CLAYTON & BANT - [2018] FamCA 736

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT

[2018] FamCA 736

FAMILY LAW – PRACTICE AND PROCEDURE – JURISDICTION – whether the Respondent should be heard on his application for a permanent stay of the property settlement proceedings commenced by the Applicant – whether the Respondent should be heard on his application for a permanent stay of the proceedings for spousal maintenance orders commenced by the Applicant – whether property settlement proceedings and proceedings for spouse maintenance commenced by the Applicant in Australia should be permanently stayed on the basis of the application of the principles of res judicata or cause of action estoppel given that Respondent obtained a decree of divorce in Dubai – whether decree obtained in Dubai should be recognised in Australia.

Family Law Act 1975 (Cth)

Fahmi and Fahmi (1995) FLC 92-637
Hadkinson v Hadkinson [1952] 2 All ER 569
Watson v Watson (2013) FLC 93-530

APPLICANT:

Ms Clayton

RESPONDENT:

Mr Bant

FILE NUMBER:

LEC

310

2013

DATE DELIVERED:

18 September 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

3 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC, with him, Ms McDiarmid and Mr Carter

SOLICITOR FOR THE APPLICANT:

G J Legal

COUNSEL FOR THE RESPONDENT:

Mr Walker SC and Ms Christie

SOLICITOR FOR THE RESPONDENT:

Watts McCray

Orders

IT IS ORDERED THAT

The Respondent’s application for a stay of the Applicant’s application for final orders is dismissed.
The Respondent’s application for a stay of the Applicant’s application for relief as particularised in paragraphs 5, 6 and 8 of the Initiating Application filed 4 December 2014 and as particularised in paragraphs 1, 2 and 4 of the interim orders sought in the Second Amended Initiating Application filed 24 February 2015 is dismissed.
In the event that a party seeks an order that the other party pay the costs of and incidental to the application for a stay of the Applicant’s proceedings:
(a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within thirty (30) days of the date of this order; and
(b)the party seeking an order for costs shall, within sixty (60) days of today, file and serve written submissions in support of any such application for costs; and
(c)the party from whom costs are sought shall, within a further thirty (30) days thereafter, file and serve any written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking costs shall, within a further fourteen (14) days thereafter, file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom costs are sought,
and any such application for costs shall thereafter be determined in Chambers.

Note: The form of the order is subject to the entry of the order…

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 CLAYTON & BANT

Details

AGLC: CLAYTON & BANT [2018] FamCA 736
Case: [2018] FamCA 736
Decision Date: 18 September 2018

CaseChat Overview and Summary

In the matter of CLAYTON & BANT, Hogan J considered an application by the Respondent seeking a stay of the Applicant's proceedings for final orders and interim relief. The Applicant sought to continue with its applications for final orders and specific interim relief as particularised in its Initiating Application and Second Amended Initiating Application.

The central legal issue before the court was whether the Respondent had established sufficient grounds to warrant a stay of the Applicant's proceedings. This involved an assessment of the merits of the Respondent's arguments for delaying the Applicant's pursuit of final and interim relief.

Hogan J dismissed the Respondent's applications for a stay. The reasoning for this dismissal is not detailed in the provided text, but the outcome indicates that the court found no basis to prevent the Applicant from proceeding with its applications. The court then made detailed orders regarding the process for any subsequent applications for costs, including timelines for filing affidavits and written submissions from both parties.

Orders

Orders of the court

IT IS ORDERED THAT

The Respondent’s application for a stay of the Applicant’s application for final orders is dismissed.

The Respondent’s application for a stay of the Applicant’s application for relief as particularised in paragraphs 5, 6 and 8 of the Initiating Application filed 4 December 2014 and as particularised in paragraphs 1, 2 and 4 of the interim orders sought in the Second Amended Initiating Application filed 24 February 2015 is dismissed.

In the event that a party seeks an order that the other party pay the costs of and incidental to the application for a stay of the Applicant’s proceedings:

(a) if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within thirty (30) days of the date of this order; and

(b) the party seeking an order for costs shall, within sixty (60) days of today, file and serve written submissions in support of any such application for costs; and

(c) the party from whom costs are sought shall, within a further thirty (30) days thereafter, file and serve any written submissions in answer to the submissions filed and served by the party seeking costs; and

(d) the party seeking costs shall, within a further fourteen (14) days thereafter, file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom costs are sought,

and any such application for costs shall thereafter be determined in Chambers.

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

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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