Falkner & Candle - [2021] FedCFamC1F 66

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Falkner & Candle [2021] FedCFamC1F 66

File number(s): PAC 623 of 2018

Judgment of: TREE J

Date of judgment: 21 September 2021

Catchwords: FAMILY LAW – STAY APPLICATION – INTERLOCUTORY INJUNCTION – SECURITY FOR COSTS – ENFORCEMENT – Where the wife seeks a partial stay of property settlement orders requiring her to pay money to the husband – Where the wife has potential costs applications against the husband – Where the partial stay can be characterised alternatively as an interlocutory injunction or security for costs application – Balance of convenience – Where weighing the relevant matters would not favour a stay, interlocutory injunction or security for costs – Where husband’s application for enforcement must succeed – Costs ordered in favour of husband.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.02

Cases cited:
Aldridge & Keaton (Stay Appeal) (2009) FamCAFC 106

Australian Broadcasting Corporation & O’Neill (2006) 227 CLR 57; [2006] HCA 46

Colgate-Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Luadaka v Luadaka (1998) FLC 92-830; [1998] FamCA 1520

Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: Division 1 First Instance

Number of paragraphs: 45

Date of hearing: 15 September 2021

Place: Cairns (via video link)

Counsel for the Applicant: Mr Gardiner

Solicitors for the Applicant: Coleman Greig Lawyers

Counsel for the Respondent: Mr Othen

Solicitors for the Respondent: Jano Family Law
ORDERS

PAC 623 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FALKNER

Applicant

AND:
MR CANDLE

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

21 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The time for compliance with Order 1 of the orders of Foster J made 29 April 2021 be enlarged to 4.00 pm on Friday 24 September 2021.
2.Otherwise the husband’s Application in a Case filed 3 August 2021 be dismissed.
3.The wife’s Response to Application in a Case filed 2 September 2021 be dismissed.
4.Paragraphs 1, 2, 3 and 6 of the wife’s Amended Application in a Case filed 2 July 2021 be dismissed.
5.The wife pay the husband’s costs of and incidental to his Application in a Case filed 3 August 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved…

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 Falkner & Candle

Details

AGLC: Falkner & Candle [2021] FedCFamC1F 66
Case: [2021] FedCFamC1F 66
Decision Date: 21 September 2021

CaseChat Overview and Summary

The case of Falkner v Candle before Tree J involved a wife seeking a partial stay of property settlement orders that required her to pay money to the husband. The wife also had potential costs applications against the husband. The husband filed an application for enforcement of the orders. The court had to decide whether to grant the wife's stay application, which could be seen as either an interlocutory injunction or a security for costs application. The court had to weigh the balance of convenience and consider whether to grant the husband's enforcement application.

The court concluded that the wife's application for a stay could be seen through three different perspectives. It could be seen as a stay, an interlocutory injunction, or a security for costs application. The court had to consider the application from all three perspectives before deciding whether to exercise its discretion in favor of the wife. The court found that the wife's application failed to meet the threshold for a stay, interlocutory injunction, or security for costs. The court held that the husband's application for enforcement must succeed, and the wife must pay the husband's costs of the application.

The court found that the wife's application for a stay of the property settlement orders was not appropriate, as the stay could be seen as an interlocutory injunction or a security for costs application. The court found that the balance of convenience did not favor a stay, interlocutory injunction, or security for costs. The court also found that the husband's application for enforcement must succeed, and the wife must pay the husband's costs of the application. The court found that the wife's failure to comply with prior orders of the court, her superior financial position, and her loss compelled that she should bear the husband's costs.

The court ordered that the wife pay the husband's costs of and incidental to his Application in a Case filed 3 August 2021. The court also ordered that the time for compliance with Order 1 of the orders of Foster J made 29 April 2021 be enlarged to 4.00 pm on Friday 24 September 2021. The court dismissed the wife's Response to Application in a Case filed 2 September 2021 and the wife's Amended Application in a Case filed 2 July 2021. The court also dismissed paragraphs 1, 2, 3, and 6 of the wife's Amended Application in a Case filed 2 July 2021.

Orders

Orders of the court

PAC 623 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FALKNER

Applicant

AND:

MR CANDLE

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

21 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. The time for compliance with Order 1 of the orders of Foster J made 29 April 2021 be enlarged to 4.00 pm on Friday 24 September 2021.

