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Ryder & Brooks (No 2)

Ryder & Brooks (No 2)

Case [2024] FedCFamC2F 708 31 May 2024

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ryder & Brooks (No 2) [2024] FedCFamC2F 708

File number(s): PAC 883 of 2023

Judgment of: JUDGE STREET

Date of judgment: 31 May 2024

Catchwords: FAMILY LAW – stay application for stay of final parenting and property orders pending appeal –s61DB should not have been repealed - requirements for reconsideration of final parenting orders not satisfied -application for stay refused - costs

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)

Cases cited:
Aldridge & Keaton [2009] FamCAFC 106

Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685

Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013

Creighton & Creighton (No 5) [2023] FedCFamC1F 424

Daily & Daily (No 4) [2024] FedCFamC1F 149

Friscioni & Friscioni [2009] FamCAFC 43

Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716

Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598

House v The King (1936) 55 CLR 499

Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681

JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329

Lao & Zeng [2021] FedCFamC1A 17

The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220

Tyrell & Tyrell (No 2) [2022] FedCFamC2F 1466

Division: Division 2 Family Law

Number of paragraphs: 84

Date of hearing: 31 May 2024

Place: Sydney

Counsel for the Applicant: Mr J Bennett

Solicitor for the Applicant: Coleman Greig Lawyers

Solicitor for the Respondent: Mr L Dickson of Hills Family Law Centre
ORDERS

PAC 883 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RYDER

Applicant

AND:
MR BROOKS

Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

31 MAY 2024

AMENDED UNDER SLIP RULE 10.13(1)(E)
THE COURT ORDERS THAT:
1.The application in a proceeding filed 29 May 2024 is dismissed.
2.The respondent pay the applicant’s costs of the proceedings including the above application in a proceeding dismissed fixed in the amount of $78,000 within 28 days.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection…

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 Ryder & Brooks (No 2)

Details

AGLC: Ryder & Brooks (No 2) [2024] FedCFamC2F 708
Case: [2024] FedCFamC2F 708
Decision Date: 31 May 2024

CaseChat Overview and Summary

The applicant, Ms Ryder, sought a stay of final parenting and property orders made in divorce proceedings, pending an appeal against the decision. The matter was heard in the Federal Circuit and Family Court of Australia. The respondent, Mr Brooks, opposed the stay application, arguing that it should be dismissed on the basis that the applicant had failed to satisfy the requirements for reconsideration of the final parenting orders.

The court was required to determine whether the applicant had satisfied the requirements for reconsideration of the final parenting orders and whether the applicant's application for a stay should be granted under section 61DB of the Family Law Act 1975 (Cth). The court considered whether the requirements for reconsideration of final parenting orders were satisfied and whether the applicant's application for a stay should be granted under section 61DB of the Family Law Act 1975 (Cth). The court noted that section 61DB had been repealed but held that it should not have been repealed and that the requirements for reconsideration of final parenting orders had not been satisfied. The court held that the application for a stay should be dismissed and that the respondent should pay the applicant's costs of the proceedings, including the stay application, in the amount of $78,000.

The court dismissed the applicant's application for a stay of final parenting and property orders pending appeal. The court held that the requirements for reconsideration of final parenting orders had not been satisfied and that the application for a stay should be dismissed. The court also held that the respondent should pay the applicant's costs of the proceedings, including the stay application, in the amount of $78,000.

Orders

Orders of the court

PAC 883 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS RYDER

Applicant

AND:

MR BROOKS

Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

31 MAY 2024

AMENDED UNDER SLIP RULE 10.13(1)(E)

THE COURT ORDERS THAT:

1. The application in a proceeding filed 29 May 2024 is dismissed.

2. The respondent pay the applicant’s costs of the proceedings including the above application in a proceeding dismissed fixed in the amount of $78,000 within 28 days.

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

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.

