Bradshaw & Bradshaw (No 3) - [2023] FedCFamC1F 510

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bradshaw & Bradshaw (No 3) [2023] FedCFamC1F 510

File number: NCC 535 of 2022

Judgment of: AUSTIN J

Date of judgment: 23 June 2023

Catchwords: FAMILY LAW – PARENTING – Where the father seeks a stay of final parenting orders pending determination of an appeal – Where those orders require the child to live with the mother and eliminate the father from the child’s life for three months before the graduated restoration of their relationship – Where the father’s appeal would not be rendered nugatory by dismissal of his stay application – Where a stay of the appealed orders would cause disturbance to the child’s residence – Application dismissed – Costs ordered in a fixed sum in favour of the respondent and the Independent Children’s Lawyer.

Legislation:
Family Law Act 1975 (Cth) Pt VII, s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:
Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220; [1986] HCA 13

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681; [1986] HCA 84

JRN & IEG (1998) 72 ALJR 1329; [1998] 16 Leg Rep 16

Sheldon & Weir (Stay Application) [2011] FamCAFC 5

Trahn & Long (No.2) [2008] FamCAFC 194

Division: Division 1 First Instance

Number of paragraphs: 20

Date of hearing: 23 June 2023

Place: Newcastle

Counsel for the Applicant: Mr Duane

Solicitor for the Applicant: Gillard Family Lawyers

Solicitor for the Respondent: Powe & White Lawyers

Counsel for the Independent Children's Lawyer: Mr Mooney

Solicitor for the Independent Children's Lawyer: Krstina Wooi Lawyer
ORDERS

NCC 535 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BRADSHAW

Applicant

AND:
MR BRADSHAW

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

AUSTIN J

DATE OF ORDER:

23 JUne 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the respondent on 21 June 2023 is dismissed.
2.Save as to costs, the Response to an Application in a Proceeding filed by the applicant on 22 June 2023 is dismissed.
3.The respondent shall pay the applicant’s party/party costs of and incidental to this interlocutory dispute, fixed in the sum of $2,500.
4.The respondent shall pay the Independent Children’s Lawyer’s party/party costs of and incidental to this interlocutory dispute, fixed in the sum $1,650.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121…

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 Bradshaw & Bradshaw (No 3)

Details

AGLC: Bradshaw & Bradshaw (No 3) [2023] FedCFamC1F 510
Case: [2023] FedCFamC1F 510
Decision Date

CaseChat Overview and Summary

In Bradshaw & Bradshaw (No 3), the father sought a stay of final parenting orders made by the court a month prior. The orders required the child to live with the mother and eliminate the father from the child’s life for three months before the graduated restoration of their relationship. The father sought the stay pending determination of his appeal against the orders. The court had to determine whether the stay should be granted considering the welfare of the child, the prospects of the appeal, and the balance of convenience between the parties.

The court considered the legal principles governing the stay of orders, including the need to prevent the appeal from being rendered nugatory, the risk of the prospectively successful appellant not being restored to his or her former position, and the prospects of the appeal. The court also considered the welfare of the child as a significant, but not paramount, consideration. The court noted that if the appealed judgment was discretionary in nature, the appellate court must strongly presume it to be correct. The court concluded that the stay would not restore the child’s residence with the father and would only revive anterior interim orders that were egregiously flouted by the father. The court also noted that any stay of the appealed orders would result in another disturbance to the child’s residence, which should be avoided. The court considered the arguments advanced by the father, including the claim that the allowance of supplementary oral evidence deprived the father of procedural fairness and amounted to error, and the erroneous analysis of expert opinion evidence and some unidentified findings made under s 60CC of the Act. However, the court found that none of the arguments advanced by the father were sufficient to persuade of the need for the appealed orders to be stayed.

The court dismissed the father's application for a stay of the final parenting orders. The court also ordered the father to pay the mother’s party/party costs of and incidental to this interlocutory dispute, fixed in the sum of $2,500, and the Independent Children’s Lawyer’s party/party costs of and incidental to this interlocutory dispute, fixed in the sum of $1,650. The court rejected the father’s contention that the assessment of costs was unreasonably high and should be more properly assessed at a lower amount. The court fixed the costs in reliance upon r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders