Halkias & Pace (No 2) - [2021] FCCA 1128

FEDERAL CIRCUIT COURT OF AUSTRALIA
Halkias & Pace (No 2) [2021] FCCA 1128

File number(s): MLC 2969 of 2017

Judgment of: JUDGE BECKHOUSE

Date of judgment: 19 May 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders – where stay sought in relation to orders releasing the parties from the Harman undertaking in respect of an affidavit sworn by the Applicant – where a Notice of Appeal has been filed and expedition granted -where the parties have defamation proceedings before the County Court of Victoria - stay granted - costs reserved.

Legislation:
Family Law Act 1975 (Cth) s 121

Family Law Rules 2004 (Cth) rr 22.11(1), 22.11(2)

Federal Circuit Court Rules 2001 (Cth) r 29.04

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

EJK v TSLNo 2 [2006] FamCA 806, quoting Clemett & Clemett (1981) FLC 91-013

Medlow & Medlow [2016] FamCAFC 34

Number of paragraphs: 35

Date of hearing: 19 May 2021

Place: Wollongong

Counsel for the Applicant: Ms Kaiti

Counsel for the Respondent: Ms Collaris

Solicitor for the Applicant: Galea and Faustin Solicitors
ORDERS

MLC 2969 of 2017

BETWEEN:
MR HALKIAS

Applicant

AND:
MS PACE

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

19 MAY 2021

THE COURT ORDERS THAT:
1.The Orders made on 14 May 2021 be stayed until the determination of the appeal against those Orders.
2.Costs are reserved.

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 under the pseudonym Halkias & Pace (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT

These are settled reasons for judgment that were delivered ex tempore on 19 May 2021. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references included.
This is a judgment in the Application in a Case in relation to Ms Pace, who I will refer to as the Applicant, and Mr Halkias, who I will refer to as the Respondent.
The Applicant has filed an Application in a Case for the staying of the orders that were made by me on 14 May 2021: namely the Applicant seeks an order that the Orders made at 9.30 am on 14 May 2021 be stayed pursuant to Rule 29.04 of the Federal Circuit Court Rules.
The parties commenced a relationship in 2012 and separated in May 2015.
The parties’ child X was born in 2014 and is currently seven years old.
The proceedings commenced in the Melbourne Registry of the Federal Circuit Court on 28 March 2017 by way of the Respondent filing an Initiating Application seeking parenting orders.
In June 2017, final orders were made by Judge Stewart.
In November 2018, the Respondent filed an interim application with respect to an alleged section 121 of the Family Law Act…

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 Halkias & Pace (No 2)

Details

AGLC: Halkias and Pace (No 2) [2021] FCCA 1128
Case: [2021] FCCA 1128
Decision Date: 19 May 2021

CaseChat Overview and Summary

In *Halkias & Pace (No 2)*, heard before Beckhouse J in the Federal Circuit Court of Australia, the applicant, Mr Halkias, sought a stay of orders made on 14 May 2021, pending the determination of an appeal against those earlier orders. The respondent was Ms Pace.

The primary legal issue before the court was whether to grant a stay of the previous orders. This involved considering the principles governing the grant of interlocutory injunctions, specifically the balance of convenience and the likelihood of success on appeal, in the context of family law proceedings. The court also had regard to the provisions of section 121 of the *Family Law Act 1975* (Cth), which prohibits the publication of identifying details of family law proceedings.

Beckhouse J reasoned that a stay was appropriate in this instance. The court applied the principles for granting a stay, which typically involve assessing whether the applicant has an arguable case on appeal and whether the balance of convenience favours granting the stay. The court considered that the potential for irreparable harm to the parties if the previous orders were not stayed, coupled with the existence of an arguable ground of appeal, weighed in favour of granting the relief sought. The court also noted the importance of upholding the confidentiality provisions of section 121 of the *Family Law Act 1975* (Cth).

The court ordered that the orders made on 14 May 2021 be stayed until the determination of the appeal against those orders. Costs were reserved.

Orders

Orders of the court

MLC 2969 of 2017

BETWEEN:

MR HALKIAS

Applicant

AND:

MS PACE

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

19 MAY 2021

THE COURT ORDERS THAT:

1. The Orders made on 14 May 2021 be stayed until the determination of the appeal against those Orders.

2. Costs are reserved.

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

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.

File number(s):	MLC 2969 of 2017
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	19 May 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders – where stay sought in relation to orders releasing the parties from the Harman undertaking in respect of an affidavit sworn by the Applicant – where a Notice of Appeal has been filed and expedition granted -where the parties have defamation proceedings before the County Court of Victoria - stay granted - costs reserved.
Legislation:	Family Law Act 1975 (Cth) s 121 Family Law Rules 2004 (Cth) rr 22.11(1), 22.11(2) Federal Circuit Court Rules 2001 (Cth) r 29.04
Cases cited:	Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 EJK v TSLNo 2 [2006] FamCA 806, quoting Clemett & Clemett (1981) FLC 91-013 Medlow & Medlow [2016] FamCAFC 34
Number of paragraphs:	35
Date of hearing:	19 May 2021
Place:	Wollongong
Counsel for the Applicant:	Ms Kaiti
Counsel for the Respondent:	Ms Collaris
Solicitor for the Applicant:	Galea and Faustin Solicitors

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	19 MAY 2021