SENIOR & ANDERSON (NO. 2) - [2012] FamCA 880

FAMILY COURT OF AUSTRALIA

SENIOR & ANDERSON (NO. 2)

[2012] FamCA 880

FAMILY LAW – STAY APPLICATION – sale of real property – grounds and merit of appeal – whether failure to grant stay would render successful appeal nugatory – discretionary considerations – no automatic entitlement to stay – leave to husband to re-draft grounds of appeal.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) - Rule 22.11

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
Carlin & Carlin (1977) FLC 90-320
Friscioni & Friscioni [2009] FamCAFC 43
Kelly & Kelly (1981) FLC 91-007
Sheldon & Weir [2011] FamCA 2
State Central Authority & Ustinov (No 2) [2008] FamCA 368

APPELLANT:

Mr Anderson

RESPONDENT:

Ms Senior

FILE NUMBER:

MLC

9546

2008

DATE DELIVERED:

23 October 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

26 September 2012

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Gillian Coote, Lawyers

ORDERS

IT IS ORDERED:

That my orders pronounced 16 July 2012 be stayed pending the hearing and determination by the Full Court of the Notice of Appeal filed by the appellant husband in proceedings No. SOA 58 of 2012.
That within fourteen days the appellant make, file and serve upon the respondent wife’s solicitors an amended form of orders sought, as required by section 10 Part F of the Notice of Appeal.
That there be no order as to costs of and incidental to the hearing and determination of this stay application.
That the appellant husband’s Application in a Case filed 3 September 2012 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Senior & Anderson (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 9546 of 2008

Mr Anderson

Appellant

And

Ms Senior

Respondent

REASONS FOR JUDGMENT

ISSUES

On 16 July 2012 I delivered Reasons for Judgment and pronounced final orders for a division of the property of the parties pursuant to s 79 of the Family Law Act1975 (Cth).
On 6 August 2012 the husband filed a Notice of Appeal against my orders.
On 3 September 2012 the husband filed an Application in a Case seeking that my orders be stayed pending the hearing of his appeal to the Full Court.
The husband’s Application was supported by an affidavit filed 3 September 2012 wherein he deposed to his filing of the Notice of Appeal and highlighted that he sought to set aside my orders, including orders 3 and 4 thereof, which required the B property, a jointly owned shop and residence, to be sold with the proceeds to be divided, as ordered, between the parties.
The husband subsequently filed a Summary of Argument on 24 September 2012 and a further…

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 SENIOR & ANDERSON (NO. 2)

Details

AGLC: SENIOR & ANDERSON (NO. 2) [2012] FamCA 880
Case: [2012] FamCA 880
Decision Date: 23 October 2012

CaseChat Overview and Summary

In *Senior & Anderson (No. 2)*, Young J of the Supreme Court of New South Wales considered an application for a stay of previous orders made on 16 July 2012, pending the determination of a Full Court appeal. The application was brought by the appellant husband against the respondent wife.

The primary legal issue before the court was whether to grant a stay of the existing orders. This involved considering the grounds upon which a stay might be granted, particularly in the context of an appeal to a higher court. The court also had to determine the appropriate course of action regarding an amended form of orders sought by the appellant and an unrelated application filed by the appellant.

Young J ordered that the previous orders of 16 July 2012 be stayed pending the hearing and determination by the Full Court of the appellant husband's Notice of Appeal. The court further ordered that the appellant must, within fourteen days, make, file, and serve upon the respondent wife’s solicitors an amended form of orders sought, as required by section 10 Part F of the Notice of Appeal. The appellant husband’s Application in a Case filed on 3 September 2012 was otherwise dismissed, and there was no order as to the costs of the stay application.

Orders

Orders of the court

IT IS ORDERED:

That my orders pronounced 16 July 2012 be stayed pending the hearing and determination by the Full Court of the Notice of Appeal filed by the appellant husband in proceedings No. SOA 58 of 2012.

That within fourteen days the appellant make, file and serve upon the respondent wife’s solicitors an amended form of orders sought, as required by section 10 Part F of the Notice of Appeal.

That there be no order as to costs of and incidental to the hearing and determination of this stay application.

That the appellant husband’s Application in a Case filed 3 September 2012 be otherwise dismissed.

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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