FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALDRIDGE & KEATON | [2009] FMCAfam 314 |
| FAMILY LAW – Stay of orders pending appeal – whether refusal of stay renders a successful appeal nugatory – consideration of hardship to parties –consideration of merits of the appeal – application of ss.60CC(2) and (3) to non-parents – best interests of the child – application for stay refused. |
| Family Law Act 1975, ss.60CC(2), 60CC(3), 60CC(4), 60B(1) |
| Clemett & Clemett (1981) FLC 91-013 Sampson & Hartnett [2007] FamCA 732 Trahn & Long (No.2) [2008] FamCAFC 194 Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 EJK & TSL (No.2) [2006] FamCA 806 House v R (1936) 55 CLR 499 Gronow v Gronow (1979) 144 CLR 513 Samson & Jacks [2008] FamCA 176 Potts & Bims [2007] FamCA 394 |
| Applicant: | MS ALDRIDGE |
| Respondent: | MS KEATON |
| File Number: | SYC 3130 of 2008 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 6 April 2009 |
| Date of Last Submission: | 6 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Knox |
| Solicitors for the Applicant: | Dettmann Longworth |
| Solicitor Advocate for the Respondent: | Ms Hunter |
| Solicitors for the Respondent: | Inner City Legal Centre |
ORDERS
That the application for a stay of orders be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Aldridge & Keaton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3130 of 2008
| MS ALDRIDGE |
Applicant
And
| MS KEATON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9 February 2009 this Court made final orders in relation to the child, [X] born in 2006 and published detailed reasons for its decision.
The Court made a series of orders which it is not necessary to republish in detail. In summary order (3) provided for [X] to spend time with the Respondent on a graduated basis which ultimately would lead to the child spending one weekend per month with the Respondent. The orders, as provided in orders (4) to (6) and (8) also provided for limited telephone contact and for contact on special occasions. Orders (7) and (9) dealt with change over and communication between the parties.
On 11 March 2009 and as amended on 13 March 2009 the Applicant mother made an application to stay those orders. Specifically, the Applicant made an application to stay order (3), (4), (5), (6), (7), (8), and (9) which I have summarised above. In the alternative, if a complete stay were not granted the Applicant sought that the Respondent’s time with the child be limited to 3 hours a month.
In relation to these proceedings the Applicant relies on two affidavits sworn by her on 12 March 2009 and 3 April 2009.
The Respondent seeks dismissal of the current application and relies on an affidavit sworn by her on 31 March 2009.
I note that at the time of hearing this application, a notice of appeal had been filed.
Relevant law
The law in relation to an…
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- Aldridge and Keaton [2009] FMCAfam 314
- Case
- [2009] FMCAfam 314
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation of the relevant provisions of the Federal Court of Australia Act, particularly the provisions that pertain to the stay of orders. The court had to consider whether the plaintiff had demonstrated sufficient grounds for a stay, and whether the balance of convenience favoured the grant of a stay. Additionally, the court needed to weigh the potential prejudice to the parties if the stay was either granted or refused.
The court found that the plaintiff had not demonstrated sufficient grounds for a stay, and that the balance of convenience favoured the enforcement of the orders. The court held that the plaintiff had not satisfied the requisite standard of showing that the orders were likely to be set aside on appeal, and that the potential prejudice to the plaintiff if the stay was refused was not sufficient to warrant a stay. The court also noted that the defendant had not had the opportunity to make an application for an appeal, but that this did not necessarily mean that the stay should be granted. The court concluded that the application for a stay of orders should be dismissed.
Orders
Orders of the court
1.
That the application for a stay of orders be 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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