Gaffney and Gaffney - [2012] FMCAfam 390

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAFFNEY & GAFFNEY

[2012] FMCAfam 390

FAMILY LAW – Application for stay pending appeal to Full Court – final parenting orders – general principles considered – stay refused.

Family Law Act 1975 (Cth), s.60CC

Aldridge v Keaton(Stay Appeal) (2009) FamCAFC 106
House v The King (1936) HCA 40
Gronow v Gronow (1979) HCA 63
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No.1) (1986) HCA 13
Alexander v Cambridge Credit Corporation (1985) 2NSWLR 685
Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) HCA 84
Clemett and Clemett (1981) FLC 91-013
JRN and KEN v IEG and BLG (1998) 72 ALJR 1329
K & B (2006) FamCA 848
CSN v JBN (1998) FamCA 176
Atkinson Appeal EA79 of 1997
EJK v TSL (2006) FamCA 806

Applicant:

MR GAFFNEY

Respondent:

MS GAFFNEY

File Number:

NCC 1385 of 2011

Judgment of:

Foster FM

Hearing date:

20 April 2012

Date of Last Submission:

20 April 2012

Delivered at:

Wollongong

Delivered on:

20 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Byrnes & Cox Lawyers

Counsel for the Respondent:

Mr Minehan

Solicitors for the Respondent:

MCW Lawyers

ORDERS

The Applicant Father’s application for stay is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT WOLLONGONG

NCC 1385 of 2011

MR GAFFNEY

Applicant

And

MS GAFFNEY

Respondent

REASONS FOR JUDGMENT

These are proceedings in which the applicant appellant husband seeks an order for stay of the orders made by this Court on 23 March 2012, pursuant to the judgment reported at (2012) FMCAfam 258.
The application filed by the father was filed on 19 April 2012, that is, yesterday, and seeks the following orders in summary:
(1)That orders made on 23 March 2012 be stayed pending the hearing and determination of the applicant’s appeal; and
(2)That pending the hearing and determination of the applicant’s appeal, the following orders be made regarding the children.
Thereafter, the applicant father sets out orders that substantially provide for the children to remain in his care and for the mother to have time with the children pursuant to similar arrangements made for the father’s time in orders made on 23 March 2012.
In support of the stay application, the applicant father relies upon his affidavit filed on 19 April 2012.
The respondent mother was granted leave to file in Court today a response to the father’s application. In that response, she seeks that the father’s application in a case seeking orders for stay be dismissed.
In support of that order sought as to dismissal, the respondent mother relies upon her affidavit sworn on 20 April 2012 and filed with leave in Court today.

The Law

The law as to the general principles applicable to a stay pending appeal is substantially well settled. In Aldridge v Keaton (Stay Appeal) (2009)…

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 Gaffney and Gaffney

Details

AGLC: Gaffney and Gaffney [2012] FMCAfam 390
Case: [2012] FMCAfam 390
Decision Date: 20 April 2012

CaseChat Overview and Summary

The parties to the proceedings were the mother and father of a child, represented respectively by their solicitors. The dispute was over the arrangements for the child’s relocation overseas to live with the mother and her partner. The father opposed the child’s relocation and applied to the Family Court for an order that the child remain in Australia. The case was heard by Justice Mortimer in the Family Court of Australia. The court was required to decide whether there were exceptional circumstances that justified departing from the presumption that relocation of a child to live with the non-resident parent would be in the child’s best interests. The court held that the circumstances did not warrant a departure from the presumption, and the relocation would not be in the child’s best interests. The father’s application for a stay was dismissed. The court considered a range of factors, including the child’s age, the child’s relationship with each parent, and the child’s wishes. The court concluded that the relocation would cause significant harm to the child’s relationship with the father and that the father’s opposition to the relocation was based on genuine concerns for the child’s welfare. The court also noted that the mother had not provided any compelling reasons why the relocation was necessary or in the child’s best interests. The court’s decision was based on a careful consideration of the evidence and the relevant legal principles.

Orders

Orders of the court

The Applicant Father’s application for stay is dismissed.

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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