BULLER & MARTIN - [2016] FamCA 434

FAMILY COURT OF AUSTRALIA

BULLER & MARTIN

[2016] FamCA 434

FAMILY LAW – PRACTICE AND PROCEDURE – Application for a Stay of the Order – Application Dismissed

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Jackson & Balen [2009] FamCAFC 131
Trahn& Long (No. 2) [2008] FamCAFC 194

APPLICANT:

Mr Buller

RESPONDENT:

Ms Martin

FILE NUMBER:

BRC

8647

2014

DATE DELIVERED:

30 May 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

23 May 2016

REPRESENTATION

APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Turnbull, Fox Taylor Mildwaters

Orders

IT IS ORDERED THAT

The Application in a Case filed 16 May 2016 for a stay of the operation of the Order made by Hogan J on 18 March 2016 is dismissed.
The costs of and incidental to the Application in a Case filed 16 May 2016 are reserved to the trial Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Buller & Martin 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 BRISBANE

FILE NUMBER: BRC 8647 of 2014

Mr Buller

Applicant

And

Ms Martin

Respondent

REASONS FOR JUDGMENT

On 18 March 2016, I made orders for the sale of property in which Mr Buller, the current Applicant for a stay of the operation pending the hearing and determination of his appeal against those Orders, lives – the property being situated at I Street, J Town.
Reasons for Judgment were published that day.
On 15 April 2016, Mr Buller filed a Notice of Appeal in relation to those interim Orders for sale.
Mr Buller sought, by way of the orders sought in the Notice of Appeal that the property matters be decided at trial and not before the parenting matters; that he be permitted to live in the property; that the mother or her agent be excluded from the premises or attending on the premises without his consent; that the children be allowed to return to the home and spend no less than three nights with him there; and that the Respondent to this Application, Ms Martin, be restrained from bringing further applications in relation to the property at I Street until trial.
Mr Buller also sought orders that the published Reasons for Judgment be amended to remove what were termed “any erroneous statements”.
The Notice of Appeal contains a number of grounds of appeal to which I will revert and refer in a moment.
On 16 May 2016, Mr Buller filed an Application in a Case seeking a stay of the operation of the Orders made 18 March 2016 pending determination of the appeal.
The matter came before me last week and, for reasons which will be apparent from reference to the transcript of the proceedings that day, was initially adjourned for judgment till 4.30 last Friday, 27 May 2016 at 4.30 pm. During the course of…

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 BULLER & MARTIN

Details

AGLC: BULLER & MARTIN [2016] FamCA 434
Case: [2016] FamCA 434
Decision Date: 30 May 2016

CaseChat Overview and Summary

The parties involved were Buller and Martin. The dispute concerned an application for a stay of an order previously made by Hogan J on 18 March 2016. The application for the stay was heard by Hogan J.

The legal issue before the court was whether the operation of the order made on 18 March 2016 should be stayed pending further proceedings.

Hogan J dismissed the application for a stay. The reasons for this dismissal are not detailed in the provided text, but the outcome indicates that the applicant failed to satisfy the court that a stay was warranted. The court reserved the costs of and incidental to the application for a stay to the trial Judge.

Orders

Orders of the court

IT IS ORDERED THAT

The Application in a Case filed 16 May 2016 for a stay of the operation of the Order made by Hogan J on 18 March 2016 is dismissed.

The costs of and incidental to the Application in a Case filed 16 May 2016 are reserved to the trial Judge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.