Bele & Vaughan - [2011] FamCA 724

FAMILY COURT OF AUSTRALIA

BELE & VAUGHAN

[2011] FamCA 724

FAMILY LAW – Stay application; application dismissed

Family Law Act 1975 (Cth)

Cellante and Ors v G Callis Industries Pty Limited [1991] 2 VR 653
Kelly and Kelly (1981) FLC 91-007
Maher and Anor v Commonwealth Bank of Australia and Anor [2008] VSCA 122
Scarborough v Lews Junction Stores Pty Limited [1963] VR 129
Stephens and Stephens (Stay Application) (2010) FamCAFC 20

APPLICANT:

Ms Bele

RESPONDENT:

Mr Vaughan

FILE NUMBER:

MLC

9056

2009

DATE DELIVERED:

13 September 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hawkshaw

SOLICITOR FOR THE APPLICANT:

No 1

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

That the application in a case filed 1 September 2011 and the response filed 8 September 2011 are both dismissed save as to any issue of costs.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 30 September 2011 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 14 October 2011 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Bele & Vaughan 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 MELBOURNE

FILE NUMBER: MLC 9056 of 2009

Ms Bele

Applicant

And

Mr Vaughan

Respondent

REASONS FOR JUDGMENT

Ms Bele to whom I shall refer as the applicant filed an application in a case on 1 September 2011. No indication of legal representation appeared in that document although when it was heard on 9 September 2011, Ms Bele was represented by counsel.
The application sought a stay of the order I made on 9 June 2011 until the Full Court appeal. It further sought that the application filed 7 October 2009 which is currently listed before Le Poer Trench J on 8 December 2011 (as a result of an order made on 4 July 2011 by Registrar Mestrovic) be stayed until the determination of the appeal by the Full Court. She also sought an order that the costs application by Mr Vaughan (“the respondent”) arising out of my June order be stayed until the determination by the Full Court.
The background to the appeal and this application is straight-forward. On 9 June 2011, after a contested hearing in which the applicant was represented by senior counsel, I made a declaration under s 90RD of the Family Law Act 1975 (Cth) (“the Act”) determining that the Court had jurisdiction…

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 Bele & Vaughan

Details

AGLC: Bele & Vaughan [2011] FamCA 724
Case: [2011] FamCA 724
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Bele (the applicant) sought a stay of orders made by Justice Cronin on 9 June 2011, and further orders to stay proceedings listed before Justice Le Poer Trench in December 2011, pending the determination of an appeal to the Full Court. The applicant also sought to stay a costs application made by Mr Vaughan (the respondent) arising from the June order. The application for a stay was heard on 9 September 2011.

The primary legal issue before the court was whether the applicant had demonstrated sufficient grounds to justify a stay of the existing orders and proceedings. This involved determining the applicable legal principles for granting a stay, particularly whether "special circumstances" were required, and assessing whether the applicant's arguments regarding jurisdictional issues and potential prejudice met this threshold. The court was also required to consider the presumption that a successful party is entitled to the benefit of a judgment and the onus placed on the applicant to displace this presumption.

Justice Cronin applied the principles established in cases such as *Kelly and Kelly* and *Maher v Commonwealth Bank of Australia*, which indicate that a stay is not granted as a matter of course and typically requires the applicant to show special or exceptional circumstances. The court found that the applicant had not demonstrated such circumstances. Specifically, the court was not satisfied that the appeal would be rendered nugatory, noting that any prejudice could potentially be addressed by an adjournment application to the trial judge or by orders relating to costs or evidence admissibility. The court also found no merit in the applicant's jurisdictional argument based on a "geographical requirement," noting that this issue was not raised at trial by senior counsel and that courts generally have jurisdiction to determine their own jurisdiction. Consequently, the court concluded that the respondent was entitled to the benefit of the judgment and that there was no significant prejudice to the applicant that would warrant a stay.

The application for a stay was dismissed, save for any issue of costs. The parties were to make written submissions regarding costs by 30 September 2011, with responses due by 14 October 2011, and any costs applications were to be determined in chambers.

Orders