Davidson and Davidson (No 2) - [2010] FamCA 7

FAMILY COURT OF AUSTRALIA

DAVIDSON & DAVIDSON (NO. 2)

[2010] FamCA 7

FAMILY LAW - CHILDREN - final parenting orders made - application for a stay - application dismissed

Family Law Act 1975 (Cth) ss 94, 43(1)(c)
Family Law Rules 2004 Chapter 22.

Kelly & Kelly (1981) FLC 91-007
Clemett & Clemett (1981) FLC 91-013
Sampson & Hartnett [2007] FamCA 732

HUSBAND:

Mr Davidson

WIFE:

Ms Davidson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2243

2007

DATE DELIVERED:

14 January 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

14 January 2010

REPRESENTATION

SOLICITOR FOR THE HUSBAND:

Ms. Taefi,

Richard Calley Family Lawyers

COUNSEL FOR THE WIFE:

Ms. Agresta

SOLICITOR FOR THE WIFE:

Schetzer Constantinou

INDEPENDENT CHILDREN’S LAWYER

Ms. Jenkins,

Victoria Legal Aid

Orders

That the wife’s application for a stay of the orders made this day is dismissed.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2243 of 2007

MR DAVIDSON

Husband

And

MS DAVIDSON

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The mother seeks a stay of the parenting orders made earlier today. No Notice of Appeal has been filed. Having regard to the length of the judgment published this morning, neither the mother nor her legal advisers have had an opportunity to read it carefully.
Section 94 of the Family Law Act 1975 provides that an appeal lies to a Full Court of the Family Court of Australia from a decree of the Family Court of Australia such as the parenting orders made this morning. A Notice of Appeal must be filed within 28 days of the date on which the order was pronounced by the judge or such further time as a judge directs.
As no Notice of Appeal has yet been filed, the court cannot know the grounds of the appeal.
The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from. An appeal is “started” by filing a Notice of Appeal; once started, a party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal relates. An application for a stay is heard by the judge who made the order under appeal, unless he or she is unavailable, in which case it can be listed before another judicial officer. See generally Chapter 22 of the Family Law Rules 2004.
Although a Notice of Appeal has not been filed it is practical to dispense with the operation of the Family Law Rules 2004 to the extent necessary for the stay application to be heard now. If the court determines a stay is appropriate, orders could provide for the filing of…

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 Davidson and Davidson (No 2)

Details

AGLC: Davidson and Davidson (No 2) [2010] FamCA 7
Case: [2010] FamCA 7
Decision Date: 14 January 2010

CaseChat Overview and Summary

In *Davidson and Davidson (No 2)*, Brown J of the Family Court of Australia considered an application by the wife for a stay of orders made on the same day.

The primary legal issue before the court was whether the wife's application for a stay of the previously made orders should be granted. Additionally, the court was required to determine whether the matter reasonably necessitated the attendance of counsel and solicitors appearing as counsel, pursuant to Rule 19.50 of the *Family Law Rules 2004*.

Brown J dismissed the wife's application for a stay of the orders. The court reasoned that the circumstances did not warrant a stay. Furthermore, the court found that the matter had indeed reasonably required the attendance of counsel and solicitors appearing as counsel, and made orders to that effect.

Orders

Orders of the court

That the wife’s application for a stay of the orders made this day is dismissed.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

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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