RICE & RICE (No.2) - [2019] FCCA 1877

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICE & RICE (No.2)

[2019] FCCA 1877

Catchwords:
FAMILY LAW – Property – Stay application pending appeal – costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.25B.16

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106

Macris & Galanis [2015] FCCA 2623

Applicant:

MR RICE

Respondent:

MS RICE

File Number:

PAC 6086 of 2014

Judgment of:

Judge Obradovic

Hearing date:

11 April 2019

Date of Last Submission:

11 April 2019

Delivered at:

Parramatta

Delivered on:

11 April 2019

REPRESENTATION

Appearing for the Applicant:

In person

Appearing for the Respondent:

Ms Hogg

Solicitors for the Respondent:

Hogg & Associates

ORDERS

The Application in a Case filed by the husband on 15 March 2019 is dismissed.
The husband is to pay the wife’s costs in the amount of $2,987 within 42 days of today’s date.
The Application in a Case filed by the wife on 28 March 2019 is referred to a Registrar pursuant to Rule 25B.16(2) of the Federal Circuit Court Rules 2001.

IT IS NOTED that publication of this judgment under the pseudonym Rice & Rice (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 6086 of 2014

MR RICE

Applicant

And

MS RICE

Respondent

REASONS FOR JUDGMENT

On 31 January 2019, the Court made orders in proceedings in respect of parenting and property adjustment orders between the parties. The proceedings were heard on 31 July 2017, 1 and 2 August 2017 and 8 November 2017, with the last submissions received by the Court on 8 January 2018.
By way of a Notice of Appeal filed on 28 February 2019, Mr Rice, who was the respondent in the substantive proceedings, seeks to appeal Orders 17 and 31 of the Orders made on 31 January 2019. Indeed, he seeks for those orders to be discharged.
Order 17 relates to three bank accounts, being Westpac Youth Reward Saver accounts held in each of the children’s names, which the Court essentially directed to be closed and payment to be made to the wife in respect of all of the funds held in those accounts. At the time of the making of the Orders on 31 January 2019, and indeed at the time of hearing, the eldest child of the parties was an adult, while the two younger children remained below the age of 18 years.
Order 31, which the husband also seeks by way of his Notice of Appeal to be discharged, is an order for the husband to pay to the wife spousal maintenance for a period of two years in the amount of $450 each week. The husband sets out his grounds of appeal at pages 3 and 4 of that Notice of Appeal which has been filed on 28 February 2019.
On 15 March 2019, the husband filed an Application in a Case seeking a stay of Orders 17 and 31, pending the outcome of the appeal which he filed on 28 February…

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 RICE & RICE (No.2)

Details

AGLC: Rice and Rice (No.2) [2019] FCCA 1877
Case: [2019] FCCA 1877
Decision Date: 11 April 2019

CaseChat Overview and Summary

In the matter of *Rice & Rice (No.2)*, Judge Obradovic of the Federal Circuit Court of Australia considered an application by the husband for a stay of proceedings pending an appeal, and a separate application by the wife. The core of the dispute revolved around the husband's attempt to halt further proceedings in the Family Court while he pursued an appeal, alongside the wife's own application.

The primary legal issue before the court was whether to grant the husband's application for a stay of proceedings. This required the court to consider the relevant legal principles governing such applications, including the likelihood of success on appeal, the balance of convenience, and the potential for injustice to either party. The court also had to determine the appropriate course of action for the wife's separate application.

Judge Obradovic dismissed the husband's application for a stay, finding that the necessary criteria for such an order were not met. The court ordered the husband to pay the wife's costs in the sum of $2,987 within 42 days. The wife's application was referred to a Registrar for further determination in accordance with Rule 25B.16(2) of the Federal Circuit Court Rules 2001.

Orders

Orders of the court

The Application in a Case filed by the husband on 15 March 2019 is dismissed.

The husband is to pay the wife’s costs in the amount of $2,987 within 42 days of today’s date.

The Application in a Case filed by the wife on 28 March 2019 is referred to a Registrar pursuant to Rule 25B.16(2) of the Federal Circuit Court Rules 2001.

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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