Champness and Hansen (No. 2) - [2008] FamCA 1012

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

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…

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 Champness and Hansen (No. 2)

Details

AGLC: Champness and Hansen (No. 2) [2008] FamCA 1012
Case: [2008] FamCA 1012
Decision Date: 10 November 2008

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an application by the father seeking a stay of orders made by Justice Burr on 30 June 2008. The dispute concerned the father's attempt to prevent the enforcement of these earlier orders pending the outcome of an appeal.

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

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.

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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