2. Otherwise the husband’s Application in a Case filed 3 August 2021 be dismissed.

3. The wife’s Response to Application in a Case filed 2 September 2021 be dismissed.

4. Paragraphs 1, 2, 3 and 6 of the wife’s Amended Application in a Case filed 2 July 2021 be dismissed.

5. The wife pay the husband’s costs of and incidental to his Application in a Case filed 3 August 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

On 15 September 2021 I heard the parties’ competing applications and reserved my decision. This is that decision and the reasons for it.BACKGROUND The trial before Foster J concluded on 6 April 2021, with judgment being delivered on 29 April 2021. As well as the payment by the wife to the husband of $604,168 (subject to adjustment for interest and costs) there were obligations imposed upon the husband to transfer his interest in a particular company to the wife. It is not in dispute that the husband has complied with all his obligations under the orders of Foster J. On 27 May 2021 the husband filed a Notice of Appeal from the orders of Foster J, extending to some ten grounds. Those challenges include allegations of a denial of natural justice and/or procedural fairness, inadequate reasons, an erroneous notional adding back in the balance sheet of post separation payments to the husband, as well as challenges to the weight which the primary judge gave to relevant considerations. On 28 May 2021 the wife filed an Application in a Case seeking that the husband pay her costs of and incidental to the property settlement proceedings on an indemnity basis. On 28 June 2021, Foster J had ordered that that Application in a Case “[b]e listed on a date to be advised following the outcome of the appeal”. That precipitated the wife filing her Amended Application in a Case on 2 July 2021, seeking the relevant stays which I have previously adverted to. The time for the payment of the $604,168 (albeit subject to the adjustments contemplated in the orders of Foster J) was 29 July 2021, and it is common ground that $400,000 of that amount plus accrued interest has not been paid by the wife. That precipitated the husband filing his 3 August 2021 Application in a Case seeking enforcement. Foster J retired on 12 August 2021, with both applications pending. They were subsequently listed for determination before me.THE WIFE’S APPLICATIONOverview Although couched as an application for partial stay of the orders of Foster J, that is not the only way to characterise the wife’s application. It can also be seen as seeking a prohibitory interlocutory injunction, restraining the husband from accessing and utilising the monies which by now ought to have been paid to him, and hence his own property. Alternatively it can also be seen as seeking both a prospective and retrospective application for security for costs. It is useful, given the relatively unusual nature of the wife’s application, to consider her application through all three prisms before determining whether, ultimately, the discretion that I have should be exercised as she seeks.Viewed as a stay Ordinarily, where there is an appeal on foot, stays are brought by an appellant anxious to ensure that their appeal is not rendered nugatory, for instance, by preserving the assets which are the subject of the appeal. This is not such an application. Rather it is an application to partially stay orders pending the outcome of both an extant costs application in the first instance proceedings, and a prospective costs application in the appeal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the event that the wife’s applications failed, and the husband’s application therefore succeeded, she again sensibly appeared to concede that she could not resist an order for costs. Even if I am mistaken as to that, her loss, superior financial position, and failure to comply with prior orders of the court, compel that she should bear the husband’s costs. There will therefore be an order that the wife pays the husband’s costs of his Application in a Case filed 3 August 2021.CONCLUSION For these reasons there will be orders as set out at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 623 of 2018
Judgment of:	TREE J
Date of judgment:	21 September 2021
Catchwords:	FAMILY LAW – STAY APPLICATION – INTERLOCUTORY INJUNCTION – SECURITY FOR COSTS – ENFORCEMENT – Where the wife seeks a partial stay of property settlement orders requiring her to pay money to the husband – Where the wife has potential costs applications against the husband – Where the partial stay can be characterised alternatively as an interlocutory injunction or security for costs application – Balance of convenience – Where weighing the relevant matters would not favour a stay, interlocutory injunction or security for costs – Where husband’s application for enforcement must succeed – Costs ordered in favour of husband.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.02
Cases cited:	Aldridge & Keaton (Stay Appeal) (2009) FamCAFC 106 Australian Broadcasting Corporation & O’Neill (2006) 227 CLR 57; [2006] HCA 46 Colgate-Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Luadaka v Luadaka (1998) FLC 92-830; [1998] FamCA 1520 Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135 Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division:	Division 1 First Instance
Number of paragraphs:	45
Date of hearing:	15 September 2021
Place:	Cairns (via video link)
Counsel for the Applicant:	Mr Gardiner
Solicitors for the Applicant:	Coleman Greig Lawyers
Counsel for the Respondent:	Mr Othen
Solicitors for the Respondent:	Jano Family Law

PAC 623 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FALKNER Applicant
AND:	MR CANDLE Respondent

ORDER MADE BY:	TREE J
DATE OF ORDER:	21 SEPTEMBER 2021