Bostoi and Bostoi (No 2) - [2010] FamCA 1139

FAMILY COURT OF AUSTRALIA

BOSTOI & BOSTOI (NO. 2)

[2010] FamCA 1139

FAMILY LAW – PRACTICE AND PROCEDURE – Application by husband for stay of orders pending hearing of appeal – Application dismissed.
FAMILY LAW – COSTS – Stay application

Family Law Act 1975 (Cth)

K v B [2008] 37 Fam LR 1

APPLICANT:

Mr Bostoi

RESPONDENT:

Ms Bostoi

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

FILE NUMBER:

SYC

2851

2009

DATE DELIVERED:

17 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Justice Stevenson

HEARING DATE:

10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Watts McCrawy Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Nash

SOLICITOR FOR THE RESPONDENT:

Feeney Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

Orders

That the father’s Application in a Case filed 8 December 2010 is dismissed.
That the father pay the mother’s costs in the sum of $4,400.00 by 31 January 2011.
That the father pay the Independent Children’s Lawyers costs in the sum of $1,144.00 by 31 January 2011.

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

FAMILY COURT OF AUSTRALIA AT TBA

FILE NUMBER: SYC 2851 of 2009

MR BOSTOI

Applicant

And

MS BOSTOI

Respondent

REASONS FOR JUDGMENT

Stay Application

On 27 October 2010 I delivered judgment and made final parenting orders in respect of the parties’ two children:
C born in September 1997 (13); and
L born in April 2001 (9).
On 23 November 2010 the father filed a Notice of Appeal.
On 8 December 2010 the father filed an Application in a Case. He purported to seek a stay of the operation of certain of the orders of 27 October 2010 “on condition”. The effect of such an order would be to put in place, pending the hearing of his appeal, the regime which he sought unsuccessfully at trial.
I enquired of counsel who appeared for the father on this application why I should not conclude that he was seeking, in effect, an interim variation of my final orders. Counsel for the mother described the father’s application as “a back-door appeal”. Counsel for the father answered my query by words to the effect: “I would not argue against Order 4 being considered an application to vary final orders, so the father asks for week-about to be restored”.
The father sought leave to issue a subpoena for production of the notes of a counsellor appointed pursuant to Order 12 of 27 October 2010. This order specifically described this counselling as “confidential” and obliged each parent to ensure that: “the children’s privacy with respect to their counselling is respected, specifically that neither parent shall ask or encourage the children to disclose anything they wish to discuss with the children’s counsellor or what was said during discussions…

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 Bostoi and Bostoi (No 2)

Details

AGLC: Bostoi and Bostoi (No 2) [2010] FamCA 1139
Case: [2010] FamCA 1139
Decision Date: 17 December 2010

CaseChat Overview and Summary

In *Bostoi and Bostoi (No 2)*, Justice Stevenson of the Family Court of Australia considered an application by the father concerning parenting orders. The specific nature of the dispute, beyond the father's application, is not detailed in the provided text.

The central legal issue before the court was the determination of the father's application filed on 8 December 2010. The court was required to decide whether to grant or dismiss this application.

Justice Stevenson dismissed the father's application. Consequently, the court ordered the father to pay the mother's costs in the amount of $4,400.00 and the Independent Children's Lawyer's costs in the amount of $1,144.00, with both payments to be made by 31 January 2011.

Orders

Orders of the court

That the father’s Application in a Case filed 8 December 2010 is dismissed.

That the father pay the mother’s costs in the sum of $4,400.00 by 31 January 2011.

That the father pay the Independent Children’s Lawyers costs in the sum of $1,144.00 by 31 January 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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