Cole and Pearce - [2010] FamCA 42

FAMILY COURT OF AUSTRALIA

COLE & PEARCE

[2010] FamCA 42

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Adjournment

Family Law Act 1975 (Cth)

Sanders and Sanders (1976) 26 FLR 474

APPLICANT:

Ms Cole

RESPONDENT:

Mr Pearce

FILE NUMBER:

MLC

13158

2007

DATE DELIVERED:

20 January 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 January 2010

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Whitelaw

SOLICITOR FOR THE RESPONDENT:

Stella Stuthridge & Associates

Orders

That the application of the mother filed 5 January 2010 be adjourned to a date to be fixed to be heard before the Honourable Justice Dessau for a hearing relating to a stay of the orders made in September 2009 pending an appeal.
That the reasons for judgment this day be transcribed and be placed on the court file.

IT IS NOTED that publication of this judgment under the pseudonym Cole & Pearce is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13158 of 2007

MS COLE

Applicant

And

MR PEARCE

Respondent

REASONS FOR JUDGMENT

I am dealing with an application in the duty list filed by Ms Cole on 5 January 2010, notwithstanding the registry stamp says 5 January 2009. The application is solely directed to a stay of the orders made on 7 September 2009, pending the determination of a dispute by the Full Court. The only reason I am dealing with the matter today is because of the absence of Dessau J, who is on leave and has been on leave for some weeks. Under the rules, a stay application should go to the judge who made the orders but if that judge is unavailable, then some other judge may hear the matter, hence the matter was listed before me today.
The application was supported by an affidavit. In discussion with the parties, I have made it abundantly clear that there is nowhere near sufficient information to enable a stay application to succeed. I do not necessarily want to be critical of a lawyer who acts on a pro bono basis but Ms Cole has told me this morning from the bar table that the affidavit was authored by her pro bono lawyer. In six paragraphs, only two of the paragraphs are directed to the question of the stay. The first paragraph reads:
I have concerns about the orders and the process whereby they were made, and I have been granted leave to appeal the orders.
The orders were final, so there was no basis for an application for leave to appeal. In addition, no application for leave has, in fact, been made. As I understand the position, the matter is listed before the Full Court in March. The second paragraph in the affidavit reads:
Because of my concerns about the orders, I wish to have the orders stayed until the outcome of my appeal to the court, and I…

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 Cole and Pearce

Details

AGLC: Cole and Pearce [2010] FamCA 42
Case: [2010] FamCA 42
Decision Date: 20 January 2010

CaseChat Overview and Summary

In the matter of *Cole and Pearce*, heard before Cronin J, the application concerned a dispute between a mother and father regarding parenting orders. The mother sought an adjournment of her application, filed on 5 January 2010, to a date to be fixed, for a hearing before Justice Dessau. This hearing was intended to address a stay of parenting orders made in September 2009, pending an appeal.

The central legal issue before Cronin J was whether to grant the mother's application for an adjournment of her own application to allow for a hearing on the stay of existing parenting orders. This required consideration of the procedural fairness and the efficient progression of matters before the court, particularly in the context of an impending appeal.

Cronin J ordered that the mother's application be adjourned to a date to be fixed, to be heard before Justice Dessau. The purpose of this adjourned hearing was specifically to address the application for a stay of the September 2009 orders pending the determination of an appeal. The judge also directed that the reasons for this decision be transcribed and placed on the court file.

Orders

Orders of the court

That the application of the mother filed 5 January 2010 be adjourned to a date to be fixed to be heard before the Honourable Justice Dessau for a hearing relating to a stay of the orders made in September 2009 pending an appeal.

That the reasons for judgment this day be transcribed and be placed on the court file.

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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