Reichstein and Reichstein - [2007] FamCA 365

FAMILY COURT OF AUSTRALIA

REICHSTEIN & REICHSTEIN

[2007] FamCA 365

APPEAL – STAY APPLICATION - Pending Application for Special Leave to Appeal to the High Court – Grounds of appeal directed to the re-exercise of discretion by the Full Court - No matter of public policy or important question of law arising - No issue relevant to the administration of justice –– No substantial prospect of success - Whether a stay was necessary to preserve the subject matter of the litigation – Balance of convenience – Wife’s entitlement to fruits of litigation - Application dismissed – Costs

Federal Commissioner of Taxation v The Myer Emporium Ltd [No.1] (1986) 160 CLR 220
Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681

Family Law Act 1975 (Cth) ss 79, 117
Judiciary Act 1903 (Cth) s 35A

APPELLANT HUSBAND:

REICHSTEIN

RESPONDENT WIFE:

REICHSTEIN

FILE NUMBER:

ADF

908

2004

APPEAL NUMBER:

2006

DATE DELIVERED:

29 January 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bryant CJ
Kay J
Boland J

HEARING DATE:

29 January 2007

COURT JURISDICTION SUBJECT TO APPLICATION:

Full Court

Family Court of Australia

COURT JUDGMENT DATE:

29 November 2006

LOWER COURT MNC:

[2006] FamCA 1422

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Berman

SOLICITOR FOR THE RESPONDENT:

Adey Lawyers

Orders

IT IS ORDERED:-

That the Husband's Application for a Stay of paragraphs 6.1.1 and 6.2 of the Order of this Honourable Court made on 29 November 2006, filed on 16 January 2007, be dismissed.
That the Husband pay the Wife's costs in the sum of $1,200 within one month.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Reichstein v Reichstein.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 15 of 2006
File Number: ADF 908 of 2004

REICHSTEIN

Appellant Husband

And

REICHSTEIN

Respondent Wife

REASONS FOR JUDGMENT

BRYANT CJ:

This is an application by [Mr] Reichstein, the husband, filed on 16 January 2007 in which he seeks to stay on terms orders made by the Full Court on 29 November 2006 pending an application for special leave to the High Court of Australia. The husband's application is supported by an affidavit sworn by him on 16 January 2007, annexed to his affidavit is a copy of his application for special leave to which I will return. The application is opposed by the wife.
The proceedings before the Full Court arose out of an appeal by the husband against orders made by Morgan J on 15 February 2006, as amended under the slip rule by Mushin J on 6 March 2006, in proceedings between husband and wife for property settlement under section 79 of the Family Law Act 1975 (Cth).
The orders made on 6 March 2006 required the husband to pay to the wife the sum of…

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 Reichstein and Reichstein

Details

AGLC: Reichstein and Reichstein [2007] FamCA 365
Case: [2007] FamCA 365
Decision Date: 29 January 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an application by the Husband for a stay of certain orders made by the Court on 29 November 2006. The Wife sought costs associated with the Husband's application.

The primary legal issue before the Full Court was whether the Husband had established sufficient grounds to warrant a stay of the previously made orders. This involved an assessment of the merits of the Husband's intended appeal and the potential prejudice to the parties should the stay be granted or refused.

The Court dismissed the Husband's application for a stay. While the specific reasons for this dismissal are not detailed in the provided text, the outcome indicates that the Husband failed to satisfy the necessary legal threshold for granting a stay pending appeal. The Court ordered the Husband to pay the Wife's costs in the sum of $1,200 within one month.

Orders

Orders of the court

IT IS ORDERED:-

That the Husband's Application for a Stay of paragraphs 6.1.1 and 6.2 of the Order of this Honourable Court made on 29 November 2006, filed on 16 January 2007, be dismissed.

That the Husband pay the Wife's costs in the sum of $1,200 within one month.

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.