Darley and Darley (No. 3) - [2019] FamCA 459

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 3)

[2019] FamCA 459

PRACTICE AND PROCEDURE – Stay of proceedings – Where the application has not been served on the other parties – Where the time for payment of the costs order has passed – Where there is no evidence as to the reason for the delay in applying for a stay or any hardship suffered by the applicant – Application dismissed.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556
Bele & Vaughan [2011] FamCA 724
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

APPLICANT:

Ms Darley

RESPONDENT:

Mr Darley

INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

10 June 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

10 June 2019

REPRESENTATION

FOR THE APPLICANT:

Self-represented

FOR THE RESPONDENT:

Appearance excused

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Appearance excused

Orders

The Application in a Case filed by the applicant on 4 June 2019 is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley & Darley (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2317 of 2013

Ms Darley

Applicant

And

Mr Darley

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

This matter is listed today pursuant to the order made on 5 April 2019 for the applicant mother, Ms Darley, to show cause why a vexatious proceedings order should not be made against her.
On 4 June 2019, the mother filed an application in the case in which she seeks the following order:
(1)That the orders of Justice Carew made 5 April 2019 be stayed pending the outcome of the appeals filed in the Family Court of Australia on 9 February 2019 and 3 May 2019.
(2)That this application in the case be determined urgently before the show cause hearing on 10 June 2019.
(3)That the show cause hearing of 10 June 2019 be vacated pending the outcome of the appeals.
It became apparent in my exchange with Ms Darley that what she is hoping to achieve by the stay application is, in fact, to stay the operation of the costs order made against her on 5 April 2019, which is set out in paragraph 11 of that order requiring that she pay…

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 Darley and Darley (No. 3)

Details

AGLC: Darley and Darley (No. 3) [2019] FamCA 459
Case: [2019] FamCA 459
Decision Date: 10 June 2019

CaseChat Overview and Summary

In *Darley and Darley (No. 3)*, the applicant sought a stay of proceedings. The application had not been served on the other parties, and the time for payment of a costs order had expired.

The central legal issue before Carew J was whether to grant the applicant's request for a stay of proceedings in circumstances where the application had not been served on the opposing parties and the deadline for complying with a costs order had passed.

Carew J dismissed the application, finding that there was no evidence presented to explain the delay in seeking the stay or to demonstrate any hardship suffered by the applicant as a result of the existing situation. The court applied the principle that an applicant for a stay must provide a satisfactory explanation for any delay and demonstrate the necessity of the relief sought.

Consequently, the application filed by the applicant on 4 June 2019 was dismissed.

Orders

Orders of the court

The Application in a Case filed by the applicant on 4 June 2019 is dismissed.

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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