Haines & Rader (No 8) - [2023] FedCFamC1F 466

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haines & Rader (No 8) [2023] FedCFamC1F 466

File number(s): SYC 1641 of 2019

Judgment of: CHRISTIE J

Date of judgment: 8 June 2023

Catchwords: FAMILY LAW – PROCEDURE – Where the trial judge has stayed final orders pending the completion of an appeal on conditions – Where one of the conditions requires prosecuting the appeal expeditiously - Where the appellant has failed to comply with the order to file his Summary of Argument on the due date –Where a party seeks for the matter to be relisted.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23

Cases cited: Gallo v Dawson (1990) 93 ALR 479

Division: Division 1

Number of paragraphs: 28

Date of hearing: 8 June 2023

Place: Sydney

Solicitor for the Applicant: Dettmann Phair Lawyers

Counsel for the Respondent: Mr Howe

Solicitor for the Respondent: Morson Law
ORDERS

SYC 1641 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HAINES

Applicant

AND:
MR RADER

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

8 jUNE 2023

THE COURT ORDERS THAT:
1.That the oral application for discharge of the stay granted 7 March 2023 is dismissed.
2.If the appeal listed 26 June 2023 is vacated on the husband’s application, Order 1 of the Orders of 23 May 2023 will be discharged.
3.The appellant pay the respondent’s costs of and incidental to the relisting on a party-party basis as agreed or taxed.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J

Final orders were made in this matter on 21 December 2023.
A Notice of Appeal was filed on 23 March 2023.
There is a partial stay of the final orders in place.
This matter comes before the court as a consequence of Order 7 of the Orders of her Honour Justice Brasch made 23 May 2023.
Order 7 provides:
In the event that the husband does not fulfil the condition of the stay set out in Order 6, the wife has liberty on 48 hours written notice to relist the matter for consideration of the continuation or discharge of the stays against orders set out in order…

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 Haines & Rader (No 8)

Details

AGLC: Haines & Rader (No 8) [2023] FedCFamC1F 466
Case: [2023] FedCFamC1F 466
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia (Division 1) in the case of Haines & Rader (No 8) involved a dispute between Ms. Haines, the Applicant, and Mr. Rader, the Respondent. The primary issue before the court was whether the stay of final orders, which was granted pending the completion of an appeal, should be discharged due to the appellant's failure to comply with the conditions set for the stay. Specifically, the court needed to determine whether the appellant's non-compliance with the order to file his Summary of Argument on the due date warranted the discharge of the stay.

Christie J, the presiding judge, examined the legal issues by first noting the conditions set by Justice Brasch for the continuation of the stay. The conditions required the appellant to prosecute his appeal expeditiously, including compliance with all relevant timeframes. The judge highlighted that the appellant had failed to comply with the requirement to file his Summary of Argument by the due date, which was a condition of the stay. The court considered the implications of this failure, including whether it constituted a breach of the stay's conditions. Furthermore, the court deliberated on the discretion to extend time for filing the Summary of Argument and the circumstances under which such an extension might be granted.

In reaching a decision, Christie J concluded that the appellant's failure to comply with the stay conditions warranted the relisting of the matter. However, the judge decided to dismiss the application for the discharge of the stay on the condition that if the appeal's hearing date were vacated on the appellant's application, the stay would be discharged. The judge also noted that the appeal was still scheduled to proceed as originally planned, and thus the wife could not claim any delay due to the appellant's actions. Finally, the court declined the wife's request to amend an order relating to the proceeds of sale of a property, finding no justification for changing the existing order.

In summary, the court dismissed the application to discharge the stay, ordered the appellant to pay the respondent's costs of the relisting, and maintained the original conditions of the stay pending the outcome of the appeal.

Orders