FAMILY COURT OF AUSTRALIA
| CHAMPNESS & HANSEN (NO. 2) | [2008] FamCA 1012 |
| FAMILY LAW – ORDERS – STAY – application by father for stay of parenting orders pending appeal – orders provide for relocation of children to Ireland – consideration of best interests of the children – application for stay was filed over three months after Notice of Appeal filed – mother has made arrangements for relocation – consideration of the hardship to the appellant if stay refused compared with the hardship to the respondent if stay granted – whether refusal of the stay renders a successful appeal nugatory – consideration of merits of the appeal – application for stay refused |
| Family Law Rules 2004 (Cth) r 22.12 |
| Carlin and Carlin (1977) FLC 90-320 In the marriage of Kelly (1981) FLC 91-017 Clemett and Clemett (1981) FLC 91-013 EJK and TSL (No 4) [2006] FamCA 1022 Brennan and Shaw (Stay Appeal) [2008] FamCAFC 138 W and W (unreported, 10 October 1996) Sampson and Hartnett [2007] FamCA 732 CSN v JBN (1998) 24 Fam LR 174 Sanders (1976) FLC 90-078 K and B (2006) FLC 93-288 EJK and TSL (No 2) (2006) 35 Fam LR 590 |
| APPLICANT: | Mr Champness |
| RESPONDENT: | Ms Hansen |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
| FILE NUMBER: | ADF | 226 | of | 2005 |
| DATE DELIVERED: | 10 NOVEMBER 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| EX TEMPORE REASONS OF: | BURR J |
| HEARING DATE: | 10 NOVEMBER 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR HEFFERNAN |
| SOLICITOR FOR THE APPLICANT: | HEFFERNAN & CO |
| COUNSEL FOR THE RESPONDENT: | GRAEME D HEMSLEY |
| SOLICITOR FOR THE RESPONDENT: | GRAEME HEMSLEY |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MS HURLEY |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | LEGAL SERVICES COMMISSION |
Orders
That the father’s Application in a Case filed on 30 October 2008 seeking a stay of the Orders made by the Honourable Justice Burr on 30 June 2008 be refused.
That liberty is granted to the parties and the Independent Children’s Lawyer to make application for costs in relation the father’s aforesaid Application in a Case filed on 30 October 2008 within twenty-eight [28] days of the determination of the Appeal against the Orders made by the Honourable Justice Burr on 30 June 2008 being delivered by the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Champness & Hansen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 226 of 2005
| MR CHAMPNESS |
Applicant
And
| MS HANSEN |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
I have before me for determination the father’s Application in a Case filed on 30 October 2008 in which he seeks that my Orders made on 30 June 2008, after a trial on evidence in these proceedings, be stayed pending the outcome of an Appeal that he has lodged against that decision of mine.
Rule 22.12 of the Family Law Rules provides the relevant detail as to a stay application. What that Rule makes clear is that…
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- AGLC
- Champness and Hansen (No. 2) [2008] FamCA 1012
- Case
- [2008] FamCA 1012
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Full Court was whether the father had established sufficient grounds to warrant a stay of the existing orders. This required the court to assess the merits of the father's proposed appeal and the potential prejudice he might suffer if the stay was not granted, balanced against the interests of the children and the other parties.
The Court refused the father's application for a stay. While the specific reasoning is not detailed in the provided text, the refusal indicates that the father failed to satisfy the necessary legal threshold for granting a stay, likely meaning the appeal did not appear to have substantial merit or that the balance of convenience did not favour granting the stay. Liberty was granted to the parties and the Independent Children's Lawyer to seek costs in relation to the stay application within 28 days of the determination of the appeal.
Orders
Orders of the court
1.
That the father’s Application in a Case filed on 30 October 2008 seeking a stay of the Orders made by the Honourable Justice Burr on 30 June 2008 be refused.
2.
That liberty is granted to the parties and the Independent Children’s Lawyer to make application for costs in relation the father’s aforesaid Application in a Case filed on 30 October 2008 within twenty-eight [28] days of the determination of the Appeal against the Orders made by the Honourable Justice Burr on 30 June 2008 being delivered by the Full Court.
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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