Keighley & Keighley (No 3)

Link copied
Case Copied 15 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Keighley & Keighley (No 3) [2023] FedCFamC1F 219

File number(s): SYC 6003 of 2016
Judgment of: CHRISTIE J
Date of judgment: 30 March 2023
Catchwords:

FAMILY LAW – STAY APPLICATION – Where final parenting and property orders were made that provided the children live with the wife and spend supervised time with the husband – Where the husband appeals and seeks a stay of those orders.

FAMILY LAW – APPLICATION FOR ENFORCEMENT – Where the wife seeks orders for enforcement of a property order – Where the husband seeks a stay of that same order – Where the husband will not be prejudiced with an order providing for part enforcement.

Legislation: Family Law Act 1975 (Cth), s 117
Cases cited:

Aldridge & Keaton (Stay Application) [2009] FamCAFC 106

Clemett & Clemett (1981) FLC 91-013

Trahn & Long (No 2) [2008] FamCAFC 194
Division: Division 1 First Instance
Number of paragraphs: 42
Date of hearing: 23 March 2023
Place: Sydney
Counsel for the Applicant: Litigant in Person
Counsel for the Respondent: Ms Windsor
Solicitor for the Respondent: Hotop Family Lawyers
Solicitor for the Respondent: Mr RR, SS Lawyers

ORDERS

SYC 6003 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR KEIGHLEY

Applicant
AND:

MS KEIGHLEY

Respondent
AND: SS LAWYERS
Intervener

order made by:

CHRISTIE J

DATE OF ORDER:

30 March 2023

THE COURT ORDERS THAT:

1.Within seven days the parties do all acts and things and signs all documents necessary to distribute the monies held in the NAB controlled monies account as follows:

(a)In payment of the sum of $120,378 to the wife;

(b)In payment of the sum of $27,212.05 to SS Lawyers;

(c)In payment of the sum of $106,230.70 to the husband;

(d)The remaining balance be held pending final determination of the husband’s appeal.

2.The husband’s application for stay is otherwise dismissed.

3.The wife’s application for enforcement is otherwise dismissed.

4.The husband pay the wife’s costs of and incidental to the application for enforcement in the amount of $1,782.00.

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 Keighley & Keighley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CHRISTIE J:

  1. This matter came before the Court for final parenting and property proceedings. Judgment…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Keighley & Keighley (No 3) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FedCFamC1F 219
Decision Date

CaseChat Overview and Summary

The case of Keighley & Keighley (No 3) involves a dispute between the husband and wife, with the wife seeking enforcement of certain property and parenting orders, and the husband seeking a stay of those orders pending the outcome of an appeal. The wife’s enforcement application targets the execution of Order 20, which mandates the distribution of the parties' controlled monies account. The husband's stay application requests a halt on both the property and parenting orders, with a specific focus on Order 20 due to the recent distribution of the controlled monies account. The wife opposed the husband's stay application and sought her costs for the enforcement application and her response to the stay application.

The legal issues before the court encompassed whether the husband had a legitimate basis to seek a stay of the orders pending appeal, and if the wife was entitled to her costs for the enforcement application and her opposition to the stay. The court considered the principles governing the grant of a stay, including the necessity for the applicant to establish a proper basis, the benefit of the judgment to the prevailing party, and the balance of convenience between the parties. Additionally, the court examined the provisions of the Family Law Act 1975 (Cth) concerning costs orders and the factors that influence such decisions.

The court found that the husband's stay application was made in good faith and without undue delay. However, it concluded that the mere filing of an appeal did not automatically warrant a stay. The court considered the risk of rendering the appeal futile if a stay was granted and assessed the likelihood of the husband succeeding on the appeal. Given the short duration for which a stay would operate, the court decided not to grant the stay. Regarding the wife’s costs application, the court noted that while each party generally bears their own costs, it may order one party to pay the other's costs if justified. Considering the husband's failure to comply with the orders and the wife's successful enforcement application, the court granted her costs.

