Attaway and Balloch - [2019] FamCAFC 206

FAMILY COURT OF AUSTRALIA

ATTAWAY & BALLOCH

[2019] FamCAFC 206

FAMILY LAW – APPEAL – Appeal against orders dismissing the appellant’s application for a stay of interim parenting orders – Where an appeal has also been filed in relation to the interim parenting orders – Where the effect of the dismissal of the application for a stay was that the care of the child moved from the appellant to the respondent – Where a stay of the orders was in the best interests of the child – Where the appeal would be rendered nugatory if a stay was not granted – Appeal allowed – Where the orders are set aside and the discretion re-exercised – Orders made staying the interim parenting orders pending the determination of an expedited appeal against them – Orders made for the parties to file and serve written submissions as to costs.

Family Law Act 1975 (Cth) s 94AAA(3)

Aldridge & Keating (Stay Appeal) [2009] FamCAFC 106
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

APPELLANT:

Ms Attaway

RESPONDENT:

Mr Balloch

FILE NUMBER:

NCC

1081

2019

APPEAL NUMBER:

105

2019

DATE DELIVERED:

7 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

24 October 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 October 2019

LOWER COURT MNC:

[2019] FCCA 2921

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kelly

SOLICITOR FOR THE APPELLANT:

Derham Houston Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Mastronardi Legal Pty Ltd

ORDERS MADE ON 24 OCTOBER 2019

IT IS ORDERED:

The hearing of appeal no. EA 105 of 2019 be expedited and heard today, 24 October 2019.
The appeal against the orders of Judge Costigan made on 14 October 2019 be allowed.
The orders of Judge Costigan made on 14 October 2019 be set aside.
In lieu thereof, orders 1 to 10 of Judge Costigan made on 17 September 2019 be stayed pending the determination of appeal no. EA 94 of 2019.

BY CONSENT IT IS FURTHER ORDERED:

Pending the determination of appeal no. EA 94 of 2019, the child, X born in 2011 (“X”) spend time with the respondent:
(a)For half of the NSW Gazetted school holiday period with the parties to agree on which half and in the absence of agreement the father have the first half in odd years (including Christmas) and the second half in even years;
(b)In relation to X on the third weekend of each month from 11am Saturday to 3pm Sunday; and
(c)As otherwise agreed between the parties.
Pending the determination of appeal no. EA 94 of 2019, the ‘first half’ of the school holidays shall commence at 12 noon on the day following the child’s last day of required attendance and shall conclude at 12 noon on the day closest to the middle of the holiday period having regard for the total number of nights and the ‘second half’ of the school holiday periods…

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 Attaway and Balloch

Details

AGLC: Attaway and Balloch [2019] FamCAFC 206
Case: [2019] FamCAFC 206
Decision Date: 7 November 2019

CaseChat Overview and Summary

In the Family Court of Australia, Ms Attaway, the mother, appealed against orders made by a judge of the Federal Circuit Court of Australia, dismissing her application for a stay of interim parenting orders. These orders had resulted in the care of the parties’ child, X, being moved from the mother to the father. The primary judge's dismissal of the mother's application for a stay of these orders required the mother to return the child to the father's care by a specific date. On appeal, the court allowed the appeal, set aside the orders made by the primary judge, and stayed the interim parenting orders pending the determination of an expedited appeal against them.

The legal issues before the court were whether the stay of the orders was in the best interests of the child and whether the appeal would be rendered nugatory if a stay was not granted. The court found that the primary judge did not adequately consider whether delaying the enforcement of the orders until the appeal was determined was in the best interests of the child. The court also found that insufficient weight was given to the fact that the appeal would be rendered nugatory if a stay was not granted.

In allowing the appeal, the court set aside the orders made by the primary judge and stayed the interim parenting orders pending the outcome of the appeal. The court also ordered that the parties file and serve written submissions as to costs. The appeal was to be heard in the second week of December 2019.

Orders