Grange and Grange and Ors (No. 2) - [2018] FamCA 241

FAMILY COURT OF AUSTRALIA

GRANGE & GRANGE AND ORS (NO. 2)

[2018] FamCA 241

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – where the husband and second respondent’s application to appear by telephone is not opposed and is granted – where the husband seeks a stay of orders made 30 January 2018 pending determination of his appeal – where the orders made 30 January 2018 do not cast any obligation upon the husband but instead require the third respondent to pay monies into the wife’s solicitor’s trust account – where there is no appeal from the subject orders filed by the third respondent – where there is no evidence that the third respondent supports the application for a stay – where the third respondent chose not to participate in the proceedings – where the husband stands to receive a payment in excess of $500,000 upon compliance of the orders made 30 January 2018 by the third respondent – where it is difficult to discern merit in the husband’s grounds of appeal as contained in his Notice of Appeal – where it is not demonstrated that the husband’s appeal from the subject orders, if successful, will be rendered nugatory by the failure to grant a stay of those orders – the husband’s application for a stay is dismissed – the husband is ordered to pay the wife’s costs of and incidental to the application fixed in the sum of $1,632.81

Family Law Act 1975 (Cth) s 117(2)
Family Law Rules 2004 (Cth) r 22.11

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Kelly and Kelly (1981) FLC 91-007; [1980] FamCA 88
Molier and Van Wyk (No. 2) (1981) FLC 91-001; [1981] FamCA 5
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT:

Mr Grange

FIRST RESPONDENT:

Ms Grange

SECOND RESPONDENT:

Ms A Grange

THIRD RESPONDENT:

Ms B Grange

FILE NUMBER:

ROC

580

2011

DATE DELIVERED:

18 April 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

18 April 2018

REPRESENTATION

THE APPLICANT:

In person via telephone

COUNSEL FOR THE FIRST RESPONDENT:

Mr Shoebridge

SOLICITOR FOR THE FIRST RESPONDENT:

Madden Solicitors

THE SECOND RESPONDENT:

In person via telephone

THE THIRD RESPONDENT:

No appearance

Orders

IT IS ORDERED THAT:

The applicant, Mr Grange and the second respondent have leave to appear by electronic communication on the hearing of this application.
The applicant’s Application in a Case filed on 28 March 2018 is dismissed.
The applicant, Mr Grange pay the costs of the first respondent, Ms Grange fixed in the sum of $1,632.81 within thirty (30) days of the date of these orders.

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 Grange & Grange and Ors (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…

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: [2018] FamCA 241
Decision Date: 18 April 2018

CaseChat Overview and Summary

In *Grange and Grange and Ors (No. 2)*, Kent J of the Federal Circuit Court of Australia considered an application by Mr Grange. The specific nature of the dispute is not detailed, but the orders indicate it involved an application filed by Mr Grange on 28 March 2018, which was subsequently dismissed. The proceedings also involved costs awarded against Mr Grange.

The primary legal issue before the court was whether to grant leave for parties to appear by electronic communication and, more significantly, the dismissal of Mr Grange's application and the award of costs. The court's decision also implicitly addresses the principles governing applications for stays of execution pending appeal, as discussed in the judgment's reasoning.

Kent J's reasoning, drawing on established case law such as *Kelly and Kelly*, *Klinker Knitting Mills Pty. Ltd. v. Union Fire Insurance and General Insurance Co. Ltd.*, and *Scarborough v. Lews Junction Stores Pty. Ltd.*, affirmed that an appeal does not automatically operate as a stay of execution. The court reiterated that a stay is not granted as a matter of course and requires the demonstration of "special circumstances" or a "real risk" that an appeal would be rendered abortive if a stay were not granted. The discretion to grant a stay is wide and should be exercised based on the specific circumstances of each case, particularly within the context of the *Family Law Act*, where the impact of orders can vary significantly.