The court ordered that the Registrar of the Federal Circuit and Family Court of Australia sign the Customer Letter of Authority to the National Australia Bank in substitution for the husband, and that the husband pay the wife's costs of the enforcement application and her response to the stay application, amounting to $1,782.00. The husband's stay application was dismissed, and no stay was granted on the property and parenting orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The independent children’s lawyer (“the ICL”) appeared when the matter was listed as a courtesy to the Court and informed the Court that the ICL had filed a submitting appearance in the appeal. The ICL suggested that the change to the current parenting regime in the period between this stay application and the proposed listing of the appeal was not very significant. I excused the ICL’s further attendance.BACKGROUND Interim orders relating to parenting were made on 20 May 2019 (“the interim orders”). Order 5 of those orders provides:That commencing on the weekend following the satisfaction of obligations pursuant to Order 4 but in any event, not before Saturday 8 June 2019 and for 3 consecutive weekends in a 4 weekly cycle thereafter, the children spend supervised time with the father 1 day per weekend as can be accommodated by the contact supervision service for a period of up to 4 hours. The orders of 8 February 2023 (“the final orders”) changed that parenting regime in so far as Order 4(a) said that between the date of hearing and 3 August 2023 the time between the children and the father would be as follows:The children spend time with [Mr Keighley] (“the father”), supervised by [G Contact Centre] or, if unavailable, such other professional supervision service (“the supervision service”) selected by the mother, as follows:(a) For a period of six months from the date of these orders, and commencing on the first Saturday after the making of these orders – for three hours on Saturday each alternate weekend at times nominated by the supervision service;… The parties both agreed that the time the father had been exercising under the existing orders was not two weekends in three as is permitted by those orders but less frequent. The father said that he would generally exercise time once a fortnight but would take advantage of the existence of an order allowing two weekends in three to permit him to see the children on special occasions. He also noted that the interim order provides that time may occur on either day of the weekend while the final orders set the day. The husband had originally sought a stay of all property orders but accepted that the superannuation split had occurred. He therefore sought a stay of Order 20 which provided for the distribution of the parties’ controlled monies account and read as follows:The father and mother do all acts and things and sign all documents necessary to close the NAB controlled monies account in their joint names ending in […85] and apply the balance as follows:(a) $185,258.25 to the mother;(b) $133,442.75 to the father; and(c) any balance be divided 58 per cent to the mother and 42 per cent to the father. The wife sought her costs of the enforcement and her response to the stay application. The husband opposed the wife’s application for enforcement and the making of a costs order.THE LAW A party may not anticipate that he or she will necessarily obtain a stay upon the filing of a Notice of Appeal. Each case will turn on its facts but the applicable principles, derived from the jurisprudence in particular the decision in Trahn & Long (No 2) [2008] FamCAFC 194 at [38], is as follows:(a)The onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;(b)A person who has obtained a judgment is entitled to the benefit of that judgment;(c)The person who has obtained a judgment is entitled to presume the judgment is correct;(d)The mere filing of an appeal is insufficient to ground a stay;(e)The bona fides of the applicant;(f)A stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;(g)A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay; (h)Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case; and(i)The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stayfor a short period of time.

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

The wife sought costs against the husband. Each party usually pays his or her own legal costs but, where there are justifying circumstances, the Court may order that one party pay the other party’s costs. In considering the costs application it is necessary to have regard to the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”):(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.(2A)In considering what order (if any) should be made under subsection (2), the court (a) the financial circumstances of each of the parties to the proceedings;(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and(g) such other matters as the court considers relevant.CONSIDERATIONThe wife’s Enforcement Application The wife seeks the following order in her enforcement application:1.That a Registrar of the Federal Circuit and Family Court of Australia sign the Customer Letter of Authority to the National Australia Bank annexed at [MK-11] to the Affidavit of [Ms Keighley] affirmed 1 March 2023, in substitution for the Respondent.2.That the Respondent pay the Applicant’s costs of and incidental to this Application in the amount of $1,782.00. The wife seeks to enforce Order 20 of the orders of 8 February 2023. I have set this out above.The husband’s Stay Application The husband seeks a stay of the property and parenting orders. I accept that the husband’s application is made bona fide. I accept that there has been no delay in the making of the application and the husband has prosecuted his application with appropriate diligence. The appeal is likely to be listed in the sittings at the end of May 2023. This is significant since the period for which a stay would operate is not lengthy.