Bletch and Douglas (No. 3) - [2008] FamCA 178

FAMILY COURT OF AUSTRALIA

BLETCH & DOUGLAS (NO. 3)

[2008] FamCA 178

FAMILY LAW - ORDERS – Stay – Children’s case – Where stay of orders sought pending appeal of making of those orders

Family Law Act 1975 (Cth)

Clemett & Clemett (1981) FLC 91-013
EJK & TSL (No 2) [2006] FamCA 806
House v The King (1936) 55 CLR 499
Wait & Waite- Hollins & Anor (2007) FLC 93-325

APPLICANT:

Mr Bletch

RESPONDENT:

Ms Douglas

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

FILE NUMBER:

SYF

2318

2003

DATE DELIVERED:

12 March 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

11 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

SOLICITOR FOR THE APPLICANT:

Ms Linden, York Family Law

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Mr Beazley, Beazley Singleton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

The orders made by me on 3 March 2008 be stayed until the earlier of the following events:
(a) The Full Court hearing the father’s appeal filed 6 March 2008 or;
(b) The close of Court business on 21 April 2008
Upon the following conditions:
(i)That the father prosecute the appeal diligently and expeditiously.
(ii)That the father press his application for expedition before Boland J on 17 March 2008, and any other occasion she may set.
(iii)That the father be prepared to have his appeal heard in any site in Australia appointed by the Full Court.
(iv)That the father prosecute his appeal on the date appointed by the Full Court for the hearing.
I request the Full Court afford whatever expedition is available for the hearing of the father’s appeal.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2318 of 2003

Mr Bletch

Applicant

And

Ms Douglas

Respondent

REASONS FOR JUDGMENT

Before the court is an application for a stay of the orders made by me on 3 March 2008. The stay is sought pending the hearing of an appeal against those orders. The appeal has been filed by the father in the proceedings, determined by me. He seeks the stay of orders.
The guidelines for hearing a stay application pending the hearing of an appeal in a children’s case are set out in the cases of Clemett & Clemett (1981) FLC 91-013, Waite & Waite-Hollins & Anor (2007) FLC 93-325, and EJK & TSL (No 2) [2006] FamCA 806, amongst others.
The guidelines can be conveniently condensed to the following key points:
a)The best interests of the child are an important but not paramount consideration.
b)The frequency of any changes in the custodial arrangements should be limited as much as possible.
c)Does the appeal appear to be based on substantial grounds and not merely a delaying…

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 Bletch and Douglas (No. 3)

Details

AGLC: Bletch and Douglas (No. 3) [2008] FamCA 178
Case: [2008] FamCA 178
Decision Date: 12 March 2008

CaseChat Overview and Summary

Justice Le Poer Trench considered an application by the father for a stay of orders made on 3 March 2008, pending his appeal to the Full Court. The father had filed his appeal on 6 March 2008.

The primary legal issue before the court was whether to grant a stay of the previous orders, and if so, upon what conditions. This involved assessing the balance of convenience and the merits of the appeal, as well as ensuring the appeal was prosecuted diligently and expeditiously.

His Honour granted the stay of the orders made on 3 March 2008 until the earlier of the Full Court hearing the father's appeal or the close of Court business on 21 April 2008. The stay was conditional upon the father diligently prosecuting the appeal, pressing his application for expedition, being prepared to have the appeal heard at any location in Australia appointed by the Full Court, and prosecuting the appeal on the date appointed. Justice Le Poer Trench also requested that the Full Court afford whatever expedition was available for the hearing of the appeal.

Orders

Orders of the court

The orders made by me on 3 March 2008 be stayed until the earlier of the following events:

(a) The Full Court hearing the father’s appeal filed 6 March 2008 or;

(b) The close of Court business on 21 April 2008

Upon the following conditions:

(i) That the father prosecute the appeal diligently and expeditiously.

(ii) That the father press his application for expedition before Boland J on 17 March 2008, and any other occasion she may set.

(iii) That the father be prepared to have his appeal heard in any site in Australia appointed by the Full Court.

(iv) That the father prosecute his appeal on the date appointed by the Full Court for the hearing.

I request the Full Court afford whatever expedition is available for the hearing of the father’s appeal.

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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