Lesley and Lesley (No 2) - [2015] FamCA 1194

FAMILY COURT OF AUSTRALIA

LESLEY & LESLEY (NO. 2)

[2015] FamCA 1194

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the husband seeks a stay of interim property orders pending determination of his appeal by the Full Court – Application for a stay dismissed in respect to payment of an interim property settlement to the wife – Conditional stay granted in respect to payment of the wife’s legal fees.

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131

APPLICANT:

Mr Lesley

RESPONDENT:

Ms Lesley

FILE NUMBER:

SYC

1313

2015

DATE DELIVERED:

10 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

10 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Murphy

SOLICITOR FOR THE APPLICANT:

Caroline Chung & Associates

COUNSEL FOR THE RESPONDENT:

Mr White SC

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

The Court Orders that:

The applicant husband’s oral application to amend his Application in a Case filed on 23 November 2015 to include a Stay of Order 1 of the Orders made on 23 October 2015, is granted.

The applicant husband is granted leave to rely upon the affidavit of Mr Lesley filed 9 December 2015.

The Court further Orders that:

The oral application made in Court today on behalf of the applicant husband by his counsel that Order 1 of the Orders made on 23 October 2015 be stayed pending determination of the Appeal is dismissed.

Order 2 of the Orders made on 23 October 2015 is stayed on the following conditions:
a. That on or before 23 January 2016 the applicant husband is to pay to the respondent wife’s solicitors an amount equivalent to the amount which he has paid for legal costs and/or disbursement related to these proceeding to date; and

b. That within 7 days of any monies being paid by or on the behalf of the applicant husband for legal costs and/or disbursements in relation to these proceedings, (but excluding the costs of any single expert) the applicant husband shall pay an equivalent amount to solicitors for the respondent wife to be applied solely to her legal costs and disbursements of these proceeding with characterisation of that sum to be reserved to the trial judge, those costs shall be payable on dollar for dollar basis.

The applicant husband’s costs of today be reserved pending determination of the Appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lesley & Lesley (No.2) 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 SYDNEY

FILE NUMBER: SYC 1313 of 2015

Mr Lesley

Applicant

And

Ms Lesley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter concerns an application by the husband in respect to interim property orders made by me on 23 October 2015, pending the determination of an appeal. In particular, by way of Application in a Case filed 23 November 2015, the husband sought…

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 Lesley and Lesley (No 2)

Details

AGLC: Lesley and Lesley (No 2) [2015] FamCA 1194
Case: [2015] FamCA 1194
Decision Date: 10 December 2015

CaseChat Overview and Summary

In the matter of *Lesley and Lesley (No 2)*, McClelland J of the Family Court of Australia considered applications made by the applicant husband concerning orders previously made on 23 October 2015. The dispute involved the husband's attempts to amend his application and seek a stay of certain orders, specifically Order 1 and Order 2, pending the determination of an appeal.

The primary legal issues before the court were whether the applicant husband should be granted leave to amend his application to include a stay of Order 1, and whether Order 1 and Order 2 should be stayed pending the determination of the appeal. The court also considered an application by the husband for leave to rely upon a specific affidavit.

McClelland J granted the husband's oral application to amend his application to include a stay of Order 1, and also granted leave to rely upon the filed affidavit. However, the court dismissed the husband's oral application for a stay of Order 1 pending the appeal. Order 2 was stayed, but only on the condition that the applicant husband pay to the respondent wife's solicitors an amount equivalent to his legal costs and disbursements to date by 23 January 2016. Furthermore, any future payments made by the husband for legal costs and disbursements (excluding single expert costs) were to be matched by an equivalent payment to the wife's solicitors for her legal costs and disbursements, payable on a dollar-for-dollar basis. The applicant husband's costs for the day were reserved pending the determination of the appeal.

Orders

Orders of the court

The Court Orders that:

The applicant husband’s oral application to amend his Application in a Case filed on 23 November 2015 to include a Stay of Order 1 of the Orders made on 23 October 2015, is granted.

The applicant husband is granted leave to rely upon the affidavit of Mr Lesley filed 9 December 2015.

The Court further Orders that:

The oral application made in Court today on behalf of the applicant husband by his counsel that Order 1 of the Orders made on 23 October 2015 be stayed pending determination of the Appeal is dismissed.

Order 2 of the Orders made on 23 October 2015 is stayed on the following conditions:

a. That on or before 23 January 2016 the applicant husband is to pay to the respondent wife’s solicitors an amount equivalent to the amount which he has paid for legal costs and/or disbursement related to these proceeding to date; and

b. That within 7 days of any monies being paid by or on the behalf of the applicant husband for legal costs and/or disbursements in relation to these proceedings, (but excluding the costs of any single expert) the applicant husband shall pay an equivalent amount to solicitors for the respondent wife to be applied solely to her legal costs and disbursements of these proceeding with characterisation of that sum to be reserved to the trial judge, those costs shall be payable on dollar for dollar basis.

The applicant husband’s costs of today be reserved pending determination of the Appeal.

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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