NEST & NEST - [2014] FamCA 74

FAMILY COURT OF AUSTRALIA

NEST & NEST

[2014] FamCA 74

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – proceedings have lengthy history but not yet proceeded to trial - applicant husband sought stay of proceedings while his appeal was heard –prejudice to wife – balance of convenience – little merit in husband’s grounds of appeal - application for stay dismissed

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth)

Gallieni & Gallieni [2012] FamCA 54
Grace & Grace (No 3) [2012] NSWSC 1623
Tate & Tate (2000) FLC 93-047
Worth & Worth
R & Watson; Ex parte Armstrong (1976) 136 CLR 248

APPLICANT:

Mr Nest

RESPONDENT:

Ms Nest

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

1821

2008

DATE DELIVERED:

23 January 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Morosini

SOLICITOR FOR THE RESPONDENT:

Di Morosini & Co

Orders

The husband’s Application in a Case filed 24 December 2013 be dismissed.
The question of the wife’s costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nest & Nest 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 ADELAIDE

FILE NUMBER: ADC 1821 of 2008

Mr Nest

Applicant

And

Ms Nest

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The matter of Nest comes before me upon an application in a case filed in this court on 24 December 2013. In that application, the husband seeks the following orders:-
(1)That there be a stay of the orders of Berman J setting the matter of Nest ADC1821 of 2008 for trial on 28, 29, 30 and 31 January 2014.
(2)That the trial be vacated until the leave to and the appeal is heard and decided by the Full Family Court of Australia.
(3)That time be abridged (for serving and hearing of this application.).
The application is supported by affidavit material of the husband but in particular an affidavit filed on 24 December 2013 and a subsequent affidavit of 15 January 2014 and an affidavit of the husband filed 15 January 2014 together with a document headed Applicant’s Outline of Submission 17 January 2014. The matter was listed for hearing before me in respect of the said Application on 20 January 2014. On that occasion the husband appeared in person. The wife was present and represented by her solicitor, Ms Morosini. Ms Morosini made submissions to the effect that she had not been served with the notice of appeal and therefore had no knowledge of the grounds of appeal upon which the husband relies.
I pause to note that the application in a case seeking a stay order is against the background of a notice of appeal filed by the husband on 19 December 2013. That notice of appeal contains the grounds…

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 NEST & NEST

Details

AGLC: NEST & NEST [2014] FamCA 74
Case: [2014] FamCA 74
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Nest (the husband) applied for a stay of proceedings and the vacation of a trial date set for January 2014, pending the hearing and determination of his appeal. Ms Nest (the wife) opposed the application. The dispute concerned the settlement of property, with proceedings having commenced in 2006 and the matter still not having reached a final trial.

The court was required to determine whether to grant the husband's application for a stay of proceedings. This involved considering the merits of the husband's grounds of appeal, the potential prejudice to the wife if a stay were granted, and the overall balance of convenience between the parties. The court also had to assess whether the husband's appeal, which concerned procedural orders rather than final substantive orders, was likely to render a successful appeal nugatory or make it impractical to restore the existing situation.

Justice Berman dismissed the husband's application, finding that the grounds of appeal, other than those relating to the refusal of his application for disqualification of the judge, lacked merit. The court noted the lengthy history of the proceedings, the wife's full compliance with court orders and readiness for trial, and the husband's failure to provide any indication of when he would be prepared for trial. The judge concluded that a stay was not warranted, particularly as the appeal was directed towards procedural matters and the matter had not yet reached a final hearing. The court found a real risk that the husband was seeking to avoid the listing of the matter for trial.

The application for a stay of proceedings was dismissed. The question of the wife's costs was reserved.

Orders