Citations

AGLC Citation

Ryder & Brooks (No 2) [2024] FedCFamC2F 708

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Daily & Daily (No 4)
[2024] FedCFamC1F 149 Para 24

…Law) Rules 2021 (Cth) the Court has taken into account the principles that were helpfully summarised by the learned Burman J in Daily & Daily (No 4) [2024] FedCFamC1F 149 at [22] – [24] which is as follows: 22.Pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules”)…
Creighton & Creighton (No 5)
[2023] FedCFamC1F 424 Para 1

…The Court has also taken into account the observation made by the learned Johns J in relation to stay in Creighton & Creighton (No 5) [2023] FedCFamC1F 424 at [18]-[19]as follows: (18) The principles relating to the granting of a stay pending an appeal are well-known and are conveniently set out by the Full Court in the…
Tyrell & Tyrell (No 2)
[2022] FedCFamC2F 1466 Para 1

…ummarised by the learned Judge Neville , who is shortly to retire from this Court, and will be a great loss to this Court, in Tyrell & Tyrell (No 2 ) [2022] FedCFamC2F 1466 at [18]-[22]. The reasons of the learned Judge Neville identify the limited circumstances in which it would be appropriate to make an indemnity costs…
Hotchkiss & Marek (No 2)
[2021] FedCFamC2F 598

…CFamC1F 149 Friscioni & Friscioni [2009] FamCAFC 43 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716 Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598 House v The King (1936) 55 CLR 499 Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 JRN & KEN v…
Lao & Zeng
[2021] FedCFamC1A 17 Para 1

…ct of s 117 of the Act , the Court takes into account the principles as summarised by the learned Ainslie - Wallace, Ryan and Austin JJ in Lao & Zeng [2021] FedCFamC1A 17 at [39]-[42], and also helpfully summarised by the learned Judge Neville , who is shortly to retire from this Court, and will be a great loss to this…
Aldridge & Keaton (Stay Appeal)
[2009] FamCAFC 106 Para 24

…order for a stay depend upon the circumstances of each case” (see Friscioni & Friscioni [2009] FamCAFC 43 at [54]. 24. In Aldridge & Keaton [2009] FamCAFC 106 the following is set out: 17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appell…
Friscioni & Friscioni
[2009] FamCAFC 43 Para 24

…tionary and the circumstances that would justify an order for a stay depend upon the circumstances of each case” (see Friscioni & Friscioni [2009] FamCAFC 43 at [54]. 24. In Aldridge & Keaton [2009] FamCAFC 106 the following is set out: 17. This is an appeal from a discretionary judgment. There are well established…
Brantag Pty Ltd v Min for Mineral Resources
[1998] HCATrans 263 Para 24

…yale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant…
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd
[1986] HCA 84 Para 24

…222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). The authori…
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)
[1986] HCA 13 Para 24

…parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limit…
Gronow v Gronow
[1979] HCA 63 Para 24

…rinciples on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716). 18. The principles to be applied in determining an application for a stay of orders both in the general law and in res…
House v R
[1936] HCA 40 Para 24

…gment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716). 18. The principles to be applied in determining an application for a stay of orders bot…
Clemett and Clemett
[1980] FAMCA 90 Para 24

…2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application…
House v The King
63 WN 176 Para 24

…discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716). 18. The principles to be applied in determining an application for a stay of…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 24

…(see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (19…

Legislation cited in this decision · 2

Federal Circuit and Family Court of Australia Act 2021 (Cth)
2 mentions (from Para 2)
Family Law Act 1975 (Cth)
1 mention (from Para 2)

File number(s):	PAC 883 of 2023
Judgment of:	JUDGE STREET
Date of judgment:	31 May 2024
Catchwords:	FAMILY LAW – stay application for stay of final parenting and property orders pending appeal –s61DB should not have been repealed - requirements for reconsideration of final parenting orders not satisfied -application for stay refused - costs
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court Australia Act 2021 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)
Cases cited:	Aldridge & Keaton [2009] FamCAFC 106 Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685 Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013 Creighton & Creighton (No 5) [2023] FedCFamC1F 424 Daily & Daily (No 4) [2024] FedCFamC1F 149 Friscioni & Friscioni [2009] FamCAFC 43 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716 Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598 House v The King (1936) 55 CLR 499 Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 Lao & Zeng [2021] FedCFamC1A 17 The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 Tyrell & Tyrell (No 2) [2022] FedCFamC2F 1466
Division:	Division 2 Family Law
Number of paragraphs:	84
Date of hearing:	31 May 2024
Place:	Sydney
Counsel for the Applicant:	Mr J Bennett
Solicitor for the Applicant:	Coleman Greig Lawyers
Solicitor for the Respondent:	Mr L Dickson of Hills Family Law Centre

PAC 883 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS RYDER Applicant
AND:	MR BROOKS Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	31 MAY 2024