FAMILY COURT OF AUSTRALIA
| BRENNAN & SHAW (NO. 2) | [2008] FamCA 744 |
| FAMILY LAW - ORDERS – Stay – Children's case – application by the mother to stay orders which provide for the father to spend time with the child, pending the mother’s appeal from that decision – stay application refused |
| Family Law Act 1975 (Cth) |
| In the Marriage of Carlin (1977) FLC 90-320 |
| APPLICANT: | Ms Brennan |
| RESPONDENT: | Mr Shaw |
| INDEPENDENT CHILDREN’S LAWYER: | Adamson Solicitors |
| FILE NUMBER: | SYF | 3250 | of | 2006 |
| DATE DELIVERED: | 3 September 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 27 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G. Gould |
| COUNSEL FOR THE RESPONDENT: | Mr G. Watkins |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr G. Fernie |
Orders
The mother’s application for a stay of Orders made by me on 12 August 2008 is dismissed.
The costs of the application are reserved pending the determination of the Appeal. The matter of costs may be re-listed by arrangement with my Associate, 14 days after the determination of the Appeal.
IT IS NOTED that publication of this judgment under the pseudonym Brennan and Shaw is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3250 of 2006
| Ms Brennan |
Applicant
And
| Mr Shaw |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application by the mother seeking a stay of proceedings upon Orders made by me on 12 August 2008 in relation to arrangements for the child of herself and the father, respondent to the application, to spend time with the father pending an appeal from my decision.
The Orders that I made were:
(1)The parties have equal shared parental responsibility for the major long-term issues in relation to the child, [O], born [in] March 2006 (the Child).
(2)The Child live with the mother as set out hereunder and at those times the mother be responsible for the Child's day to day care, welfare and development.
(3)The Child live with the father as set out hereunder and at those times the father be responsible for the Child's day to day care, welfare and development.
(4)For the purpose of this order the weeks of the year are divided up into either odd or even, where the first whole week of year in which 1 January falls is week 1, an odd week.
(5)Each week is to start on a Monday and conclude on a…
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- AGLC
- Brennan & Shaw (No. 2) [2008] FamCA 744
- Case
- [2008] FamCA 744
- Decision Date
CaseChat Overview and Summary
The central legal issue before Fowler J was whether the mother had established sufficient grounds to warrant a stay of the existing orders. This required the court to consider the principles governing the grant of a stay, particularly in the context of family law proceedings where appeals are pending.
Fowler J dismissed the mother's application for a stay. While the reasoning for this dismissal is not elaborated upon in the provided text, the decision indicates that the threshold for granting a stay was not met. The court's approach would have involved weighing the potential prejudice to the parties and the merits of the appeal against the need for certainty and finality in the original orders.
The court reserved the costs of the stay application, ordering that the matter could be relisted 14 days after the determination of the appeal. This indicates that the final disposition of costs related to this interlocutory application was contingent upon the outcome of the appeal proceedings.
Orders
Orders of the court
1.
The mother’s application for a stay of Orders made by me on 12 August 2008 is dismissed.
2.
The costs of the application are reserved pending the determination of the Appeal. The matter of costs may be re-listed by arrangement with my Associate, 14 days after the determination of the 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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