Garrety and Steyn - [2019] FamCA 238

FAMILY COURT OF AUSTRALIA

GARRETY & STEYN

[2019] FamCA 238

FAMILY LAW – JUDGMENTS – Stay – where final parenting orders and judgment was delivered following a defended hearing – where a change of residence was ordered – where the children are living with the mother – where the father has filed a Notice of Appeal in relation to the final orders and seeks a stay of those orders pending the final outcome of the appeal – where the stay application was opposed by the mother and Independent Children’s Lawyer - where the stay application is dismissed – where the stay would deprive the mother of the benefit of the judgment – where the father is not seeking a stay simpliciter but is seeking orders that are different to the previous orders in place or those sought at the final hearing – where there is no evidence about how this new proposal would affect the welfare of the children –where the best interests of the children and their welfare is given considerable weight – where the children would suffer significant stress and confusion if their residence was again changed – where the mother has been managing a major adjustment for the children and they are settling – where the final orders were put in place in circumstances where the relationship between the mother and children was at risk and the mother was powerless to overcome the father’s attitude and his compliance with the orders – where if the stay application was granted hardship would fall most heavily upon the mother and children – where the impact would be adverse if the stay application was successful and the appeal was unsuccessful – where it would be cruel to remove the children from the mother where they have been told they are permanently living now – where if the stay and appeal were both successful then it would remove any tentative reconciliation between the mother and children.

The Family Law Act 1975 (Cth)

JRN & KEN v IEG & BLG (1998) 72 ALJR 1329; [1998] HCATrans 263
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Trahn & Long (No. 2) [2008] FamCAFC 194
In the Marriage of Clemett [1981] FLC 91-013
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
In the Marriage of Carlin (1977) 29 FLR 497; [1977] FamCA 92

APPLICANT:

Mr Garrety

RESPONDENT:

Ms Steyn

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Newcastle Family Law

FILE NUMBER:

NCC

802

2013

DATE DELIVERED:

17 April 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

15 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom SC

SOLICITOR FOR THE APPLICANT:

Gillard Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Rankin Ellison Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke, Advocate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Newcastle Family Law

Orders

The application filed 3 April 2019 for a stay of orders dated 27 March 2019 is dismissed.

Note:…

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 Garrety and Steyn

Details

AGLC: Garrety and Steyn [2019] FamCA 238
Case: [2019] FamCA 238
Decision Date: 17 April 2019

CaseChat Overview and Summary

Cleary J of the Federal Court of Australia considered an application by Garrety and Steyn for a stay of orders made on 27 March 2019. The precise nature of the underlying dispute leading to the original orders was not detailed in the provided text.

The central legal issue before Cleary J was whether the applicants had established sufficient grounds to warrant a stay of the existing court orders. This would typically involve assessing whether there was a strong prima facie case, a likelihood of irreparable harm if the stay was not granted, and whether the balance of convenience favoured granting the stay.

Cleary J dismissed the application for a stay. While the reasons for this dismissal are not elaborated upon in the provided text, the decision indicates that the applicants failed to satisfy the necessary legal threshold for obtaining such an order. The court's final determination was that the existing orders of 27 March 2019 would remain in effect, subject to the formal entry of the court's decision.

Orders

Orders of the court

The application filed 3 April 2019 for a stay of orders dated 27 March 2019 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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