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EJK & TSL (No.2)

EJK & TSL (No.2)

Case [2006] FamCA 806 21 August 2006

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FAMILY COURT OF AUSTRALIA

EJK AND TSL

[2006] FamCA 806

APPEAL – STAY - Refusal by trial Judge to grant stay of orders pending appeal – Consideration of principles outlined in Clemett and Clemett (1981) FLC 91-013 – Trial Judge’s discretion miscarried as her Honour did not give sufficient weight to lack of enforceability in Australia of undertakings given by father – Could not be said mother’s appeal had no prospects of success – Stay granted on basis that appeal be determined expeditiously.

Federal Proceedings (Costs) Act 1981 (Cth), ss 6 and 9

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
Clemett and Clemett (1981) FLC 91-013
DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

APPELLANT: EJK

RESPONDENT: TSL

FILE NUMBER: MLF 3708 of 2004

APPEAL NUMBER: SA 49 of 2006

DATE DELIVERED: 21 August 2006

PLACE DELIVERED: Sydney (with video link with Brisbane and Melbourne)

JUDGMENT OF: Coleman, May and Boland JJ

HEARING DATE: 17 August 2006

LOWER COURT JURISDICTION:                  Family Court of Australia
LOWER COURT JUDGMENT DATE:            16 August 2006
COUNSEL FOR THE APPELLANT:               Mr Wilson
SOLICITORS FOR THE APPELLANT:         Westminster Lawyers
COUNSEL FOR THE RESPONDENT:           Mr Geddes, QC

SOLICITORS FOR THE RESPONDENT: TressCox Lawyers

Orders

That the appeal, insofar as it relates to the refusal to stay orders made on 16 August 2006 pending an appeal, is allowed.
That the balance of appeal No. SA 49 of 2006 is expedited.
That the stay of the orders of 16 August 2006 made by the Full Court on 17 August 2006 shall continue pending the hearing and determination of the appeal or further order of the Court.
That a procedural hearing shall be conducted as soon as practicable by the Appeals Registrar, Southern Region to settle the appeal book index and make such other procedural orders as are necessary for the prosecution of the appeal in the sittings in the week commencing 18 September 2006.
Reserve costs to the Full Court as costs in the appeal, including the reservation of the application by either party for a certificate pursuant to the provisions of ss 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

APPEAL NUMBER: SA 49 of 2006

FILE NUMBER: MLF 3708 of 2004

EJK

Appellant

And

TSL

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings concern a five and a half year old child JWL. He was born in Korea, and his parents EJK (‘the mother’) and TSL (‘the father’) are also Korean citizens.
It is not in dispute that in 2004 the mother, whilst exercising contact to the child, removed him from Korea without the father’s knowledge or consent. By June 2004 the mother and the child had commenced living in Australia in the home of her sister. Not long…

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 EJK & TSL (No.2)

Details

AGLC: EJK & TSL (No.2) [2006] FamCA 806
Case: [2006] FamCA 806
Decision Date: 21 August 2006

CaseChat Overview and Summary

The appeal concerned the refusal by a trial judge to grant a stay of orders pending an appeal. The parties involved were EJK and TSL, with the appeal heard by Coleman, May, and Boland JJ. The core of the dispute revolved around the enforceability of undertakings provided by the father in the context of an appeal against the trial judge's decision.

The central legal issue before the appellate court was whether the trial judge had erred in exercising her discretion by refusing to grant a stay of the orders. This required the court to consider the principles governing the grant of a stay pending appeal, particularly in family law matters, and to assess whether the trial judge had given adequate weight to all relevant factors.

The appellate court found that the trial judge's discretion had miscarried. Their Honours reasoned that insufficient weight had been given to the lack of enforceability in Australia of the undertakings provided by the father. Consequently, the court determined that it could not be said that the mother's appeal lacked prospects of success. A stay was granted on the condition that the appeal be determined expeditiously.

Orders