, in my defence, observe that the reasons were ordered following advice to Chambers of the Appeal having being lodged. The transcript of reasons was provided some short time thereafter on 11 May and the reasons settled during the conduct of the Court’s business this week spread across attendance upon two Registries. Thus, to the extent that I extend my apologies to the parties that they have not had the reasons earlier, they have, in effect, been settled and produced in the space of some days.

Material considered in dealing with the application today

I have read and considered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ADAMI & ADAMI (No.2)

Details

AGLC: ADAMI & ADAMI (No.2) [2015] FCCA 1365
Case: [2015] FCCA 1365
Decision Date: 15 May 2015

CaseChat Overview and Summary

In the matter of *Adami & Adami (No.2)*, Judge Harman of the Family Court of Australia considered an application for a stay. The application was brought by one of the parties in proceedings concerning family law matters.

The central legal issue before the Court was whether a stay of proceedings should be granted. This required the Court to consider the principles applicable to stay applications, particularly in circumstances where the appeal may be rendered nugatory if a stay were not granted.

Judge Harman dismissed the application, finding that the threshold for granting a stay, especially where an appeal might be rendered nugatory, was not met in this instance. The Court applied the established legal principles governing such applications, weighing the potential prejudice to the parties and the overall administration of justice.

Consequently, the Application in a Case filed on 6 May 2015 was dismissed.

Orders

Orders of the court

The Application in a Case filed 6 May 2015 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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