CHADWICK & RECKARD (No.2) - [2020] FCCA 3084

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHADWICK & RECKARD (No.2)

[2020] FCCA 3084

Catchwords:
FAMILY LAW – Parenting – stay application.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

House v The King [1936] HCA 40

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

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

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

Applicant:

MS CHADWICK

Respondent:

MR RECKARD

File Number:

CAC 1807 of 2020

Judgment of:

Judge Dunkley

Hearing date:

28 October 2020

Date of Last Submission:

28 October 2020

Delivered at:

Parramatta

Delivered on:

28 October 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Bertand of Sterling Law (Qld)

Solicitors for the Respondent:

Mr Warren of Andrew Warren Associates

ORDERS

The Application in a Case filed on 22 October 2020 is dismissed.
Costs relevant to that application to be determined consequent upon the determination of the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Chadwick & Reckard (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 1807 of 2020

MS CHADWICK

Applicant

And

MR RECKARD

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Ms Chadwick, whom I hereinafter refer to as the appellant and/or mother, and Mr Reckard, whom I hereinafter refer to as the respondent and/or father, are the parents of X, aged 16, who was born in 2004, and Y, aged 12, who was born in 2008.
On 8 October 2020, I delivered an interim parenting judgment and made interim parenting orders.
In general terms, those orders required that the mother return the children from Queensland to live in New South Wales nearby to Town B within 21 days of 8 October 2020. If she did not do so, that the children live with the father until she herself, the mother, could move back, whereupon the children would live with the mother.
On 13 October 2020, the mother filed an appeal to the Family Court of Australia.
That appeal seeks to appeal orders 1, 4, 5, 6 and 18, made on 8 October 2020. The notice of appeal articulates within it 10 grounds of appeal.
On 22 October 2020, the mother filed an application in a case seeking a stay.
In support of that application in a case she relies on an affidavit sworn 22 October 2020, and her legal representative made oral submissions on her behalf.
The father opposes the granting of a stay.
He has filed an affidavit affirmed 28 October 2020. His legal representative made written submissions and provided some oral submissions.
Neither of the affidavits of the mother or the father advances the issues to be considered in deciding whether to stay the orders.
The granting of a stay is a discretionary decision. The cases of Trahn & Long (No. 2), Aldridge & Keaton (Stay Appeal), and Sheldon & Weir (Stay Application), are but some of the many full court decisions relevant to the determination of stays.
One of the…

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 CHADWICK & RECKARD (No.2)

Details

AGLC: CHADWICK & RECKARD (No.2) [2020] FCCA 3084
Case: [2020] FCCA 3084
Decision Date: 28 October 2020

CaseChat Overview and Summary

In the matter of *Chadwick & Reckard (No.2)*, Judge Dunkley of the Family Court of Australia considered an application for a stay. The specific nature of the underlying dispute between the parties is not detailed in the provided text, beyond it being a family law parenting matter.

The primary legal issue before the court was whether to grant a stay of proceedings. This would have had the effect of pausing or preventing further action in the case pending the determination of an appeal.

Judge Dunkley dismissed the application for a stay. The reasoning behind this decision is not elaborated upon in the provided text.

Consequently, the application filed on 22 October 2020 was dismissed. The court ordered that costs associated with this specific application would be determined after the appeal had been resolved.

Orders

Orders of the court

The Application in a Case filed on 22 October 2020 is dismissed.

Costs relevant to that application to be determined consequent upon the determination of the appeal.

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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