FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Parker & Leclair (No 2) [2024] FedCFamC2F 1572
File number(s): MLC 14258 of 2021 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – ex tempore reasons – wife’s application for stay of final property orders – property orders made by consent at the conclusion of a final hearing of seven days – application to appeal out of time – property orders part executed in favour of wife – wife seeks stay only of orders conferring benefit on husband – court not satisfied of bona fides of application or that appeal would be rendered nugatory if stay refused – preliminary assessment of merits of appeal – application for stay dismissed – costs reserved Legislation: Family Law Act 1975 (Cth) ss 79A, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106.
Allan v Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162
Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Federal Commissioner of Taxation v Myer Emporium (No 1) (1986) 160 CLR 220; [1986] HCA 13
Gilbert v Estate of Gilbert (1990) FLC 92-125; [1989] FamCA 95:
Guo & Zoric [2023] FedCFamC1F 628
Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681
Philkin & Philkin (No 3) [2021] FedCFamC1F 224
Zhai & Niu [2015] FamCA 639
Division: Division 2 Family Law Number of paragraphs: 60 Date of last submission/s: 25 October 2024 Date of hearing: 25 October 2024 Place: Melbourne Representative for the applicant: Self-represented Representative for the respondent: Mr Harper Solicitor for the respondent: MMH Lawyers ORDERS
MLC 14258 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PARKER
Applicant
AND: MS LECLAIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the respondent (“wife”) on 16 October 2024 (sealed on 17 October 2024) be dismissed.
2.The costs of the applicant husband of and incidental to today’s hearing be reserved.
3.The husband have liberty to contact the chambers of Judge A. Humphreys by email (copied to the wife or her lawyer if she then has one) to seek the re-listing of the application for costs made by way of his Response to Application in a Proceeding filed on 23 October 2024, upon:
(a)determination of the wife’s appeal of the final property orders made on 31 May 2024; or
(b)dismissal of her Application in an Appeal filed on 15 October 2024.
AND THE COURT NOTES THAT:
A.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family…
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- Parker & Leclair (No 2) [2024] FedCFamC2F 1572
- Case
- [2024] FedCFamC2F 1572
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the application for a stay was made in good faith, and whether the appeal was likely to succeed. The court also had to consider whether refusing the stay would render the appeal nugatory. In determining the merits of the appeal, the court conducted a preliminary assessment, finding that the application did not appear to be made in good faith and that the appeal was unlikely to succeed. Consequently, the court dismissed the application for a stay and reserved costs.
Judge A. Humphreys found that the application for a stay was not made in good faith and that the appeal was unlikely to succeed. The court noted that the property orders had already been partially executed in favour of Ms Leclair, and that she was only seeking to stay the orders that conferred benefits on Mr Parker. The court was not satisfied that the appeal would be rendered nugatory if the stay was refused. As a result, the application for a stay was dismissed. The husband was granted liberty to apply for costs once the wife’s appeal was determined or dismissed. The court also noted the legislative provisions prohibiting the identification of parties and witnesses in family law proceedings.
This decision highlights the importance of good faith in applications for stays of final property orders, and the court’s willingness to conduct a preliminary assessment of the merits of an appeal when considering such applications. The outcome also underscores the consequences of not acting in good faith when making such applications, as the court reserved costs against the applicant.
Orders
Orders of the court
MLC 14258 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR PARKER
Applicant
AND:
MS LECLAIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1. The Application in a Proceeding filed by the respondent (“wife”) on 16 October 2024 (sealed on 17 October 2024) be dismissed.
2. The costs of the applicant husband of and incidental to today’s hearing be reserved.
3. The husband have liberty to contact the chambers of Judge A. Humphreys by email (copied to the wife or her lawyer if she then has one) to seek the re-listing of the application for costs made by way of his Response to Application in a Proceeding filed on 23 October 2024, upon:
(a) determination of the wife’s appeal of the final property orders made on 31 May 2024; or
(b) dismissal of her Application in an Appeal filed on 15 October 2024.
AND THE COURT NOTES THAT:
A. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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