DUNSTAN & ZIEGLER - [2015] FamCA 419

FAMILY COURT OF AUSTRALIA

DUNSTAN & ZIEGLER

[2015] FamCA 419

FAMILY LAW – FORUM – where there is no dispute that the child has spent very limited time in Australia – where during a holiday to Australia the child was retained by the father – where the mother travelled to Australia and commenced proceedings, seeking a recovery order – where an interim parenting order provided that the child live with the mother and spend time with the father – where the mother and child left Australia – where the child is no longer in Australia – where the mother subsequently commenced parenting proceedings in a foreign forum – where the mother now seeks an order for the permanent stay of the parenting proceedings she commenced in Australia.

Family Law Act 1975 (Cth), s 69E;
Family Law Regulations

B v B (Re Jurisdiction) (2003) FLC 93 – 136
Bennett v Bennett (2001) FLC 93 – 088
CSR Limited v Cigna Insurance Australia Limited and Others (1996-97) 189 CLR 345
Henry v Henry (1996) 185 CLR 571 at 591
Jago v District Court (NSW) (1989) 168 CLR 23
Jess & Jess (2014) FLC 93–620
Kwon & Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559)
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Pascarl & Oxley [2013] FamCAFC 47
R v Ross; Ex parte Green (1984) 156 CLR 185
Regie Nationale des Usines Renault SA and Another v Zhang (2002) 210 CLR 491
Tan & Guok [2015] FamCAFC 94
Voth v Manildra Flour Mills (1990) 171 CLR 538
Zanda & Zanda [2014] FamCAFC 173
ZP v PS (1994) 181 CLR 639

APPLICANT:

Ms Dunstan

RESPONDENT:

Mr Ziegler

FILE NUMBER:

BRC

9177

2014

DATE DELIVERED:

4 June 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

20 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Jennings from Go To Court Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kronberg

SOLICITOR FOR THE RESPONDENT:

R D Martin & Co

Orders

The proceedings commenced by the Initiating Application filed 10 October 2014 be permanently stayed.
In the event either party seeks an order that the other pay the costs of and incidental to the proceedings:
(a)any such party shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)the party against whom an order for costs is sought shall file and serve within a further fourteen (14) days thereafter any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(c)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.

IT IS NOTED that publication of this judgment by this…

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

AGLC: DUNSTAN & ZIEGLER [2015] FamCA 419
Case: [2015] FamCA 419
Decision Date: 4 June 2015

CaseChat Overview and Summary

The proceedings involved parties identified as Dunstan and Ziegler, with the dispute culminating in a decision by Hogan J. The core of the matter concerned an application to permanently stay the proceedings that had been commenced by an Initiating Application filed on 10 October 2014.

The primary legal issue before the court was whether the proceedings should be permanently stayed. This required the court to consider the circumstances and legal grounds upon which such a drastic measure as a permanent stay of proceedings would be justified.

Hogan J determined that the proceedings should be permanently stayed. The reasons for this decision are not detailed in the provided text, but the outcome indicates that the court found sufficient grounds to halt the legal action entirely. The court also made detailed orders regarding the process for any application for costs, requiring written submissions from both parties within specific timeframes, with the final consideration of costs to occur in Chambers.

Orders

Orders of the court

The proceedings commenced by the Initiating Application filed 10 October 2014 be permanently stayed.

In the event either party seeks an order that the other pay the costs of and incidental to the proceedings:

(a) any such party shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

(b) the party against whom an order for costs is sought shall file and serve within a further fourteen (14) days thereafter any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

(c) the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

Background

Background to the litigation

Full text does not contain this section.

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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