Spencer and Spencer (No. 4) - [2020] FamCAFC 254

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER (NO. 4)

[2020] FamCAFC 254

FAMILY LAW – APPEAL – APPLICATION FOR STAY – Where the Applicant’s appeal to the Full Court of the Family Court of Australia was dismissed – Where the Applicant was ordered to pay the Respondent’s costs of the unsuccessful appeal in a fixed amount of $9,22.94 – Where the Applicant has filed an application to extend time to apply for special leave to appeal to the High Court of Australia – Where the Applicant seeks a stay of the costs order pending her application in the High Court of Australia – Where the Respondent chose not to participate in this application – Application allowed.

Family Law Rules 2004 (Cth) r 22.37(b)(ii)

Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) 1986 161 CLR 681; [1986] HCA 84
Re Marks and Federated Ironworkers’ Association; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 34 ALR 208
Spencer & Spencer (No 3) [2020] FamCAFC 145

APPLICANT:

Ms Spencer

RESPONDENT:

Mr Spencer

FILE NUMBER:

PTW

7180

2010

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

9 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Perth

JUDGMENT OF:

Kent J

HEARING DATE:

In Chambers; Applicant’s submissions received 14 August 2020

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

13 December 2018

LOWER COURT MNC:

[2018] FCWA 249

REPRESENTATION

THE APPLICANT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

Biddulph & Turley

Orders

Pending the determination by the High Court of Australia of:
(a)       the Applicant’s Application for an Extension of Time to Apply for      Special Leave to Appeal; and
(b)       the Applicant’s Application for Special Leave to Appeal to that Court           from the orders made by the Full Court of this Court on 12 June 2020; and
(c)       the appeal to the High Court of Australia, if special leave is granted; and
(d)       the application for prerogative relief sought by the Applicant from the          High Court of Australia in respect of the orders made by the Full Court of            this Court on 12 June 2020;
enforcement of the order for costs made by the Full Court of this Court on 12 June 2020 be stayed.
The balance of the orders sought in the Application in an Appeal filed on 15 July 2020 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer & Spencer (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT

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.

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Details

Case: [2020] FamCAFC 254
Decision Date: 9 October 2020

CaseChat Overview and Summary

In the matter of Spencer and Spencer (No. 4), the parties involved were the applicant, who sought an extension of time and special leave to appeal, and the respondent, who opposed these applications. The dispute pertained to the enforcement of an order for costs made by the Full Court of the Family Court of Australia on 12 June 2020, and the applicant's subsequent appeal applications to both the Family Court of Australia and the High Court of Australia. The case was heard by the Family Court of Australia.

The legal issues before the court were whether the applicant should be granted an extension of time to apply for special leave to appeal and whether special leave to appeal should be granted from the orders made by the Full Court on 12 June 2020. Additionally, the court considered whether the application for prerogative relief sought by the applicant from the High Court of Australia should be entertained in respect of the Full Court's orders.

In delivering the judgment, the court acknowledged the complexity and significance of the applications. It noted the applicant's efforts to appeal the Full Court's decisions and the importance of the timeline for such appeals. The court found that, given the pending applications to the High Court of Australia, it was appropriate to stay the enforcement of the order for costs made by the Full Court on 12 June 2020 until the High Court resolved the applicant's appeals. Consequently, the court dismissed the balance of the orders sought in the application in an appeal filed on 15 July 2020.

Orders

Orders of the court

Pending the determination by the High Court of Australia of:

(a) the Applicant’s Application for an Extension of Time to Apply for Special Leave to Appeal; and

(b) the Applicant’s Application for Special Leave to Appeal to that Court from the orders made by the Full Court of this Court on 12 June 2020; and

(d) the application for prerogative relief sought by the Applicant from the High Court of Australia in respect of the orders made by the Full Court of this Court on 12 June 2020;

enforcement of the order for costs made by the Full Court of this Court on 12 June 2020 be stayed.

The balance of the orders sought in the Application in an Appeal filed on 15 July 2020 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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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

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