ASHTON & PAINE (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHTON & PAINE (No.2) [2015] FCCA 2813

Catchwords:
FAMILY LAW – Application for a stay pending appeal from interim parenting orders.

Legislation:

Family Law Act 1975

Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106
Trahn & Long(No.2) [2008] FamCAFC 194

Applicant: MR ASHTON

Respondent: MS PAINE

File Number: MLC 8584 of 2015

Judgment of: Judge Harland

Hearing date: 29 September 2015

Date of Last Submission: 29 September 2015

Delivered at: Melbourne

Delivered on: 29 September 2015

REPRESENTATION

Counsel for the Applicant: Ms Winfield

Solicitors for the Applicant: Moore Law Firm

Counsel for the Respondent: Ms Canturi

Solicitors for the Respondent: Cash & Stavroulakis Lawyers

ORDERS

1. The application for a stay of the orders made on 23 September 2015 is dismissed.

2. Both solicitors are to file an affidavit within 14 days explaining the circumstances of the children being placed on the Watchlist.

3. The mother is to file and serve an amended application for final orders within 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Ashton & Paine (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8584 of 2015

MR ASHTON

Applicant

And

MS PAINE

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the father on an urgent basis seeking a stay of the orders that I made on an interim basis on 23 September 2015. The principles with respect to applications for a stay in parenting proceedings are well established and in that regard I refer to Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 and in particular, paragraph 18 of that judgment which summarises the principles which have been referred to in several other cases on this point. It reads:

   “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] HCA 13;(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] HCA 84; (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…