Leone and Cino (No 3) - [2015] FamCA 757

FAMILY COURT OF AUSTRALIA

LEONE & CINO (NO 3)

[2015] FamCA 757

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings pending appeal – where the appeal is against an order dismissing the husband’s application that the trial judge be disqualified for bias – interim orders made granting the stay on condition that the husband prosecutes his appeal expeditiously – interim orders made that the question of the costs of the wife and the Independent Children’s Lawyer be reserved

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Kelly & Kelly (1981) FLC 91-007
Molier & Van Wyk (1981) FLC 91-011

APPLICANT:

Mr Leone

RESPONDENT:

Ms Cino

INDEPENDENT CHILDREN’S LAWYER:

TJ Mulvany & Co

FILE NUMBER:

MLC

3172

2013

DATE DELIVERED:

15 September 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

7 September 2015

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Harris

SOLICITOR FOR THE RESPONDENT:

Lawcorp Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Tesoriero

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TJ Mulvany & Co

Orders

That until further order, the hearing of the husband’s Amended Application for Final Orders filed 20 January 2015 and the wife’s Amended Response to Initiating Application filed 10 February 2015 be stayed.
That the stay of the final hearing pursuant to order 1 hereof is conditional upon the husband doing all such acts and things as may be required to prosecute his Notice of Appeal dated 4 September 2015 expeditiously.
That in the event the husband does not fulfil the condition of the stay set out in order 2 hereof, the wife has liberty on 14 days’ notice to relist the matter before Johns J for a consideration of discharge of order 1 hereof.
That the question of the costs of the wife and the Independent Children’s Lawyer of and incidental to the husband’s application for a stay of the proceedings be reserved.
That the husband’s Application in a Case filed 7 September 2015 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leone & Cino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3172 of 2013

Mr Leone

Applicant

And

Ms Cino

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This matter was listed for final hearing before me on 7 September 2015. The proceedings relate to both parenting and financial matters and the matter was listed for four days.
The hearing had originally been listed to commence on 17 August 2015. However, as a result of the husband’s request for an adjournment of the final hearing due to ill-health, I listed the matter for mention before me on 13 August 2015. The husband did not appear at that mention hearing.
On 14 August 2015 I 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 Leone and Cino (No 3)

Details

AGLC: Leone and Cino (No 3) [2015] FamCA 757
Case: [2015] FamCA 757
Decision Date: 15 September 2015

CaseChat Overview and Summary

In the matter of *Leone and Cino (No 3)*, Johns J of the Family Court of Australia considered an application by the husband for a stay of final orders in divorce proceedings, pending the determination of his appeal against an earlier interlocutory decision. The wife opposed the stay.

The central legal issue before the court was whether the husband had established sufficient grounds to warrant a stay of the final hearing of the divorce proceedings. This required the court to assess the merits of the husband's intended appeal and consider the potential prejudice to both parties if the stay was granted or refused.

Johns J reasoned that a stay of final orders should only be granted in exceptional circumstances. His Honour considered the husband's prospects of success on appeal and the potential for injustice. Ultimately, the court ordered a stay of the final hearing, conditional upon the husband diligently prosecuting his appeal. The wife was granted liberty to relist the matter for consideration of the discharge of the stay if the husband failed to meet this condition. The husband's separate application was dismissed, and the costs of the wife and the Independent Children’s Lawyer were reserved.

Orders

Orders of the court

That until further order, the hearing of the husband’s Amended Application for Final Orders filed 20 January 2015 and the wife’s Amended Response to Initiating Application filed 10 February 2015 be stayed.

That the stay of the final hearing pursuant to order 1 hereof is conditional upon the husband doing all such acts and things as may be required to prosecute his Notice of Appeal dated 4 September 2015 expeditiously.

That in the event the husband does not fulfil the condition of the stay set out in order 2 hereof, the wife has liberty on 14 days’ notice to relist the matter before Johns J for a consideration of discharge of order 1 hereof.

That the question of the costs of the wife and the Independent Children’s Lawyer of and incidental to the husband’s application for a stay of the proceedings be reserved.

That the husband’s Application in a Case filed 7 September 2015 be otherwise dismissed.

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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