Hopkins & Elliott (No 2) - [2023] FedCFamC1F 275

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Elliott (No 2) [2023] FedCFamC1F 275

File number: SYC 5636 of 2021

Judgment of: AUSTIN J

Date of judgment: 17 April 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding – Stay of orders – Where the wife seeks the stay of an interlocutory injunction requiring her to vacate the former matrimonial home pending the determination of her appeal – Whether the wife’s appeal lacks ostensible merit – Where the wife requires, but has not sought, leave to appeal from the order – Where the appeal is prosecuted on a false premise – Where the balance of convenience does not favour the wife – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02

Cases cited:
Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220

Hopkins & Elliott [2023] FedCFamC1F 167

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681

Medlow & Medlow (2016) FLC 93-692

Division: Division 1 First Instance

Number of paragraphs: 29

Date of hearing: 17 April 2023

Place: Newcastle (via video link)

Counsel for the Applicant: Ms Windsor

Solicitor for the Applicant: Eddy Neumann Lawyers

Solicitor for the Respondent: Parker Law
ORDERS

SYC 5636 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HOPKINS

Applicant

AND:
MS ELLIOTT

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

17 APRIL 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 11 April 2023 is dismissed.
2.The Response to an Application in a Proceeding filed on 14 April 2023 is dismissed.

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 the pseudonym Hopkins & Elliott (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

On 17 March 2023, interim orders were made to determine multiple financial and other miscellaneous disputes between the parties.
One particular order resolved the parties’ contested possession of the former matrimonial home, which is owned by the husband but occupied by 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 Hopkins & Elliott (No 2)

Details

AGLC: Hopkins & Elliott (No 2) [2023] FedCFamC1F 275
Case: [2023] FedCFamC1F 275
Decision Date

CaseChat Overview and Summary

The matter of Hopkins & Elliott (No 2) involves a stay application filed by the wife against an interlocutory order made by the Court. The primary dispute centres around the wife's application to stay the execution of Order 2, which mandates that she vacate the former matrimonial home within one month. The case was heard in the Federal Circuit and Family Court of Australia.

The key legal issues the Court needed to address were whether the wife's stay application should be granted and whether her intended appeal had sufficient merit. The Court had to consider the presumption of correctness applied to discretionary primary judgments, the balance of convenience between the parties, and the requirements for leave to appeal an interlocutory injunction. The Court also needed to assess the prospects of the appeal and the lack of merit evident in the prosecution of the appeal on a false premise.

In delivering its judgment, the Court emphasised that the primary judgment was discretionary and thus presumed to be correct. It found that the wife's stay application was largely futile as it would leave the issue of possession of the former matrimonial home unregulated. The Court noted that even if the stay were granted, the husband, as the sole legal owner, would still have the legal right to eject the wife as a trespasser. Furthermore, the Court highlighted that the wife had not sought leave to appeal the interlocutory injunction, though she could do so orally or by amending her Notice of Appeal. Ultimately, the Court concluded that the wife's appeal lacked merit, and the original decision was unlikely to be wrong. Consequently, the stay application was refused.

The Court made no orders regarding the stay of Order 2, effectively allowing it to proceed as per the original judgment. The wife's application for leave to appeal was also dismissed due to the lack of merit in her appeal and the futility of the stay application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

However, the Court should also consider the prospects of the appeal and where the balance of convenience lies between the parties (Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685). Since the primary judgment was discretionary in nature, it must be strongly presumed to be correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 at 627).Evidence In support of her application filed on 11 April 2023, the wife relied upon:(a)her affidavit filed on 4 April 2023; (b)her second affidavit filed on 11 April 2023;(c)her third affidavit filed on 15 April 2023; and(d)the affidavit of her solicitor, Mr Neumann filed on 14 April 2023. The husband opposed the stay application by his Response to an Application in a Proceeding filed on 14 April 2023, supported by his affidavit filed on the same date, but he did not appear at the hearing and so his evidence is ignored. Much of the evidence led by the wife was immaterial to the outcome of the stay application.Disposition It may be accepted that, should the wife’s stay application be refused, then the execution of Order 2 by the husband would likely render her appeal from the order nugatory, but that consideration is outweighed by other factors. The most influential considerations for present purposes are the apparent futility of the stay application and the ostensible lack of merit of the wife’s intended appeal, which is evident from its prosecution on a false premise. The stay application seems futile because, even if Order 2 is stayed, the effect would be to leave the issue of possession of the former matrimonial home unregulated by any interlocutory order or injunction. In such a vacuum, the husband would be free to exercise his legal right as the sole legal owner of the property to eject the wife as a trespasser, using reasonable force if necessary. As was pointed out in the reasons for judgment published on 17 March 2023 (Hopkins & Elliott [2023] FedCFamC1F 167 at [17]–[19]), no interim order has ever been made granting the wife exclusive possession of the property. It was only Order 2 which gave the wife that protection for the limited period of one month. The appealed order is an interlocutory injunction and, hence, leave is required to appeal from it (s 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth); reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)). The wife has not sought such leave in her Notice of Appeal, but that is not fatal because she could make the application orally or amend the Notice of Appeal. Regardless, the grant of leave will require the wife to demonstrate to the Full Court that the original decision to make Order 2 is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the original decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	SYC 5636 of 2021
Judgment of:	AUSTIN J
Date of judgment:	17 April 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding – Stay of orders – Where the wife seeks the stay of an interlocutory injunction requiring her to vacate the former matrimonial home pending the determination of her appeal – Whether the wife’s appeal lacks ostensible merit – Where the wife requires, but has not sought, leave to appeal from the order – Where the appeal is prosecuted on a false premise – Where the balance of convenience does not favour the wife – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28 Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Cases cited:	Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 Hopkins & Elliott [2023] FedCFamC1F 167 Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 Medlow & Medlow (2016) FLC 93-692
Division:	Division 1 First Instance
Number of paragraphs:	29
Date of hearing:	17 April 2023
Place:	Newcastle (via video link)
Counsel for the Applicant:	Ms Windsor
Solicitor for the Applicant:	Eddy Neumann Lawyers
Solicitor for the Respondent:	Parker Law

SYC 5636 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR HOPKINS Applicant
AND:	MS ELLIOTT Respondent

order made by:	AUSTIN J
DATE OF ORDER:	17 APRIL 2023