WEMPLE & DAUTRY - [2014] FCCA 401

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEMPLE & DAUTRY

[2014] FCCA 401

Catchwords:
FAMILY LAW – Stay application – consideration of Mother’s bona fides in light of email threat to Father to withhold child spending time with him unless he agreed to Mother’s demands – one ground of the stay application relied upon ‘unknown evidence’ which may be found (‘unknown unknowns’) – allegations by Mother of possible ‘hacking’ of her electronic communications by the Father (a serving Australian Federal Police officer) – warning of the gravity of such allegations.

Legislation:

Family Law Act 1975

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685
Clemett & Clemett (1981) FLC 91-013
Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

K & B (2006) FLC 93-288

Applicant:

MR WEMPLE

Respondent:

MS DAUTRY

File Number:

CAC 1472 of 2013

Judgment of:

Judge Neville

Hearing date:

17 February 2014

Date of Last Submission:

18 February 2014

Delivered at:

Canberra

Orders pronounced on:

19 February 2014

Reasons provided on:

11 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr S Gill

Solicitors for the Applicant:

Farrar Gesini Dunn

Solicitor/Advocate for the Respondent:

Mr J Nicholl

Solicitors for the Respondent:

Nicholl & Co

ORDERS

The Mother’s Application in a Case, filed 21^st January 2014, seeking (among other things) a stay of the orders made by this Court on 20^th December 2013 (a) regarding the school X should attend in 2014, and (b) to vary the parenting orders also made on 20^th December 2013, be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wemple & Dautry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1472 of 2013

MR WEMPLE

Applicant

And

MS DAUTRY

Respondent

REASONS FOR JUDGMENT

Introduction

Formally, the Applicant in the current stay application is the Respondent Mother in the substantive proceedings, which involve parenting (and school) orders in relation to 5 year old X.
Following an urgent hearing earlier in December, in the middle of the last duty week of the year (20^th December 2013), I pronounced orders and delivered abbreviated reasons regarding (a) parenting arrangements and (b) in relation to the school X should attend in 2014. Detailed written reasons were subsequently provided in early February 2014.
On 17^th January 2014, the Mother filed an appeal in relation to the December orders, both in relation to parenting and the order regarding X’s school.
On 21^st January 2014, the Mother filed an Application in a Case in which she sought relief by way of a stay of the December 2013 orders regarding X’s school,…

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 WEMPLE & DAUTRY

Details

AGLC: WEMPLE & DAUTRY [2014] FCCA 401
Case: [2014] FCCA 401
Decision Date: 19 February 2014

CaseChat Overview and Summary

In this matter before Judge Neville, the Mother sought a stay of orders made by the Court on 20th December 2013, which concerned the child's school for 2014 and varied existing parenting orders. The Mother's application for a stay was based on several grounds, including allegations of potential "hacking" of her electronic communications by the Father, who is a serving Australian Federal Police officer, and the possibility of discovering "unknown unknowns" or evidence not yet identified.

The Court was required to determine the legal issues surrounding the application for a stay of existing orders. This involved considering the principles applicable to such applications, particularly in the context of parenting proceedings. Key issues included the onus on the applicant to establish a proper basis for the stay, the entitlement of a party to the benefit of a judgment, and the sufficiency of merely filing an appeal. The Court also had to assess the bona fides of the applicant, weigh the balance of convenience and competing rights, and consider the risk of an appeal being rendered nugatory.

Judge Neville applied established principles for stay applications, emphasising their discretionary nature. The Court noted that while the applicant bears the onus, exceptional circumstances are not required. The Court considered the strength of the proposed appeal, the desirability of limiting changes to a child's living arrangements, and the best interests of the child as significant factors. The Court also acknowledged the gravity of the Mother's allegations regarding potential hacking by a serving police officer.

The Mother's Application in a Case, filed on 21st January 2014, seeking a stay of the orders made on 20th December 2013, was dismissed by the Court.

Orders

Orders of the court

1. The Mother’s Application in a Case, filed 21st January 2014, seeking (among other things) a stay of the orders made by this Court on 20th December 2013 (a) regarding the school X should attend in 2014, and (b) to vary the parenting orders also made on 20th December 2013, be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is convenient to note at the outset the principles that apply in applications of the kind currently before the Court. Such an outline was provided by the Full Court in Aldridge & Keaton (Stay Appeal).[2] At [17] – [18], the Full Court said (emphasis added):[2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. See also the more recent Full Court judgment in Anderson & Senior (Stay Appeal) (2013) FLC ¶93-556. The former judgment was in a parenting matter, the latter in a property case in which leave to appeal to the High Court was sought.[17] This is an appeal from a 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) 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 respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (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) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;· a person who has obtained a judgment is entitled to the benefit of that judgment;· a person who has obtained a judgment is entitled to presume the judgment is correct;· the mere filing of an appeal is insufficient to grant a stay;· the bona fides of the applicant;· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;· the desirability of limiting the frequency of any change in a child’s living arrangements;· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and· the best interests of the child the subject of the proceedings are a significant consideration. I emphasise the discretionary nature of the judgment under appeal particularly because, of the 10 substantive grounds of appeal, grounds 1, 2, 3, 4, 7, 8, 9 and 10 all refer specifically to either the weight given to certain evidence, and/or the Court’s exercise of discretion in the light of that evidence. Such matters are noted in detail later in these reasons.

Ratio Decidendi

Legal Principle Established

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