Elton and Batey-Elton (No 2)

FAMILY COURT OF AUSTRALIA

ELTON & BATEY-ELTON (NO. 2) [2010] FamCA 106

FAMILY LAW – PRACTICE AND PROCEDURE – Stay pending appeal – Stay refused

Family Law Act 1975 (Cth)

Kelly (1981) FLC 91-007

APPLICANT: Mr Elton

RESPONDENT: Ms Batey-Elton

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 15 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cronin J

HEARING DATE: 15 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: Rod Madsen

THE RESPONDENT: In person

Orders

1. That the wife’s oral application for a stay of the order made on 11 February 2010 dismissing her application that I disqualify myself is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Elton & Batey-Elton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF 2250 of 2004

MR ELTON

Applicant

And

MS BATEY-ELTON

Respondent

REASONS FOR JUDGMENT

1. On 11 February 2010 I made four orders, the fourth of which is not relevant to these proceedings.  The three orders were that first, a paragraph of an application by the wife, which she filed on 10 February 2010 was dismissed.  The second order was that the husband’s costs of the day were reserved, and the third, that the balance of the wife’s application in the case, as well as the trial itself, be adjourned until 10 o’clock this morning.  Paragraph 2 of the application that I dismissed could only be construed as an application that I disqualify myself.  I have dismissed that application.

2. The third order that I made on 11 February simply adjourned the balance of the wife’s application, as well as the trial, to today, on the basis that the application itself sought orders adjourning the trial, and various discovery orders. 

3. On 12 February 2010, the wife lodged notice of appeal against the orders.  I do not propose to go into any great detail about the document that was filed, save that it is clear that she is appealing only against orders numbered 1 and 3.  The grounds of appeal are 10 in number, and set out in a very general way that there was a breach or series of breaches of the rules of natural justice or procedural fairness.

4. Then matters relate to the issue that I should have disqualified myself.  Although there was no formal written application for a stay of my order, I have permitted the wife to make an oral application for the sake of completeness.  I have endeavoured this morning to explain to her what it is that must be established to grant a stay, and much of what has been said simply reargues not only the issue of the disqualification application, but also her complaint which may or may not in the future be the subject of the appeal. 

5. An order for a stay pending an appeal is discretionary.  In Kelly (1981) FLC 91-007 at 76,105, Fogarty J said the following:

   Each…