Gin and Hing (No 2) - [2011] FamCA 61

FAMILY COURT OF AUSTRALIA

GIN & HING (NO. 2)

[2011] FamCA 61

FAMILY LAW – STAY

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681
Line and Line (1997) FLC 92-729
Stephens and Stephens [2010] FamCAFC 20

APPLICANT:

Mr Gin

RESPONDENT:

Ms Hing

FILE NUMBER:

MLC

4582

2010

DATE DELIVERED:

27 January 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

27 January 2011

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

Schetzer Constantinou

SOLICITOR FOR THE RESPONDENT:

Mr Staindl, Clancy & Triado

Orders

That the application in a case filed 21 January 2011 by the husband is dismissed.
That the husband pay the wife’s costs fixed in the sum of $3500 within one month.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4582 of 2010

MR GIN

Applicant

And

MS HING

Respondent

REASONS FOR JUDGMENT

Stay applications are always a difficult exercise of discretion but more so, and particularly so, in cases involving children. In this case, R is a very young baby and were that not the case there would not be a problem.
I have just heard from the father that the child could live with him but that has not been the basis upon which his application nor this stay application was conducted, and it was certainly not the way in which the case was conducted before me in December. It was never suggested to me that the child was to live with anybody other than her mother.
Judicial discretion is often guided by principles set out in various authorities. In this case the principle is that set out in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681, where at page 681, Brennan J, as he then was, said:
The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises.
This application is different, but only marginally, from a special application. It is different in the sense that I am dealing with the welfare of a child. In the Burgundy Royale case, his Honour went on to say:
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider - first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the…

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 Gin and Hing (No 2)

Details

AGLC: Gin and Hing (No 2) [2011] FamCA 61
Case: [2011] FamCA 61
Decision Date: 27 January 2011

CaseChat Overview and Summary

In *Gin and Hing (No 2)*, Cronin J of the Supreme Court of Western Australia considered an application filed by the husband. The precise nature of the dispute is not detailed in the provided text, but it involved an application made by the husband in proceedings initiated on 21 January 2011.

The central legal issue before the court was whether to grant the husband's application. The court was required to determine the merits of this application and decide whether it should be dismissed.

Cronin J dismissed the husband's application. The court ordered that the husband pay the wife's costs fixed at $3500, with payment due within one month.

Orders

Orders of the court

That the application in a case filed 21 January 2011 by the husband is dismissed.

That the husband pay the wife’s costs fixed in the sum of $3500 within one month.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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