Kent and Kent (No 2)
[2017] FamCA 229
•13 April 2017
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 | of | 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 proceedings commenced by the applicant on 11 November 2016 (BRC 11392/2016) is dismissed.
(2)The respondent is restrained and an injunction hereby issues restraining him from commencing or continuing any proceedings, arising out of the marital relationship between himself and the applicant, in Papua New Guinea (in particular proceedings commenced in National Court of Justice at [B Town], Papua New Guinea on 20 October 2016 MC … (…)) save as required to seek recognition and/or enforcement of orders made by this Honourable Court.
The respondent filed a Notice of Appeal against those orders on 9 February 2017. The Appeal has been listed for hearing by the Full Court of the Family Court of Australia in the week commencing 17 July 2017.
On 6 March 2017 the respondent filed an Application in a Case seeking an order that “the proceedings commenced by the Respondent Wife in this Court, File Number BRC11392/2016 be stayed pending the determination of appeal commenced by the Applicant Husband in respect of the Orders made on 20 January 2017”. It is this application that is before me for determination today.
background
The applicant and respondent married in 1968 and moved to Papua New Guinea (“PNG”) that same year where they remained until the applicant returned to live in Australia in 1997. Before this Court, both parties say that separation occurred in October 2016.
The respondent is seventy-one and the applicant is seventy.
Proceedings have been commenced in both PNG and Australia.
The PNG court has been made aware of the orders made 20 January 2017 together with the respondent’s appeal and has, at the request of the applicant, adjourned the proceedings until after the determination of the appeal.
The parties own property in Australia including the following:
a)Real estate;
b)Bank accounts;
c)Motor vehicles;
d)Marina berth;
e)Jewellery;
f)Furniture and contents;
g)D Pension Funds; and
h)Possibly a fishing vessel.
The parties own property in PNG including the following:
a)The respondent’s eighty percent shareholding in Kent Limited;
b)Possible Insurance payout from QBE the subject of a reserved judgment in the PNG court;
c)Bank accounts;
d)Furniture and contents;
e)Fishing equipment; and
f)Possibly a fishing vessel (same as mentioned above).
Kent Limited owns property in PNG including real estate, plant and equipment, inventories, stock, debtors and intellectual property rights.
how to determine a stay application pending appeal
Rule 22.11 of the Family Law Rules 2004 (Cth) relevantly provides:
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, … any party may apply for an order staying the operation or enforcement ... of the order to which the appeal or application relates.
The granting of a stay pending the determination of an appeal to the Full Court is a discretionary decision which will be informed by matters such as:[1]
a)The bona fides of the person making the application for the stay;
b)Whether a successful appeal will be rendered nugatory if the stay is not granted;
c)The merits of the appeal;
d)Any delay in bringing the stay application;
e)When the appeal is likely to be determined; and
f)The balance of convenience.
[1] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; cfAnderson & Senior (Stay Appeal) (2013) FLC 93-556 (as to whether special or exceptional circumstances required at [34]; Bele & Vaughan [2011] FamCA 724; see also Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322 at [12] and Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349 at [19]
discussion
On first blush it appeared that the respondent was renewing an application which was already determined by me on 20 January 2017. However, Mr Ferraro, counsel for the respondent, clarified that what the respondent is intending to achieve by his application (perhaps inelegantly referred to as a ‘stay of the proceedings’) is the avoidance of unnecessary costs in the continued preparation of this matter in the event the appeal succeeds.
If there were evidence of what steps would be taken in progressing this case that would be rendered unnecessary if the proceedings were ultimately to proceed in PNG then I could better understand the purpose of the stay application. At its highest, Mr Ferraro submitted that there might be a risk that valuations undertaken in PNG may not be in admissible form if proceedings ultimately proceed in PNG rather than in Australia. I must admit struggling to comprehend that submission. Mr Ferraro was not greatly assisted by the respondent’s affidavit which said merely:
7. A stay of the proceedings commenced by Judy in this Court should be granted pending my appeal, as the cost of continuing the proceedings prior to the decision of the appeal, will incur significant expenses by both parties, which would be unnecessary in the event that the appeal I am seeking is granted.
It was frankly conceded by Mr Ferraro that there was no evidence before me of any costs that might be lost if the parties continue to prepare their respective cases and the appeal succeeds. Indeed, given that there is property in both countries that may need to be valued, I can see no reason why the parties could not continue down that path. Likewise, disclosure of relevant material will be necessary whether the proceedings are heard in Australia or PNG and there seems to be no reason why that should not progress. This matter will not be placed in the docket of a Judge for trial directions at any time in the near future and certainly not before the hearing of the appeal.
It was not suggested by the applicant that the respondent lacked bona fides or that the grounds of the appeal were spurious. The application was brought promptly and the appeal will be heard in July.
I am not persuaded that the appeal will be rendered nugatory if the stay is not granted nor am I persuaded that the balance of convenience favours the granting of the stay.
Accordingly, I propose to dismiss the application for a stay.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 April 2017.
Associate:
Date: 13 April 2017
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