Gorman and Huffman (No 2) - [2015] FamCA 411

FAMILY COURT OF AUSTRALIA

GORMAN & HUFFMAN (NO. 2)

[2015] FamCA 411

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Principles in respect of stays considered – where risk that the appeal may be rendered nugatory – where preliminary assessment of prospects of success on appeal – where pre-judgment parenting arrangements were unsatisfactory – best interests of the children.

Aldridge & Keaton [2009] FamCAFC 106
Cape & Cape [2013] FamCAFC 114
Clemett & Clemett (1981) FLC 91-013
CSN & JBN [1998] FamCA 1766
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT:

Ms Gorman

RESPONDENT:

Mr Huffman

INDEPENDENT CHILDREN’S LAWYER:

Mr Naidovski

FILE NUMBER:

PAC

3882

2011

DATE DELIVERED:

2 June 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

29 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Connor

SOLICITOR FOR THE APPLICANT:

Martin Street Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Maddox

SOLICITOR FOR THE RESPONDENT:

Caldwell Martin Cox

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Naidovski of Legal Aid NSW

Orders

The mother’s Application in a Case dated 29 April 2015 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3882 of 2011

Ms Gorman

Applicant

And

Mr Huffman

Respondent

REASONS FOR JUDGMENT

Introduction & Background

History of the Proceedings

In an Application in a Case dated 29 April 2015 the Respondent wife/mother seeks that parenting and property Orders made on the same date be stayed pending an appeal.
The orders under appeal relate to parenting and property proceedings following the breakdown of an 11 year relationship in which the parties had three children. The application for stay of the property orders has been dealt with. This judgment concerns the application for stay of parenting orders only.
The proceedings were originally commenced in the Federal Circuit Court in August 2011, and on 22 August 2012, the proceedings were listed for trial in that Court but were subsequently transferred to the Family Court.
The proceedings before me were heard over 12 days in October and December 2014 and January 2015.
From the date of separation, up until the date judgment was delivered on 29 April 2015 the children were living with their mother and spending time with their father, either pursuant to court orders or an arrangement agreed to by the parents.
It was a significant issue in the trial before me that commencing in about late August 2012 the children made complaints to their mother, concerning alleged abuse by their father and his wife in the paternal home when the children were spending time with their father. The issue of the children’s complaints and the allegations against the father and…

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 Gorman and Huffman (No 2)

Details

AGLC: Gorman and Huffman (No 2) [2015] FamCA 411
Case: [2015] FamCA 411
Decision Date: 2 June 2015

CaseChat Overview and Summary

In *Gorman and Huffman (No 2)*, Hannam J of the Family Court of Australia considered an application by the mother for a stay of proceedings. The dispute concerned parenting arrangements for the children, with the mother seeking to stay the proceedings pending an appeal against earlier interim orders.

The primary legal issue before the court was whether the mother had established grounds for a stay of proceedings. This required the court to assess the risk that the appeal might be rendered nugatory, to undertake a preliminary assessment of the prospects of success on appeal, and to consider the best interests of the children, particularly in light of the unsatisfactory nature of the pre-judgment parenting arrangements.

Hannam J applied the principles governing applications for stays of proceedings. The court considered the potential for the appeal to become futile if the stay was not granted, and evaluated the likelihood of the appeal succeeding. Crucially, the court weighed these factors against the paramount consideration of the children's best interests, noting the existing unsatisfactory arrangements.

The mother’s Application in a Case dated 29 April 2015 was dismissed.

Orders

Orders of the court

The mother’s Application in a Case dated 29 April 2015 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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