KINGSTON & FIELD - [2020] FamCA 303

FAMILY COURT OF AUSTRALIA

KINGSTON & FIELD

[2020] FamCA 303

FAMILY LAW – PRACTICE AND PROCEDURE – STAY PENDING PROPERTY APPEAL – Where the husband seeks that orders made 21 November 2019 be stayed – Where consideration of applicable principles – Where a stay order conditional upon a party capital payment to the wife was appropriate – Where order made accordingly.

Family Law Rules 2004 (Cth) r 22.11

Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548
Jackson & Balen [2009] FamCAFC 131

APPLICANT:

Mr Kingston

RESPONDENT:

Ms Field

FILE NUMBER:

PAC

2095

2014

DATE DELIVERED:

30 April 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

1 April 2020

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

Mr Kingston

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Pty Ltd

Orders

That the orders made 21 November 2019 be stayed pending further order on condition that within eight weeks from this date the husband pay to the wife, or as she may direct in writing, the sum of $500,000.
That in default of the payment provided for in Order 1 being made by the due date, the stay order shall stand discharged.
That the costs of the stay application be reserved until finalisation of the husband’s Appeal.

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 Kingston & Field 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 PARRAMATTA

FILE NUMBER: PAC 2095 of 2014

Mr Kingston

Applicant

And

Ms Field

Respondent

REASONS FOR JUDGMENT

On 21 November 2019 reasons for judgment were delivered and orders were made in respect to the competing property proposals of the primary application between the applicant wife and the respondent husband.
Subsequently, the respondent husband lodged a Notice of Appeal in respect of those orders. On 18 March 2020 the husband lodged a Further Amended Notice of Appeal.
As a consequence of the Notice of Appeal, the husband in his Application in a Case filed 4 February 2020 sought a stay of the operation of the orders made 21 November 2019. The application for stay is supported by the husband’s affidavit filed 4 February 2020 together with his supplementary affidavit filed 17 February 2020.
The wife opposes the application for stay and seeks its dismissal. She relies upon her Response filed 29 March 2020 to the husband’s Application in a Case and her affidavit filed 29 March 2020 and written submissions filed 31 March 2020: Exh “A”.
The orders made…

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 KINGSTON & FIELD

Details

AGLC: KINGSTON & FIELD [2020] FamCA 303
Case: [2020] FamCA 303
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the matter of *Kingston & Field*, Foster J considered an application by the husband seeking a stay of property orders made on 21 November 2019. The dispute concerned the husband's desire to suspend the operation of these orders pending the finalisation of his appeal.

The central legal issue before the court was whether to grant a stay of the existing property orders. This required the court to consider the principles applicable to such applications in the context of family law proceedings and property appeals.

Foster J determined that a stay of the orders would be appropriate, but it should be conditional. The court applied the principles governing the grant of stays, balancing the husband's right to pursue his appeal with the need to provide some security or interim relief to the wife. The court reasoned that a partial capital payment by the husband to the wife would adequately address the wife's position while the appeal was pending.

Accordingly, Foster J ordered that the property orders made on 21 November 2019 be stayed, provided that the husband paid the sum of $500,000 to the wife within eight weeks. In default of this payment, the stay would be discharged. The costs of the stay application were reserved until the finalisation of the husband's appeal.

Orders

Orders of the court

That the orders made 21 November 2019 be stayed pending further order on condition that within eight weeks from this date the husband pay to the wife, or as she may direct in writing, the sum of $500,000.

That in default of the payment provided for in Order 1 being made by the due date, the stay order shall stand discharged.

That the costs of the stay application be reserved until finalisation of the husband’s Appeal.

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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