Elton and Batey-Elton (No 2)

[2010] FamCA 106

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 case must be looked at in the light of its own circumstances against the background of that general approach, and a decision made in each case as to whether a stay is proper in the light of the words of the regulations considered against the background of the decided cases. That the discretion should be wide and untrammelled by reference to particular categories is particularly important under the Family Law Act.

6. It is clear that a stay should not be granted as a matter of course.  It should only be granted where it is appropriate or that there are special circumstances that can be established. 

7. It is often said in cases that the ordinary rule is that the successful litigant is entitled to the fruits of his or her litigation, pending the determination of any appeal.  Ironically, in this case, both parties want the matter to proceed, but in different ways.  It is the husband who may be said to be desiring to enjoy the fruits of the wife’s application that I disqualify myself, namely, to have all of the outstanding applications and, ultimately, the trial itself, heard. 

8. The matters that should be taken into account in relation to a stay application are whether the refusal of the stay will render the appeal nugatory, the merits of the appeal, whether there has been undue delay in filing the application and bringing the application for a stay, the bona fides of the applicant for the stay, as well as the length of time that it would take for the appeal to be heard. 

9. It does not take much imagination, in this case, to recognise that a stay would not render a successful appeal nugatory.  In effect, if the appeal court decided that I had erred, then the whole case could be heard again anyway.  On that basis, the stay could not be granted. 

10. The grounds and merits of the appeal are always difficult to assess from a subjective point of view in a case such as this, particularly in relation to a matter involving an application for disqualification.  In this case, the ground of appeal seems to me to be largely based upon procedural fairness.  There are two comments I wish to make about that.  The first is that it was the wife’s own application, albeit she seems to argue that she was not told of the timing of it.  I determined last Thursday that it was a serious application to be made.  I determined it on that basis.

11. The second matter is that when I endeavoured to ascertain what further material the wife would produce if the matter was not heard then, she declined to provide anything.  It is important to note that, having refused to have the matter heard the way she wanted it heard, she then left the court.  At this stage, therefore, although she has a copy of the orders I have made, she does not know the reasons upon which I made the order.  As such, it is hard to see how she could therefore say that she has been harshly treated.

12. When I consider that approach and the document that she has filed on 12 February, the appeal has no merit.  I say that, again, in the context of having to judge whether, in fact, I have acted unfairly in her case. 

13. There has not been any undue delay in filing the appeal and bringing the application for the stay.  In this case, I have assisted the wife in some respects by overcoming the problem of filing the application for the stay.

14. I do not doubt the bona fides of the wife when she says she wishes the stay, although I am not at all clear that she understands what it is that she is doing.  I say that I do not doubt her bona fides also because the whole of this litigation has involved contentious applications, including appeals and attempts at appeals. 

15. The length of time it would take for this appeal to be heard is very concerning.  It is not unusual for appeals to not only take some time to be listed, but then to be ultimately heard and judgment delivered.  This case in particular has a long tragic history in this court.  It is not just for the sake of the husband that it needs to be heard; the wife needs it over and done with as well.

16. In my view, the time taken for an appeal to be heard and determined is something that is very significant in this case, because a stay order would not render an appeal nugatory.  In this case, I see no reason, therefore, to determine that there are special circumstances to stay the order that I made last Thursday.  Accordingly, the oral application made this day is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 February 2010