Aldridge and Keaton - [2009] FMCAfam 314

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…

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 Aldridge and Keaton

Details

AGLC: Aldridge and Keaton [2009] FMCAfam 314
Case: [2009] FMCAfam 314
Decision Date: 9 April 2009

CaseChat Overview and Summary

In the matter of Aldridge and Keaton, the Federal Court of Australia was tasked with adjudicating on an application for a stay of orders made by the plaintiff. The plaintiff, Aldridge, sought to halt the enforcement of certain orders made by the court to allow time for the defendant, Keaton, to make an application for an appeal. The court was required to determine whether the plaintiff's application should be granted, and if so, under what conditions. The case hinged on the interpretation of the relevant statutory provisions and the court's discretion in granting a stay of orders.

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

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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