Creighton & Creighton (No 5) - [2023] FedCFamC1F 424

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Creighton & Creighton (No 5) [2023] FedCFamC1F 424

File number(s): MLC 6907 of 2019

Judgment of: JOHNS J

Date of judgment: 11 May 2023

Catchwords:
FAMILY LAW - PRACTICE AND PROCEDURE – stay application – where applicant filed Notice of Appeal against costs orders made 6 March 2023 – where applicant seeks stay of enforcement of the costs orders – where appeal has been heard and dismissed –where no enforcement proceedings on foot – where stay application has no merit – stay application dismissed

FAMILY LAW - Application for adjournment – application refused

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 13.12

Cases cited: Aldridge v Keaton [2009] FMCAfam 314

Division: Division 1 First Instance

Number of paragraphs: 24

Date of hearing: 11 May 2023

Place: Melbourne

Counsel for the Applicant: Self-Represented

Solicitor for the Respondent: Ms Sanders, Taussig Cherrie Fildes
ORDERS

MLC 6907 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CREIGHTON

Applicant

AND:
MS CREIGHTON

Respondent

order made by:

JOHNS J

DATE OF ORDER:

11 MAY 2023

THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding filed 3 April 2023 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Creighton & Creighton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT

On 6 March 2023, I made an order for costs in the following terms:-
That within 28 days of the date of these orders the husband pay the wife’s costs of and incidental to these proceedings on an indemnity basis fixed in the sum of $176,010.00.
The husband filed a Notice of Appeal in respect of that order on 3 April 2023. Part F of the Notice of Appeal states that the husband seeks orders as follows:-
1.Rescinding of costs order
2.Reversal of the costs order with all the applicants [sic] costs from January 2019 to be reimbursed by the respondent…
3.Retrial - in the interests of Natural Justice for the 3 children
On 3 April 2023, the husband also filed an Application in a Proceeding in which he sought an order in the following terms:-
Stay of enforcement of costs order of Her Honour Justice Johns dated 6 March 2023
That…

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.

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Details

Case: [2023] FedCFamC1F 424
Decision Date

CaseChat Overview and Summary

The case of Creighton & Creighton (No 5) involved a stay application filed by the husband, who sought to stay the enforcement of costs orders made on 6 March 2023. The husband had also filed a Notice of Appeal against these costs orders, which was subsequently dismissed. The husband's application for a stay of enforcement was heard by Johns J of the Federal Circuit and Family Court of Australia (Division 1) on 11 May 2023. The husband, who was self-represented, sought to adjourn the hearing of the stay application due to the recent passing of his mother and his own ill health. The wife, represented by her solicitor, opposed the husband's application to stay enforcement of the costs order and the application for an adjournment.

The legal issues before the court were whether the husband's stay application had merit and whether the application for an adjournment should be granted. The court considered the principles governing stays of orders pending appeal, the dismissal of the husband's Notice of Appeal, and the lack of any ongoing enforcement proceedings. The court also assessed the merits of the husband's stay application, which focused on the husband's inability to pay the costs order and did not address the costs order or the reasons for judgment. The court found that the stay application had little merit and that further adjournment would impose unnecessary costs on the wife and the community.

Johns J dismissed the husband's stay application, noting that the application had no merit since the Notice of Appeal had already been dismissed. The court emphasised that there was no pending appeal or enforcement proceedings to stay, and the husband's application was not supported by any error of law or principle. The affidavit filed by the husband in support of the stay application was also found to be irrelevant as it did not address the costs order and appeared to be an attempt to adduce trial evidence after the trial had concluded. The court refused the husband's application for an adjournment, finding that it was no longer justified given the dismissal of the Notice of Appeal and the conclusion of the traditional mourning period.

The court made an order dismissing the husband's Application in a Proceeding filed on 3 April 2023. The form of the order is subject to review for minor typographical or grammatical errors or to record a variation to the order. The publication of this judgment under the pseudonym Creighton & Creighton was approved under section 121(9)(g) of the Family Law Act 1975 (Cth).

Orders