JRD v JLB
[2012] WASCA 119
•12 JUNE 2012
JRD -v- JLB [2012] WASCA 119
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 119 | |
| THE COURT OF APPEAL (WA) | 12/06/2012 | ||
| Case No: | CACV:13/2012 | 1 JUNE 2012 | |
| Coram: | PULLIN JA | 1/06/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JRD JLB |
Catchwords: | Appeal Application for a suspension order Turns on own facts |
Legislation: | Nil |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JRD -v- JLB [2012] WASCA 119 CORAM : PULLIN JA HEARD : 1 JUNE 2012 DELIVERED : 1 JUNE 2012 PUBLISHED : 12 JUNE 2012 FILE NO/S : CACV 13 of 2012 BETWEEN : JRD
- Appellant
AND
JLB
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : MONCRIEFF J
Citation : B and D [2012] FCWA 9
File No : PTW 3688 of 2009
Catchwords:
Appeal - Application for a suspension order - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
(Page 3)
1 PULLIN JA: The appellant made an application dated 18 May 2012 for a stay of orders made by Moncrieff J in the Family Court of Western Australia on 10 February 2012 concerning parenting, property and ancillary matters. It was heard on 1 June 2012. The application was dismissed with reasons to follow. These are the reasons.
2 The parenting order permits the appellant to spend time with the children for two hours per fortnight but only under supervision. The property order provides for the proceeds of sale of certain land in Claremont to be split after various deductions, 70% to the respondent and 30% to the appellant. An ancillary order provided that the independent children's lawyer be at liberty to apply to the court for contravention orders if that be necessary.
3 The appellant in the appellant's case, seeks orders in lieu that:
(a) he be permitted to spend a longer time with the children and to be unsupervised;
(b) a fifty/fifty split of the proceeds of sale of the property; and
(c) the independent children's lawyer be 'excused' from any further hearing.
4 Pending the hearing of the appeal, the appellant made an application for:
(a) Reinstatement of Court Orders made 26/2/10 for 2 days and nights per week, unsupervised with the children ...
(b) Ms Young, ICL be excused from further hearings.
(c) The [Claremont] property ... be taken off the market/or any sale proceeds minus the subdivision costs be placed in a trust account until the appeal is decided.
5 It is possible that the reference to orders made on 26 February 2010 are that the father be permitted to spend time with the children on certain days of the week without supervision. This is a little unclear because the appellant's affidavit only exhibits parts of orders rather than the full document showing the date.
6 An application for a stay may be made pursuant to r 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (and see r 3(1) (definition of 'interim order')).
(Page 4)
7 A stay order will not be made, save in special circumstances. The principles are set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. The onus is on the applicant to move the court to a favourable exercise of its discretion. Usually the first question that has to be considered is whether the appeal would be rendered nugatory if the stay or suspension order were not made.
8 This appeal will not be rendered nugatory if the stay is refused. If the appellant succeeds in setting aside the parenting orders then there will simply be some form of different access to the children with or without supervision, depending upon the order of the court. The property orders proceed on the basis that the property is being sold. The appellant consented to an order dated 17 August 2011 that the property be sold. The notice of appeal does not challenge that order. Further, the appellant concedes by his application that the respondent is entitled to at least 50% of the proceeds and yet by the stay application he wants the entire proceeds of sale placed into trust. There is no justification for such an order. The appellant is only concerned about the extra 20% which the order provides for. From the bar table the appellant advised that the Claremont property has been subdivided and that one of the subdivided lots has been sold for $734,000. The appellant advised that settlement of this lot would take place two weeks after the titles were issued and he anticipated that it would be about four weeks before this happened. The appellant also advised from the bar table that approximately $530,000 would have to be paid to a bank in discharge of a mortgage. From the net proceeds of $200,000, about $60,000 would have to be paid to meet other expenses, leaving about $140,000 to be split 70% to JLB and 30% to the appellant.
9 The appellant also advised from the bar table that the second subdivided lot was being offered on the market at $1,050,00. That means that if the appeal succeeded and the appellant succeeded in securing a 50/50 split of the proceeds, then an adjustment could be made from the proceeds of the sale of the second property.
10 Finally, the appellant wants an order that the independent children's lawyer be 'excused' from further hearing. The appellant in fact, wants the independent children's lawyer not to be 'excused' but excluded from further hearings because of unparticularised allegations against the independent children's lawyer. If the appellant is concerned about the independent children's lawyer's submissions during the course of the hearing of the appeal, it will be at that time that the appellant can raise any
(Page 5)
- proper objection. This is not an invitation for the appellant to raise other unparticularised allegations against the independent children's lawyer at the hearing.
11 The appeal will not in any respect be rendered nugatory if the appellant's present application is dismissed. As a result, there are no special circumstances justifying a stay of the judgment appealed against. For those reasons the application was dismissed.
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