Dent and Bishop - [2017] FamCA 81

FAMILY COURT OF AUSTRALIA

DENT & BISHOP

[2017] FamCA 81

FAMILY LAW – STAY APPLICATION – Where the mother seeks a stay of final parenting orders – Where the mother has lodged an appeal – Where the final orders provided for no contact with the mother – Where the effective orders if the stay was granted would result in the child living with the father and spending time with the mother – Application of the authority of Clemett & Clemett (1981) FLC-91-013 – Decided changes in the child’s living arrangements should be minimised – Ordered the mother’s application is dismissed

Family Law Act 1975 (Cth), ss 60CC, 64B

Clemett & Clemett (1981) FLC-91-013

APPLICANT:

Ms Dent

RESPONDENT:

Mr Bishop

INDEPENDENT CHILDREN’S LAWYER:

Jennifer Blundell & Associates

FILE NUMBER:

(P)NCC

2650

2014

DATE DELIVERED:

6 February 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

6 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Michelle Thomas Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Blundell & Associates

Orders

The Application in a Case filed by the mother on 9 January 2017 for a stay of the Orders made on 6 December 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dent & Bishop has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 2650/2014

Ms Dent

Applicant

And

Mr Bishop

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

By an Application in a Case filed 9 January 2017, Ms Dent, the mother of the five year old subject child, B, applies for a stay of final parenting orders made by me on 6 December 2016. The application was made within time. The Appeal by the mother was filed on 23 December 2016.
The mother has today represented herself.
The Respondent father by his Response to an Application in a Case, e-filed on 25 January 2017, seeks dismissal of the stay application.
The father is represented by his solicitor today. The Independent Children’s Lawyer (“ICL”) was unable to be present. By prior arrangement, the position of the ICL in relation to the stay was communicated on her behalf by the solicitor for the father. That position was that the stay be dismissed.

Evidence

The documents relied on in respect of the application were as follows:
The Mother
(a)Application in a Case…

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 Dent and Bishop

Details

AGLC: Dent and Bishop [2017] FamCA 81
Case: [2017] FamCA 81
Decision Date: 6 February 2017

CaseChat Overview and Summary

In the matter of *Dent and Bishop*, heard before Cleary J, the application concerned a dispute regarding orders made on 6 December 2016. The mother filed an application on 9 January 2017 seeking a stay of those existing orders.

The central legal issue before the court was whether the mother had established sufficient grounds to warrant a stay of the orders previously made on 6 December 2016. This required the court to consider the principles governing the grant of a stay pending further proceedings or appeals.

Cleary J dismissed the mother's application for a stay. While the specific reasoning is not detailed in the provided text, the outcome indicates that the court was not satisfied that the necessary legal threshold for granting a stay had been met. The application was therefore refused.

Orders

Orders of the court

The Application in a Case filed by the mother on 9 January 2017 for a stay of the Orders made on 6 December 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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