Donald and Mott (Stay Application)

Case [2016] FCCA 2010

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONALD & MOTT (Stay Application) [2016] FCCA 2010
Catchwords:
FAMILY LAW – Stay application – basic principles – significant history of litigation between the parties – issues raised by Mother in relation to the Father’s mental health but which were also dealt with at trial – questions about the efficacy of “protective measures” regarding the Father’s mental health status – Mother’s submissions failed to address (or even refer to) principles in Rice & Asplund – considerations in relation to “best interests” of the child and his regular involvement in litigation between his conflictual/parentally dysfunctional parents – considerations also in relation to proper use of public resources.

Legislation:  

Family Law Act 1975 (Cth), s.45
Federal Circuit Court Rules 2001 (Cth), r.29.04

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Carriel v Lendrum (2015) 53 Fam LR 157
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Gronow v Gronow (1979) 144 CLR 513
Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681
K & B (2006) FLC¶93-288
Poisat & Poisat (2014) FLC ¶93-597
Rice & Asplund (1979) FLC ¶90-725
Applicant: MS DONALD
Respondent: MR MOTT
File Number: CAC 644 of 2012
Judgment of: Judge Neville
Hearing date: 12 February 2016
Date of Last Submission: 27 April 2016
Delivered at: Canberra
Delivered on: 11 August 2016

REPRESENTATION

Counsel for the Applicant: Ms A Tonkin
Solicitors for the Applicant: Infinity Legal
Solicitor/Advocate for the Respondent: Ms J Lloyd
Solicitors for the Respondent:

Jeanine Lloyd & Associates

ORDERS

  1. The Mother’s Application in a Case, seeking a stay of the Orders made on 19th November 2015, be dismissed.

  2. The Mother is to pay the Father’s costs of the Application in a Case, either as agreed or taxed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

CAC 644 of 2012

MS DONALD

Applicant

And

MR MOTT
Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 26th September 2014, this Court made final parenting Orders in relation to now 9 year old X.

  2. Some eight months or so after those final Orders were made by Application filed on 12th May 2015, the Mother (who was the Respondent in the substantive proceedings but the Applicant in the current Applications) filed an Initiating Application that sought to re-visit those Orders. 

  3. On 19th November 2015, the Mother’s Application was dismissed, primarily on the basis that application of the principle(s) from Rice & Asplund (and later authority) determined that it was not in the child’s best interests for the matter to be re-litigated.[1]  The Court also held that the matters raised…

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Details
AGLC
Donald and Mott (Stay Application) [2016] FCCA 2010
Case
[2016] FCCA 2010
Decision Date

CaseChat Overview and Summary

In the matter of Donald and Mott, Judge Neville considered an application by the Mother seeking a stay of orders made on 19th November 2015. The Father was the respondent to this application.

The primary legal issue before the court was whether to grant the Mother's application for a stay of the previously made orders. This required the court to consider the established principles governing applications for stays, both in general legal contexts and specifically within parenting proceedings.

Judge Neville's reasoning was guided by established authorities, including the Full Court's decision in *Aldridge & Keaton (Stay Appeal)*. The court noted that applications for stays are discretionary and must be determined on their merits. Key principles applied included that the onus rests on the applicant to establish a proper basis for the stay, though not necessarily "special" or "exceptional" circumstances. The court also considered the entitlement of a judgment holder to the benefit of their judgment, the presumption of its correctness, and that the mere filing of an appeal is insufficient grounds for a stay. Further considerations involved the bona fides of the applicant, the balance of convenience, the risk of the appeal being rendered nugatory, a preliminary assessment of the appeal's strength, the desirability of stability in a child's living arrangements, the timeframe for the appeal, and the best interests of the child.

The court dismissed the Mother's application for a stay of the orders made on 19th November 2015. The Mother was ordered to pay the Father's costs of the application.

Orders

Orders of the court

1.

The Mother’s Application in a Case, seeking a stay of the Orders made on 19th November 2015, be dismissed.

2.

The Mother is to pay the Father’s costs of the Application in a Case, either as agreed or taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For current purposes, I note the following (also noted by the Mother in her submissions) from the Full Court’s decision in Aldrige & Keaton (Stay Appeal).[6] At [17] – [18], the Court said (emphasis added):[6] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications , where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [36], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B (2006) FLC ¶93-288.[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.

Ratio Decidendi

Legal Principle Established

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