McIntosh and Anderson (No. 2) - [2013] FamCA 513

FAMILY COURT OF AUSTRALIA

MCINTOSH & ANDERSON (NO. 2)

[2013] FamCA 513

FAMILY LAW – ORDERS – Stay – Where the wife seeks property orders pursuant to the Family Law Act 1975 (Cth) (“the Act”) – where the husband opposes the wife’s application on the basis that the parties were divorced in Country B and the wife has not sought leave to institute proceedings out of time pursuant to s 44(3) of the Act – where the orders the subject of the stay application stem from a determination that the Country B divorce did not constitute a “divorce order” for the purposes of the Act and, in particular, s 44(3) – where the husband has filed a Notice of Appeal in respect of that decision – where the husband seeks a stay of the orders providing for the progression of the wife’s s 79 application – whether stay should be granted – where the husband has an arguable case on the appeal – where the appeal would be rendered nugatory if stay not granted – further progression of the wife’s s 79 claim stayed pending the outcome of the husband’s appeal.

Family Law Act 1975 (Cth)

Jackson & Baylen (2009) FamCA FC 131
Savage and Hodgson (1982) FLC 91-281
Taffa & Taffa (Summary Dismissal) [2012] FamCA 181

APPLICANT:

Mr Anderson

RESPONDENT:

Ms McIntosh

FILE NUMBER:

ROC

367

2012

DATE DELIVERED:

1 July 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

1 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carew

SOLICITOR FOR THE APPLICANT:

South & Geldard

COUNSEL FOR THE RESPONDENT:

Mr Alexander

SOLICITOR FOR THE RESPONDENT:

Duffield & Associates Solicitors

Orders

That any further step in the progress of the Initiating Application filed 10 July 2012 be stayed pending the outcome of the appeal filed 11 April 2013.
That the costs of and incidental to the Application in a Case filed 13 June 2013 be adjourned to the trial if the Appeal is unsuccessful, or to a date to be fixed if the Appeal is successful.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McIntosh & Anderson (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 BRISBANE

FILE NUMBER: ROC 367 of 2012

Mr Anderson

Applicant

And

Ms McIntosh

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 20 March 2013, I made orders and delivered reasons in respect of an application for settlement of property relating to a divorce obtained in Country B according to the law of Country B. The essential dispute before me on that occasion was whether the wife needed leave, pursuant to section 44(3) of the Family Law Act 1975 (Cth) (“the Act”), to bring the application. That, in turn, involved a consideration of the terms “divorce” and “divorce order” within the meaning of the Act.
As I said in the reasons, the contention by the wife…

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.

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Details

Case: [2013] FamCA 513
Decision Date

CaseChat Overview and Summary

In *McIntosh & Anderson (No. 2)*, the Family Court of Australia considered an application by the husband for a stay of proceedings. The wife had sought property orders under the *Family Law Act 1975* (Cth), but the husband opposed this, arguing that a divorce obtained in Country B did not constitute a "divorce order" for the purposes of the Act, and therefore the wife required leave to institute proceedings out of time under s 44(3). The court had previously determined that the Country B divorce did not require the wife to seek leave, and the husband had filed a Notice of Appeal against this decision.

The primary legal issue before the court was whether to grant a stay of the orders that allowed the wife's property application to proceed, pending the outcome of the husband's appeal. This required the court to assess whether the husband had an arguable case on appeal and whether the appeal would be rendered nugatory if a stay was not granted. The court also considered the principles governing applications for a stay, as outlined in *Jackson & Balen*.

Justice Murphy applied the principles from *Jackson & Balen*, noting that the onus was on the applicant for the stay, but exceptional circumstances were not required. The court found that the husband had an arguable case, given the existing state of the law and differing judicial interpretations. Crucially, the court accepted that the appeal would be rendered nugatory if a stay was not granted, as the success of the appeal would determine the wife's entitlement to bring the property application, potentially avoiding the need for trial preparation and expense.

Consequently, the court ordered that any further step in the progression of the wife's Initiating Application be stayed pending the outcome of the husband's appeal. The costs of the application were adjourned to be determined later, depending on the success of the appeal.

Orders