Holden and Dunlop (No.2) - [2016] FCCA 2854

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLDEN & DUNLOP (No.2)

[2016] FCCA 2854

Catchwords:
FAMILY LAW – Application by the husband for a stay of orders for sole occupation – husband fails to appear at the hearing of his stay application without any explanation – email sent by husband (a solicitor acting for himself) to a Registrar requesting different date for hearing to be allocated to suit his own convenience – proper procedure for seeking an adjournment of a hearing – criteria for stay discussed – application for stay dismissed.

Legislation:

Family Law Act 1975, Family Law Rules 2004, r. 22.11

Cases cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Buljubasic& Buljubasic [1999] FamCA 474
Aldridge & Keaton [2009] FamCAFC 229
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Trahn & Long (No.2) [2008] FamCAFC 194 at 38
Helbig & Rowe (No.2) [2012] FamCAFC 174
Dees & Dees (2010) FMCAfam 682

Applicant:

MS HOLDEN

Respondent:

MR DUNLOP

File Number:

LEC 432 of 2016

Judgment of:

Judge Willis

Hearing date:

20 October 2016

Date of Last Submission:

20 October 2016

Delivered at:

Cairns

Delivered on:

20 October 2016

REPRESENTATION

Solicitors for the Applicant:

McVittie Legal

Solicitors for the Respondent:

No appearance

ORDERS

The Application by the Husband for an adjournment of the Application for Stay is dismissed.
That Order 3 (application for stay) of the Application in a Case filed by the Husband on 17 October 2016 is dismissed.

Costs

NOTING THAT the Wife the makes an application for costs of and incidental to today’s proceedings;
(a)The Wife is to file and serve written submissions, a minute of orders sought (including reference to the relevant scale) and any affidavit relating to the issue of costs within 14 days of the date of this Order.
(b)The Husband is to file and serve submissions in reply, a minute of orders sought (including reference to the relevant scale) and any affidavit relating to the issue of costs within 14 days of being served with the Wife’s submissions.
In the event either party require an oral hearing in relation to the issue of costs, they are to indicate in their submissions, otherwise the issue of costs will be determined on the papers.

Future Directions

The Wife is to file and serve the foreshadowed Amended Initiating Application by no later than 31 October 2016.

Response to Initiating Application filed on 12 September 2016

As to the interim orders sought by the Respondent Husband filed on 12 September 2016, set out at 5b (Orders 1, 2, 3, 5 and 6), the Husband is to file and serve written submissions by no later than 7 November 2016.
The Wife is to file and serve written submissions in response by no later than 21 November 2016 to include the interim Orders sought by the Husband set out at Orders 5 and 6 of his Response filed on 12 September 2016.

Application in Case filed on 29 September 2016 by the Husband

As…

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: [2016] FCCA 2854
Decision Date: 20 October 2016

CaseChat Overview and Summary

In the matter of *Holden and Dunlop (No.2)*, Judge Willis considered an application by the Husband for an adjournment of his own application for a stay. The Wife also made an application for costs.

The primary legal issue before the court was whether to grant the Husband's application for an adjournment of his stay application. The court was also required to determine the appropriate procedure for dealing with the Wife's application for costs and to set future directions for the filing of submissions and applications in the ongoing proceedings.

Judge Willis dismissed the Husband's application for an adjournment of his application for a stay. The court then made detailed orders regarding the filing of written submissions by both parties concerning various interim orders sought by the Husband and the Wife's foreshadowed Amended Initiating Application. The court indicated that it would allocate a hearing date for these matters upon compliance with the directions given.

Orders

Orders of the court

The Application by the Husband for an adjournment of the Application for Stay is dismissed.

That Order 3 (application for stay) of the Application in a Case filed by the Husband on 17 October 2016 is dismissed.

Costs

NOTING THAT the Wife the makes an application for costs of and incidental to today’s proceedings;

(a) The Wife is to file and serve written submissions, a minute of orders sought (including reference to the relevant scale) and any affidavit relating to the issue of costs within 14 days of the date of this Order.

(b) The Husband is to file and serve submissions in reply, a minute of orders sought (including reference to the relevant scale) and any affidavit relating to the issue of costs within 14 days of being served with the Wife’s submissions.

In the event either party require an oral hearing in relation to the issue of costs, they are to indicate in their submissions, otherwise the issue of costs will be determined on the papers.

Future Directions

The Wife is to file and serve the foreshadowed Amended Initiating Application by no later than 31 October 2016.

Response to Initiating Application filed on 12 September 2016

As to the interim orders sought by the Respondent Husband filed on 12 September 2016, set out at 5b (Orders 1, 2, 3, 5 and 6), the Husband is to file and serve written submissions by no later than 7 November 2016.

The Wife is to file and serve written submissions in response by no later than 21 November 2016 to include the interim Orders sought by the Husband set out at Orders 5 and 6 of his Response filed on 12 September 2016.

Application in Case filed on 29 September 2016 by the Husband

As to the Application in a Case filed by the Husband on 29 September 2016, as to Orders sought (Orders 3 and 4) the Husband is directed to file and serve written submissions by no later than 7 November 2016.

The Wife is to file and serve written submissions in response by no later than 21 November 2016.

10.

As to the Application in a Case by the Husband filed on 17 October 2016, as to Orders sought (Orders 1 and 2) the Husband is directed to file and serve written submissions by no later than 7 November 2016.

11.

The Wife is to file and serve written submissions in response by no later than 21 November 2016.

12.

Upon compliance with the Orders herein, the Court will allocate a date for hearing of these matters.

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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