Kent and Kent (No 2) - [2017] FamCA 229

FAMILY COURT OF AUSTRALIA

KENT & KENT (NO 2)

[2017] FamCA 229

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Where the Husband has commenced proceedings in Papua New Guinea – Where the Husband has appealed orders restraining him from continuing proceedings in Papua New Guinea – Where the Husband seeks proceedings be stayed pending the determination of an appeal to the Full Court – Application for stay dismissed.

Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556
Bele & Vaughan [2011] FamCA 724
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

APPLICANT:

Ms Kent

RESPONDENT:

Mr Kent

FILE NUMBER:

BRC

11392

2016

DATE DELIVERED:

13 April 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

12 April 2017

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Mr Wilson as solicitor advocate

SOLICITOR FOR THE APPLICANT:

HopgoodGanim Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ferraro

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders

The application for a stay of the proceedings commenced by the applicant in this Court, file number BRC 11392/2016 pending the determination of the appeal commenced by the respondent in respect of the order made on 20 January 2017 is dismissed.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Kent (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11392 of 2016

Ms Kent

Applicant

And

Mr Kent

Respondent

REASONS FOR JUDGMENT

The applicant commenced substantive proceedings in this Court but is the respondent to the current application before me today.
On 20 January 2017 I made the following orders:
(1)The application by the respondent for a stay of 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 Kent and Kent (No 2)

Details

AGLC: Kent and Kent (No 2) [2017] FamCA 229
Case: [2017] FamCA 229
Decision Date: 13 April 2017

CaseChat Overview and Summary

In the matter of *Kent and Kent (No 2)*, Justice Carew of the Supreme Court of Queensland considered an application for a stay of proceedings. The applicant sought to halt proceedings in the Supreme Court, file number BRC 11392/2016, pending the determination of an appeal initiated by the respondent concerning an order made on 20 January 2017.

The central legal issue before the Court was whether the proceedings commenced by the applicant in the Supreme Court should be stayed pending the outcome of the respondent's appeal.

Justice Carew dismissed the application for a stay. The Court's reasoning and the specific legal principles applied are not detailed in the provided text, beyond the ultimate decision to refuse the stay. The Court made orders regarding the costs of the application, directing that if the parties could not agree on a costs order within 21 days, they were to file written submissions on the issue within a further 14 days, with the matter to be determined in chambers unless otherwise contended. If the parties reached agreement on costs, they were at liberty to file joint minutes of consent.

Orders

Orders of the court

The application for a stay of the proceedings commenced by the applicant in this Court, file number BRC 11392/2016 pending the determination of the appeal commenced by the respondent in respect of the order made on 20 January 2017 is dismissed.

In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:

(a) Each party file within a further 14 days written submissions in respect of that issue; and

(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.

In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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