Brennan & Shaw (No. 2)

Case [2008] FamCA 744

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
Clemett and Clemett (1981) FLC 91-013
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
K and B (2006) FLC 93-288
Wilson and Wilson [1996] FamCA 109
Re Evelyn [1998] FamCA 2379
CSN and JBN [1998] FamCA 1766
SRS and KLS [2005] FamCA 700
EJK and TSL (No 2) [2006] FamCA 806
Waite & Waite-Hollins [2007] FamCA 477
Sampson and Hartnett [2007] FamCA 732
Stephens and Taylor [2008] FamCAFC 74
Bletch and Douglas [2008] FamCA 178
State Central Authority and Ustinov (No 2) [2008] FamCA 368
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

  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.

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

  1. 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.

  2. 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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Details
AGLC
Brennan & Shaw (No. 2) [2008] FamCA 744
Case
[2008] FamCA 744
Decision Date

CaseChat Overview and Summary

In *Brennan & Shaw (No. 2)*, the mother applied to Fowler J for a stay of orders previously made by the court on 12 August 2008. The specific nature of the dispute leading to the original orders is not detailed in this extract, but the application concerned the mother's desire to halt the effect of those existing orders pending the outcome of an appeal.

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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