Fontana and Fontana (No 2) - [2017] FamCA 615

FAMILY COURT OF AUSTRALIA

FONTANA & FONTANA (NO 2)

[2017] FamCA 615

FAMILY LAW – ORDERS – STAY PENDING APPEAL – Property orders – Where application for stay pending determination of Cross Appeal from final property orders – Where consideration of applicable principles – Application for stay granted.

Family Law Act 1975 (Cth) r 22.11

Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548
Jackson & Balen [2009] FamCAFC 131

Stephens & Stephens (Stay application) [2010] FamCA FC 20

APPLICANT:

Ms Fontana

RESPONDENT:

Mr Fontana

FILE NUMBER:

PAC

5188

2008

DATE DELIVERED:

17 August 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

11 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Satala of Agatha Satala & Associates

SOLICITOR FOR THE RESPONDENT:

Ms Alaouie of Gonzalez & Co

Orders

That Order (1) made on 19 May 2017 be stayed pending determination of the present Appeal and Cross Appeal or otherwise agreement between the parties.
That the wife prosecute her Cross-Appeal to the Full Court of the Family Court of Australia No EA 67 of 2017 with all due diligence.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontana & Fontana (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5188 of 2008

Ms Fontana

Applicant

And

Mr Fontana

Respondent

REASONS FOR JUDGMENT

The applicant wife seeks a stay of orders made 19 May 2017 in the context of final property proceedings between her and the husband.
Final property orders were made on 19 May 2017 (Fontana [2017] FamCA 374) as follows:
(1)That within three months from the date of these orders the wife pay to the husband $323,033.00 in default of payment by the due date interest to accrue.
(2)That in default of payment to the husband as provided the husband shall have liberty to apply as to enforcement.
(3)That the wife indemnify and save harmless the husband from any liability to [Mr CC] and [Mr SR] arising from work undertaken at the property at [Suburb BB].
(4)Otherwise, all applications be removed from the pending cases list.
(5)That any application for costs be made by way of written submission within one month from this date with any submissions in response to be within a further 14 days.
The litigation between the husband and wife has been ongoing since 2008.
The husband on 16 June 2017 filed a Notice of Appeal from orders made on 19 May 2017. In summary,…

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

Case: [2017] FamCA 615
Decision Date: 17 August 2017

CaseChat Overview and Summary

The case of *Fontana and Fontana (No 2)* concerned an appeal and cross-appeal before Foster J of the Family Court of Australia. The dispute arose from an earlier order made on 19 May 2017, the details of which are not specified in the provided text, but which was the subject of the current proceedings.

The primary legal issue before the court was whether the earlier order of 19 May 2017 should be stayed pending the determination of the present appeal and cross-appeal, or until the parties reached an alternative agreement. A further issue was the requirement for the wife to prosecute her cross-appeal with due diligence.

Foster J ordered that the order of 19 May 2017 be stayed pending the determination of the appeal and cross-appeal, or otherwise agreement between the parties. The court also directed that the wife prosecute her cross-appeal to the Full Court of the Family Court of Australia (No EA 67 of 2017) with all due diligence.

Orders

Orders of the court

That Order (1) made on 19 May 2017 be stayed pending determination of the present Appeal and Cross Appeal or otherwise agreement between the parties.

That the wife prosecute her Cross-Appeal to the Full Court of the Family Court of Australia No EA 67 of 2017 with all due diligence.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.