Bain and Bain (deceased)

[2016] FamCA 694

FAMILY COURT OF AUSTRALIA

BAIN & BAIN (DECEASED) [2016] FamCA 694

FAMILY LAW – PRACTICE & PROCEDURE – STAY – where the applicant seeks a stay of orders pending the hearing and finalisation of an appeal – where the appeal would be rendered nugatory if the stay was not granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Bain

RESPONDENT: Ms Little and Ms Searle, the Personal Representatives for Ms Bain (Deceased)

FILE NUMBER: BRC 2481 of 2010

DATE DELIVERED: 19 August 2016 orally; settled Reasons provided to the parties on 23 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 9 August 2016, By way of written submissions on 17 and 18 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Hopgood.Ganim

SOLICITOR FOR THE RESPONDENT: Blair Anderson Solicitor

Orders

IT IS ORDERED THAT

1. Pending the finalisation by the Full Court of the Family Court of Australia of the appeal against the Order made pursuant to s 112AP(4) on 9 August 2016 the operation of that Order is stayed.

2. The applicant has leave to provide a copy of the Notice of Appeal filed 9 August 2016 to the Legal Services Commission Queensland and the Queensland Law Society.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2481 of 2010

Mr Bain

Applicant

And

Ms Little and Ms Searle, the Personal Representatives for Ms Bain (Deceased) 

Respondent

REASONS FOR JUDGMENT

1. On 9 August 2016, I made orders that, by way of punishment pursuant to s 112AP(4) of the Family Law Act 1975 (Cth), the Respondent, Mr Bain, be sentenced to serve a term of imprisonment for a period of six months with such term to commence from 4.00 pm on 30 August 2016. Consequential orders were made, including an order that, in order to give effect to the order for imprisonment, a Warrant of Commitment issue but lie in the Registry until 4.00pm on 30 August 2016.

2. On 9 August, pursuant to leave that was granted, Mr Richardson SC on behalf of Mr Bain sought and was granted leave to file an Application in a Case seeking that an order be made staying the operation of the orders I have made pending determination by the Full Court of the appeal in respect of those orders.

3. A Notice of Appeal in the form in which it was anticipated it would be filed is attached and exhibited to the affidavit of Mr Bain, also filed by leave on 9 August 2016. As I understand it, the Notice of Appeal has now been filed. Reference to Mr Bain’s affidavit makes clear that he said he would proceed with the appeal as expeditiously as possible and intended to file an Application for expedition of the hearing of the appeal. As I understand it, the Application for expedition has in fact been filed.

4. The respondent to the Application for a stay (the Applicant in the substantive proceedings) does not oppose the making of an order staying the operation of the orders pending appeal. It is conceded, in a sense, that, given the reality that a failure to stay the operation of the orders would - in the event that Mr Bain’s appeal is successful - render nugatory that event, because it would be highly likely that, by the time his appeal is heard, he would, in fact, have either completely served the sentence of imprisonment which I ordered he serve, or at least would have commenced the same.

5. There is no contest in relation to the principles applicable in considering an application for a stay - they are well known and helpfully summarised thoroughly in the Case Outline document provided to the Court by Mr Richardson on behalf of Mr Bain.

6. Given the acknowledgement that a stay is warranted, it is unnecessary to traverse the principles that are applicable. I am satisfied that the circumstances are such in this case that it is appropriate that I make an order staying the operation of the Orders I made on 9 August pending the Full Court’s determination of Mr Bain’s appeal. In exercising the discretion available to me, I have placed particular weight upon the aspect that, in the event the stay is not granted, Mr Bain’s appeal will, as I have said, be rendered nugatory.

7. It was not sought by Mr Bain - if that could be stayed – to stay the operation of the direction I made: that a Registrar of the Court forward a copy of the Reasons for Judgment delivered on 25 May as settled and delivered to the parties on 26 July and the settled Reasons for Judgment delivered orally on 9 August to both the Legal Services Commission of Queensland and the Queensland Law Society. I do not intend to stay the operation of that direction.

8. Mr Richardson SC, however, sought on behalf of Mr Bain, that Mr Bain be permitted to provide to those entities and organisations a copy of the Notice of Appeal. I think that is completely appropriate. I will make an order that Mr Bain have leave to provide a copy of the Notice of Appeal filed in respect of the order made 9 August 2016 to the Legal Services Commission of Queensland and the Queensland Law Society.

9. Whilst the respondent to the Application for a stay acknowledged that the making of the orders staying the operation of the order I made on 9 August of this year was warranted, a number of additional matters were raised in the written submission filed by them pursuant to orders I made to facilitate the hearing and disposal of this Application.

10. In summary, two things are sought. One, that an order be made as part of the terms of the making of an order staying the operation of the orders made 9 August 2016 that Mr Bain deposit each and every passport held by him with a Registrar of the Court pending the determination of the appeal and that his name be placed on a watch list at points of departure from Australia.

11. In written submissions in reply, such order is opposed by Mr Richardson on behalf of Mr Bain. It is submitted by Mr Richardson that there is no basis upon which Mr Bain should be regarded as a flight risk.

12. There is no evidence upon which I could make any finding in relation to the issue of whether Mr Bain is, in fact, a flight risk. The evidence that is available is that he has a practice based in Brisbane, his children live in Australia, and he had attended at the proceedings at each of the stages of the hearing of the Application for Contempt. I accept the submissions made by Mr Richardson in writing that there is no evidence pointed to by the Respondent to suggest that Mr Bain has any association with, or attraction to, any place other than Australia or that there is any reason or any basis upon which a finding could be made that he is a flight risk so as to necessitate and/or justify the making of an order in relation to the forfeiture and holding of his passport and the placing of his name on a watch list.

13. For those reasons then, I decline to make orders that Mr Bain provide his passports to a Registrar of this Court. I am similarly decline to make, an order that his name be placed on the watch list at points of departure from Australia.

14. The second substantive matter raised by the respondents to the Application for a stay is, in essence, an application for security for costs in relation to the appeal and/or a litigation funding order.

15. I accept and agree with the submissions made by Mr Richardson that, if there is to be any application for an order for security for costs of the appeal, such application should be properly be brought before the Full Court.

16. In addition, there is no evidence before me upon which to base any findings that would need to be made in order for the respondents to the application for a stay to substantiate the order sought.

17. For those short reasons, I decline to make an order either by way of security for costs or by way of litigation funding order.

18. The orders that will be made therefore for these reasons short reasons delivered orally are as follows:

    a)pending finalisation by the Full Court of the appeal by Mr Bain against the order made 9 august 2016, the operation of clauses 1-4 of the order made 9 August 2016 are stayed.

    b)I direct that a copy of the order and a copy of the reasons once settled be provided to the parties.

19. The order will also include the order I have outlined that I intended to make: namely, permitting Mr Bain leave to provide to the Legal Services Commission of Queensland and the Queensland Law Society a copy of the Notice of Appeal filed in this matter.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 August 2016.

Associate: 

Date:  23 August 2016.