DAULTREY & TAVENER (No.2)

Case [2020] FCCA 2885

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAULTREY & TAVENER (No.2) [2020] FCCA 2885
Catchwords:
FAMILY LAW – Interim property proceedings and enforcement after earlier interim judgment heard in October/November 2019 and judgment delivered in March 2020 – Application by Respondent for a stay of the March 2020 Orders – significant delays in filing material by Respondent and no updating evidence regarding the Respondent’s financial position – consideration of principles in what amounted to a de facto application to re-open – application refused with costs – final hearing still listed for May 2021.

Legislation:

Family Law Act 1975 (Cth), s.106A

Federal Circuit Court Rules 2001 (Cth), rr.16.05, 29.04, 29.11 & 12

Federal Court Rules 2011 (Cth), r.41.11

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300

Chapman v Chapman (2015) 51 Fam LR 176

Commissioner of Taxation v Bosanac (No.2) [2016] FCA 945

Daultrey & Tavener (No.2) [2020] FCCA 399

Gronow v Gronow (1979) 144 CLR 513

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681

Medlow v Medlow (2016) 306 FLR 183; (2016) 54 Fam LR 389

Smith v New South Wales Bar Association (1992) 176 CLR 256
Applicant: MR DAULTREY
Respondent: MS TAVENER
File Number: CAC 374 of 2018
Judgment of: Judge WJ Neville
Hearing date: 21 September 2020
Date of Last Submission: 21 September 2020
Delivered at: Canberra
Delivered on: 22 October 2020

REPRESENTATION

Counsel for the Applicant:
Solicitors for the Applicant: Walsh & Blair, Wagga Wagga
Counsel for the Respondent: Mr G Blank (appearing pro bono on direct brief)
Solicitors for the Respondent: Self-represented

ORDERS

  1. The Application in a Case filed by the Respondent on 12 August 2020 be dismissed, with costs to be agreed or taxed.

  2. Within 7 days of the date of these Orders, being by 29 October 2020, the Respondent is to pay the Applicant the sum of $200,000.

  3. Absent compliance with Order 2 herein, A Street, Town B, NSW is to be sold and the current offer for its purchase accepted. The net proceeds of sale are to be distributed as per the Orders of 11 March 2020.

  4. The solicitors for the Applicant are to immediately forward to the Registrar of the Federal Circuit Court at Canberra the relevant contract for sale of A Street, Town B, NSW.

  5. The Registrar of the Federal Circuit Court at Canberra is appointed, pursuant to section 106A of the Family Law Act1975, to forthwith sign the contract for the sale of A Street, Town B, NSW and any other document specified in the Applicant’s Application in a Case filed 7 August 2020. Those documents are to be held in escrow, pending compliance (or otherwise) with the payment to the Applicant, or other Orders of the Court.

  6. The Respondent is to pay the Applicants costs of the current Application, either as agreed or taxed.

  7. All outstanding Interim Applications be dismissed.

  8. The matter remains listed for Final Hearing on 28…

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Details
AGLC
Daultrey and Tavener (No.2) [2020] FCCA 2885
Case
[2020] FCCA 2885
Decision Date

CaseChat Overview and Summary

In *Daultrey & Tavener (No.2)*, heard by Judge WJ Neville, the proceedings concerned interim property matters and enforcement following earlier judgments. The Respondent sought a stay of orders made in March 2020. The Applicant contended that the Respondent had caused significant delays in filing material and had not provided updated evidence regarding their financial position.

The central legal issue before the court was whether to grant the Respondent's application for a stay of the March 2020 orders. This application was considered in the context of principles governing applications to re-open or vary earlier discretionary judgments, particularly where there had been substantial delays and a lack of updated evidence from the applicant for the stay.

Judge Neville refused the application for a stay. The court applied established principles regarding appeals from discretionary judgments, emphasising that an appellate court should be slow to overturn a primary judge's decision unless plainly wrong. The onus was on the applicant for the stay to establish a proper basis, and the court considered factors such as the bona fides of the applicant, the risk of the appeal being rendered nugatory, and a preliminary assessment of the strength of the proposed appeal. The court noted the Respondent's failure to provide updated financial evidence and the significant delays in their application.

The court ordered that the Respondent's application be dismissed with costs. The Respondent was ordered to pay the Applicant $200,000 within seven days, failing which a property at A Street, Town B, NSW was to be sold, with net proceeds distributed according to the March 2020 orders. The Registrar of the Federal Circuit Court was appointed to sign the contract for sale if necessary. All outstanding interim applications were dismissed, and the matter remained listed for a final hearing in May 2021.

Orders

Orders of the court

ORDERS

1. The Application in a Case filed by the Respondent on 12 August 2020 be dismissed, with costs to be agreed or taxed.

2. Within 7 days of the date of these Orders, being by 29 October 2020, the Respondent is to pay the Applicant the sum of $200,000.

3. Absent compliance with Order 2 herein, A Street, Town B, NSW is to be sold and the current offer for its purchase accepted. The net proceeds of sale are to be distributed as per the Orders of 11 March 2020.

4. The solicitors for the Applicant are to immediately forward to the Registrar of the Federal Circuit Court at Canberra the relevant contract for sale of A Street, Town B, NSW.

5. The Registrar of the Federal Circuit Court at Canberra is appointed, pursuant to section 106A of the Family Law Act 1975, to forthwith sign the contract for the sale of A Street, Town B, NSW and any other document specified in the Applicant’s Application in a Case filed 7 August 2020. Those documents are to be held in escrow, pending compliance (or otherwise) with the payment to the Applicant, or other Orders of the Court.

6. The Respondent is to pay the Applicants costs of the current Application, either as agreed or taxed.

7. All outstanding Interim Applications be dismissed.

8. The matter remains listed for Final Hearing on 28 May 2021 commencing at 10:00am in CANBERRA.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I record the following from the Full Court’s decision in Aldridge & Keaton (Stay Appeal).[3] At [17] – [18], the Court said (emphasis added):[3] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion more generally in relation to appeals against interlocutory Orders in the specific context outlined, see Medlow v Medlow (2016) 306 FLR 183; (2016) 54 Fam LR 389; (2016) FLC 93-692.[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;· a person who has obtained a judgment is entitled to the benefit of that judgment;· a person who has obtained a judgment is entitled to presume the judgment is correct;· the mere filing of an appeal is insufficient to grant a stay;· the bona fides of the applicant;· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;· the desirability of limiting the frequency of any change in a child’s living arrangements;· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and· the best interests of the child the subject of the proceedings are a significant consideration. I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[4]The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.[4] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.

Ratio Decidendi

Legal Principle Established

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