The court ordered that Mr Grange and the second respondent have leave to appear by electronic communication. Mr Grange's application filed on 28 March 2018 was dismissed. Furthermore, Mr Grange was ordered to pay the first respondent's costs, fixed at $1,632.81, within thirty days.

Orders

Orders of the court

IT IS ORDERED THAT:

The applicant, Mr Grange and the second respondent have leave to appear by electronic communication on the hearing of this application.

The applicant’s Application in a Case filed on 28 March 2018 is dismissed.

The applicant, Mr Grange pay the costs of the first respondent, Ms Grange fixed in the sum of $1,632.81 within thirty (30) days of the date of these orders.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Kelly and Kelly (1981) FLC 91-007, Justice Fogarty adopted and refined the principles articulated in two Victorian cases in the following passages at pages 76,104 and 76,105:In Klinker Knitting Mills Pty. Ltd. v. Union Fire Insurance and General Insurance Co. Ltd. (1937) V.L.R. 142, an application was made under the equivalent rules of the Victorian Supreme Court before Sir Charles Lowe. His Honour, in a typically brief judgment, said this:“There is the general principle laid down in the rule that ‘an appeal shall not operate as a stay of execution or of proceedings under the decision appealed from’, and then one gets an exception ‘except so far as the Court or a Judge may so order’. I think that the decisions cited show that under the exception there is a general discretion reposed in the Court. But in the exercise of that discretion one has to bear in mind that the rule is that there shall be no stay. The language used suggests that there must be some exceptional circumstances shown to take the case out of the general rule, and I think that is the proper construction of the rule. If no facts are shown on which the Court can base its discretion then apart from consent there will be no stay. The facts must justify the stay.”In a later judgment before Adam J. in the Supreme Court of Victoria, the matter was further considered in Scarborough v. Lews Junction Stores Pty. Ltd. (1963) V.R. 129. His Honour adopted the same approach where he said, at p. 130:“The rule says that an appeal does not operate as a stay of execution. That is so, and an application for a stay of proceedings is not granted as of course. There must be special circumstances existing to justify an order staying the execution of the judgment — some special circumstances which must be relevant to the purpose for which the stay is granted. Such circumstances would exist where a successful appellant would be deprived of the fruits of his appeal if a stay of execution were not granted. It has been stated that the applicant for a stay of execution should show that he will ‘probably’ not be able to recover from the other party the amount of judgment which he has been compelled to pay under execution, in order to satisfy the court that a stay should be granted. I do not think that the word ‘probably’ has any particular merit. The test, I think, is, whether there is a real risk that the appeal would prove abortive if the applicant were not granted a stay.”That latter case I think demonstrates what is relatively obvious, namely that a stay is not granted as of course and that appropriate (or if one likes the term “special”) circumstances must be shown. In that particular case, what was argued was that there was a real risk that if the appeal was successful it would be abortive if no stay was granted and the judgment has to be read in that light, that is the statement of his Honour in relation to that was not intended to be an exhaustive statement of the application of the rule, but a particular instance of its application in the particular case.Regulation 120(8) restates the general position that an appeal does not as such operate as a stay but grants to a Judge of the Court a discretion to grant a stay in an appropriate case. Clearly, there must be circumstances shown which would justify the exercise of that discretion. It is, I think, unhelpful to attempt to circumscribe the exercise of that discretion by particular phrases or by reference to particular categories. 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. Confining oneself to property orders, experience shows that the scope and impact of orders under sec. 78 and sec. 79 of the Family Law Act can vary considerably and the relevance of an application for a stay would vary markedly. For example, the ordinary type of order encountered frequently in this jurisdiction is an order for the sale of the only asset of the parties, namely the matrimonial home, which may be occupied by one of them and perhaps the children of the marriage. Ordinarily, one would anticipate that it would be proper to grant a stay in respect of such an order because it may prove impossible or impractical to restore the previously existing situation if the appeal were successful but the sale had been carried through in the meantime. Numerous other instances come to mind.(Emphasis added)

Ratio Decidendi

Legal Principle Established

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