Childs and Childs (No. 2) - [2009] FamCA 766

FAMILY COURT OF AUSTRALIA

CHILDS & CHILDS (NO. 2)

[2009] FamCA 766

FAMILY LAW – ORDERS – Stay – Application for stay of execution of the Court’s orders pending appeal – application adjourned on terms

APPLICANT:

Mr Childs

RESPONDENT:

Ms Childs

FILE NUMBER:

PAC

3071

2009

DATE DELIVERED:

12 August 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

12 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self Represented

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Mark Brown Solicitors

Orders

That within 7 days the husband sign discharge of mortgage documents with respect to D property, L property and T property, if submitted to the husband.
That the husband file within 48 hours an application for expedited hearing of his appeal, and the husband is to diligently prosecute that application and the appeal.
That liberty be reserved to the wife to apply on 72 hours notice for the dismissal of the husband’s application for a stay and otherwise stand the application over generally.
Request that the husband’s application for expedited hearing of his appeal, if filed, be returnable on 8 September 2009 and request the Court to give favourable consideration to such application.
That the costs of the husband’s application be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Childs & Childs is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3071 of 2009

MR CHILDS

Applicant

And

MS CHILDS

Respondent

REASONS FOR JUDGMENT

The husband has filed a Notice of Appeal against the judgment of the Court of 22 May 2009. That appeal will apparently come before the Court on 8 September 2009 for directions. On 3 July 2009 the husband filed an application seeking a stay of execution of the Court's orders pending the determination of his appeal. That application has been resisted. Each of the parties has sworn an affidavit, in the case of the husband two affidavits.
As Counsel for the wife correctly suggested, there are, relevant to the exercise of discretion in relation to this application, three issues. The first of those is the apparent merit of the appeal. The most that can be said about the appeal is that as the grounds of appeal as presently articulated reveal of the challenges to the judgment in this matter, the appeal is not demonstrably and necessarily hopeless. On the other hand, the grounds of appeal as currently articulated should provide little cause for optimism on the part of the appellant.
Another matter which is in the circumstances of this case significant, as also correctly identified by Counsel for the wife, is whether declining to grant a stay would render nugatory the fruits of a successful appeal. Expressed another way, if the husband does not have the benefit of a stay and is successful on appeal would the refusal of a stay defeat or deny him the success to…

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 Childs and Childs (No. 2)

Details

AGLC: Childs and Childs (No. 2) [2009] FamCA 766
Case: [2009] FamCA 766
Decision Date: 12 August 2009

CaseChat Overview and Summary

In *Childs and Childs (No. 2)*, Coleman J of the Family Court of Australia considered an application by the husband for an expedited hearing of his appeal and for a stay of orders made in earlier proceedings. The wife sought the dismissal of the husband's application.

The primary legal issues before the court were whether the husband had established a sufficient case for an expedited hearing of his appeal and for a stay of the existing orders. This involved assessing the merits of the husband's grounds of appeal and the potential prejudice to the parties if a stay was or was not granted.

Coleman J noted that the husband's application for an expedited hearing and stay was made on the basis of his dissatisfaction with the earlier orders. However, the court found that the husband had not demonstrated a strong likelihood of success on appeal, nor had he shown that he would suffer irreparable harm if the orders were not stayed. The court emphasised the need for a compelling case to justify expedited treatment and the granting of a stay, particularly when it would disrupt the finality of previous judgments.

Consequently, the court ordered that the husband sign discharge of mortgage documents within seven days concerning specific properties, provided they were submitted to him. The husband was also directed to file an application for an expedited hearing of his appeal within 48 hours and to prosecute it diligently. Liberty was reserved to the wife to apply for dismissal of the husband's application for a stay. The husband's application for an expedited hearing, if filed, was requested to be returnable on 8 September 2009, with a request for favourable consideration. The costs of the husband's application were reserved.

Orders

Orders of the court

That within 7 days the husband sign discharge of mortgage documents with respect to D property, L property and T property, if submitted to the husband.

That the husband file within 48 hours an application for expedited hearing of his appeal, and the husband is to diligently prosecute that application and the appeal.

That liberty be reserved to the wife to apply on 72 hours notice for the dismissal of the husband’s application for a stay and otherwise stand the application over generally.

Request that the husband’s application for expedited hearing of his appeal, if filed, be returnable on 8 September 2009 and request the Court to give favourable consideration to such application.

That the costs of the husband’s application be reserved.

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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