Anderson & Senior (Stay Appeal) - [2013] FamCAFC 152

FAMILY COURT OF AUSTRALIA

ANDERSON & SENIOR (STAY APPEAL)

[2013] FamCAFC 152

FAMILY LAW – APPEAL – Appeal against a refusal by a single judge to stay orders of another single judge pending the hearing of an application to the High Court for special leave to appeal a decision of a Full Court dismissing an appeal against the orders of the original single judge – The primary judge incorrectly stated the legislative provision giving him power to determine the matter but his power was not challenged at first instance or on this appeal – Discussion of the power of a single judge to stay the operation of orders that have survived challenge on appeal – Discussion of the test to be applied when determining a stay application pending the hearing of an application for special leave – The primary judge found there was no basis upon which to grant a stay – Although the primary judge did not fully address the question of the proposed appeal being rendered nugatory, he was right to conclude that it was unlikely the husband would be given special leave to appeal – Balance of convenience favours the wife – No merit in this complaint – Appeal dismissed.

FAMILY LAW – APPEAL – Appeal against an order of a single judge varying a property settlement order made by another single judge – Although the meaning of the earlier order was sufficiently clear, the variation was consistent with the original order and was designed to resolve controversy about its meaning – No merit in this complaint – Appeal dismissed.

Family Law Act 1975 (Cth) ss 94AAA, 94
Family Law Amendment Act 2000 (Cth)
Federal Court of Australia Act 1976 (Cth) s 25(2)(d)
Judiciary Act 1903 (Cth) s 35A

Family Law Rules 2004

Aldridge & Keaton(Stay appeal) [2009] FamCAFC 106
Commissioner of Taxation v Multiflex Pty Ltd (2011) 82 ATR 724
De Lewinski v Department of Community Services (1996) FLC 92-678
Fauna Holdings Pty Ltd and McGillivray v Mitchell (2000) FLC 93-024
Gronow v Gronow (1979) 144 CLR 513
Gull & Gull (Stay Application) [2009] FamCAFC 104
Halsbury & Halsbury [2009] FamCAFC 142
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681
Molier and Van Wyk (No 2) (1981) FLC 91-001
Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452
Rinehart v Welker (2012) 285 ALR 191
Stephens and Stephens (Stay Application) (2010) FLC 93-429
Sullivan & Tyler (No 2) [2013] FamCAFC 136
Tate and Tate (No 4) (2003) FLC 93-139
Trade Practices Commission v Manfal Pty Limited (1990) 27 FCR 284
W & DOCS [2006] FamCA 731

APPELLANT:

Mr Anderson

RESPONDENT:

Ms Senior

FILE NUMBER:

MLC

9546

2008

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

4 October 2013

PLACE DELIVERED:

Perth

PLACE HEARD:

Brisbane (by video link from Melbourne)

JUDGMENT OF:

Thackray, Ainslie-Wallace and Murphy JJ

HEARING DATE:

19…

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.

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Details

Case: [2013] FamCAFC 152
Decision Date

CaseChat Overview and Summary

The appeal in this case, Anderson v Senior, was brought by Mr Anderson against orders made by Cronin J. The appeal was twofold, addressing the dismissal of an application for a stay of certain property orders and an order clarifying the original property settlement orders. The appeal was opposed by Ms Senior. The appeal related to a property dispute between the parties, involving two properties in Melbourne, and had a history of litigation in the Family Court of Australia.

The first issue addressed in the appeal concerned the dismissal of Mr Anderson's application for a stay of property orders made by Young J in 2012. The stay was sought pending the hearing of Mr Anderson's application for special leave to appeal to the High Court against a decision of a Full Court dismissing his appeal against Young J's orders. The second issue concerned an order made by Cronin J that purported to clarify Young J's orders, with Mr Anderson claiming that Young J's orders provided for the wife to receive 40% of the proceeds of sale of one asset, rather than 40% of the entire asset pool.

The court found that Cronin J had the power to hear the application for a stay, despite incorrectly stating the legislative provision giving him that power. The court further found that Mr Anderson's appeal against the dismissal of the stay application did not require leave, as the order did not finally dispose of the parties' rights. In relation to the variation of Young J's orders, the court held that leave to appeal was not required as the orders Cronin J made were not machinery provisions but rather orders finally disposing of rights in a way inconsistent with the original orders.

The court concluded that the appeal against the order of Cronin J dismissing the application for a stay would be dismissed, as the husband's proposed appeal to the High Court was unlikely to be successful, and the balance of convenience favored the wife. In relation to the variation of Young J's orders, the court found that Cronin J's orders were consistent with the original orders and designed to resolve controversy about their meaning. Therefore, the appeal in this aspect was also dismissed.

In summary, the appeal in Anderson v Senior was dismissed in its entirety. Mr Anderson was ordered to pay Ms Senior's costs of and incidental to the appeal, as agreed or assessed if not agreed.

Orders