Morse & Duarte (No 6) - [2024] FedCFamC1F 86

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morse & Duarte (No 6) [2024] FedCFamC1F 86

File number(s): SYC 737 of 2014

Judgment of: HARPER J

Date of judgment: 2 February 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application for stay of final property orders – Where final hearing proceeded on an undefended basis – Where no appearance by wife or second respondent at the final hearing – Where wife filed no material – Where no application for adjournment was made and no affidavit filed – Where final property orders required wife to vacate property within 14 days – Where wife argues that the appeal would be rendered nugatory if a stay were not granted – Where proposed grounds of appeal lack merit – Where the Court is not satisfied about bona fides of the application – Stay refused – Application dismissed – Wife ordered to pay the husband’s costs on a party/party basis

Legislation:
Constitution s 51

Family Law Act 1975 (Cth), s 79, 106A

Judiciary Act 1903 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.56

Real Property Act 1900 (NSW) s 42

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

Morse & Duarte (No 5) [2024] FedCFamC1F 7

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 2 February 2024

Place: Sydney

Solicitor for the Applicant: Mr Gittoes-Caesar of Lander & Rogers

First Respondent: Litigant in person

Second Respondent: No appearance
ORDERS

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MORSE

Applicant

AND:
MS DUARTE

First Respondent

MR TOLMAN

Second Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Respondent Wife (“wife”) for a stay of the orders dated 18 January 2024 is dismissed.
2.Within 28 days of the date of these orders, the wife pay the Applicant Husband’s costs in the amount of $1500 plus GST.

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 Morse & Duarte has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:

These are property proceedings between the applicant husband, Mr Morse (“the husband”) and the respondent…

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 Morse & Duarte (No 6)

Details

AGLC: Morse & Duarte (No 6) [2024] FedCFamC1F 86
Case: [2024] FedCFamC1F 86
Decision Date: 2 February 2024

CaseChat Overview and Summary

Morse & Duarte (No 6) involved an application for a stay of final property orders by Ms Duarte, the wife, against Mr Morse, the husband. The final hearing had proceeded on an undefended basis, with neither Ms Duarte nor the second respondent, Mr Tolman, appearing or filing any material. Ms Duarte did not seek an adjournment or file an affidavit, and final property orders were made requiring her to vacate the property within 14 days. Ms Duarte argued that the appeal would be rendered nugatory if a stay were not granted, but the court found that the proposed grounds of appeal lacked merit. Additionally, the court was not satisfied about the bona fides of the application.

The court dismissed the application for a stay and ordered Ms Duarte to pay Mr Morse’s costs on a party/party basis. The Federal Circuit and Family Court of Australia found that Ms Duarte's application for a stay of the final property orders was without merit, and the lack of material filed or appearance at the final hearing further undermined the application's credibility. The court emphasised that the proposed grounds of appeal were not compelling and did not provide sufficient grounds to justify a stay. The court's decision highlights the importance of appearing at hearings and filing necessary material, particularly in family law proceedings where property and custody issues are at stake.

The orders made by Harper J on 2 February 2024 were clear and final. Ms Duarte was required to vacate the property within 14 days of the orders, and she was also ordered to pay Mr Morse’s costs amounting to $1500 plus GST within 28 days of the date of the orders. The form of the order was subject to minor corrections in the court’s records, and any variations to the order could be made pursuant to the relevant rules of the Federal Circuit and Family Court of Australia. This case serves as a reminder to parties in family law proceedings of the importance of following procedural requirements and the consequences of failing to do so.

Orders

Orders of the court

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MORSE

Applicant

AND:

MS DUARTE

First Respondent

MR TOLMAN

Second Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by the Respondent Wife (“wife”) for a stay of the orders dated 18 January 2024 is dismissed.

2. Within 28 days of the date of these orders, the wife pay the Applicant Husband’s costs in the amount of $1500 plus GST.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 737 of 2014
Judgment of:	HARPER J
Date of judgment:	2 February 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application for stay of final property orders – Where final hearing proceeded on an undefended basis – Where no appearance by wife or second respondent at the final hearing – Where wife filed no material – Where no application for adjournment was made and no affidavit filed – Where final property orders required wife to vacate property within 14 days – Where wife argues that the appeal would be rendered nugatory if a stay were not granted – Where proposed grounds of appeal lack merit – Where the Court is not satisfied about bona fides of the application – Stay refused – Application dismissed – Wife ordered to pay the husband’s costs on a party/party basis
Legislation:	Constitution s 51 Family Law Act 1975 (Cth), s 79, 106A Judiciary Act 1903 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.56 Real Property Act 1900 (NSW) s 42
Cases cited:	Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 Morse & Duarte (No 5) [2024] FedCFamC1F 7
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of hearing:	2 February 2024
Place:	Sydney
Solicitor for the Applicant:	Mr Gittoes-Caesar of Lander & Rogers
First Respondent:	Litigant in person
Second Respondent:	No appearance

SYC 737 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MORSE Applicant
AND:	MS DUARTE First Respondent MR TOLMAN Second Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	2 FEBRUARY 2024