Luna & Luna (No 2) - [2022] FedCFamC1F 17

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Luna & Luna (No 2) [2022] FedCFamC1F 17

File number(s): BRC 11516 of 2019

Judgment of: HOGAN J

Date of judgment: 21 January 2022

Catchwords: FAMILY LAW – PROPERTY – Application for stay of interim orders pending appeal – Where the appeal would be rendered nugatory if a stay were not granted – Where a stay is granted pending appeal.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Anderson & Senior (Stay Appeal) (2013) FLC 93-556; [2013] FamCAFC 152

Jackson & Balen [2009] FamCAFC 131

Trahn & Long (No. 2) [2008] FamCAFC 194

Division: Division 1 First Instance

Number of paragraphs: 5

Date of hearing: 21 January 2022

Place: Brisbane

Counsel for the Applicant: Mr Jordan

Solicitor for the Applicant: Best Wilson Buckley Family Law

Counsel for the Respondent: Mr Brown

Solicitor for the Respondent: Alroe Somers & O’Sullivan
ORDERS

BRC 11516 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LUNA

Applicant

AND:
MR LUNA

Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

21 JANUARY 2022

IT IS ORDERED THAT:
1.Orders 3, 6, 7, 8, 9, 10, 11, 12 and 13 of the Orders made on 23 December 2021 are stayed pending the determination of the Appeal filed by the Applicant on 10 January 2022.
2.Pending determination of the Applicant’s Appeal filed on 10 January 2022, any documents produced to the Court by the Applicant in her capacity as the Director of B Pty Ltd pursuant to the subpoena directed to B Pty Ltd (as amended by Order 8 of the Orders made on 23 December 2021) and any documents produced under subpoena filed 31 December 2021 directed to C Bank and to National Australia Bank, shall be sealed such that no party, their legal representative or any officer of the Court shall be at liberty to view, inspect or copy the documents.
3.Costs of and incidental to the appearance today are reserved.

AND IT IS FURTHER ORDERED THAT
4.The final hearing of this matter listed for three (3) days commencing on 7 February 2022 is vacated.
5.The pre-trial Case Management Hearing listed at 9.30 am on 24 January 2022 is vacated.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Luna & Luna has…

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 Luna & Luna (No 2)

Details

AGLC: Luna & Luna (No 2) [2022] FedCFamC1F 17
Case: [2022] FedCFamC1F 17
Decision Date

CaseChat Overview and Summary

In Luna & Luna (No 2), the Federal Circuit and Family Court of Australia considered an application for a stay of interim orders pending appeal. The case involved Ms. Luna, the applicant, and Mr. Luna, the respondent, in a family law matter. The primary legal issue was whether the court should grant a stay of certain interim orders pending the outcome of the applicant's appeal against those orders. The court also needed to determine whether documents produced under subpoena should remain sealed pending the appeal's determination.

The court found that there was no undue delay in bringing the application for a stay, and the appeal was lodged in good faith. The applicant argued that if the stay were not granted, the appeal would be rendered nugatory, which the court considered a significant factor in favour of granting the stay. The court noted that the respondent had not presented any evidence of specific prejudice that would outweigh the importance of allowing the appeal to proceed. The court concluded that the appeal had an arguable case and that the appeal's success could potentially nullify the interim orders if a stay was not granted.

Accordingly, the court granted the application for a stay of certain orders pending the outcome of the appeal. Additionally, the court ordered that documents produced to the court under subpoena should remain sealed to prevent any party from viewing, inspecting, or copying them. The court also reserved the costs of the application and vacated the scheduled final hearing and pre-trial case management hearing. The orders ensured that the appeal could proceed without prejudicing the applicant’s right to challenge the interim orders effectively.

Orders