Galipo & Anor and Christie - [2021] FCWA 148

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GALIPO & ANOR and CHRISTIE [2021] FCWA 148
CORAM: O'BRIEN J
HEARD: 11 AUGUST 2021
DELIVERED : Ex tempore
FILE NO/S: PTW 320 of 2020
BETWEEN: MR GALIPO and MRS GALIPO
Applicants
AND
MR CHRISTIE
Respondent

Catchwords:

PARENTING - Stay of orders pending appeal - Where the parents of the children are deceased - Where the paternal grandparents and the maternal uncle each sought orders in relation to the children - Where the matter proceeded to trial over 12 days - Where final orders were made on 5 August 2021 for the children to live with the grandparents, and permitting the grandparents to return to Country A with them - Where the uncle has filed an appeal against those orders, and seeks a stay pending the determination of that appeal - Where the uncle concedes that if the stay is granted the appeal should be expedited - Preliminary assessment of the grounds of appeal - Consideration of whether a successful appeal would be rendered nugatory if a stay is not granted - Consideration of other matters relevant to the exercise of discretion in the granting of a stay - Stay granted on strict conditions, on the basis that the appeal can be heard on 5 November 2021 - Turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicants	:	Ms A
Respondent	:	Ms B
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicants	:	Law Firm A
Respondent	:	Law Firm B
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Cape and Cape (2013) FLC 93-549

Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220

Grabar (1976) FLC 90-147
Grassby v The Queen (1989) 168 CLR 1
Gronow v Gronow (1979) 144 CLR 513
Galipo & Anor and Christie [2021] FCWA 140
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Lovell v Lovell (1950) 81 CLR 513
Mallett v Mallett (1984) 156 CLR 605
Monk v Bartram (1891) 1 QB 346
Symes v Commonwealth of Australia (1987) 89 FLR 356

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galipo and Christie has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The matter requiring determination is the application of [Mr Christie] (for convenience, “the uncle”) for a stay of parenting orders made by Duncanson J on 5 August 2021 pending the determination of his appeal filed on 9 August 2021 against those orders. The application is opposed by [Mr Galipo] and [Mrs Galipo] (for convenience, “the grandparents”).
2The proceedings relate to the parenting arrangements to be made for the children [Child A] born [in] 2013, [Child…

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.

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Details

Case: [2021] FCWA 148
Decision Date: 11 AUGUST 2021

CaseChat Overview and Summary

The case involved the paternal grandparents and the maternal uncle of two children whose parents had both died, contesting orders regarding the children's care. The Family Court determined that the children should live with the paternal grandparents and be permitted to return to their home country with them. The maternal uncle, dissatisfied with the outcome, filed an appeal and sought a stay of the orders pending the appeal's determination.

The legal issues for the court were whether the appeal had a reasonable prospect of success, whether a successful appeal would render the orders nugatory if a stay was not granted, and other factors relevant to the exercise of discretion in granting a stay. The court was required to balance the interests of the children against the need to ensure that the appeal could be determined expeditiously.

The court assessed the grounds of appeal and determined that they had a reasonable prospect of success. The court also found that a successful appeal would render the orders nugatory if a stay was not granted, and considered other relevant factors, including the interests of the children. The court granted the stay on strict conditions, including that the appeal be heard by 5 November 2021. The court emphasised that the decision turned on its own facts and circumstances.

The final orders were that the stay of the original orders would be granted on the strict conditions that the appeal be heard by 5 November 2021, and that the appeal should be expedited if the stay was granted. The court did not make any other orders.

Orders