Graham and Kovacs (No 5)

FAMILY COURT OF AUSTRALIA

GRAHAM & KOVACS (NO 5) [2015] FamCA 1115

FAMILY LAW – CHILDREN – CASE APPLICATION – application dismissed – consideration of best interests of children – where a stay of orders is sought pending appeal – where if stay granted would render appeal nugatory.

Family Law Act 1975 (Cth)

Windsor & Carver [2015] FamCA 668
Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106

APPLICANT: Mr Kovacs

RESPONDENT: Ms Graham

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 762 of 2010

DATE DELIVERED: 10 December 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 10 December 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: Sandra Sinclair Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Susan Gray

Orders

1. Paragraph 2 of the father’s Application in a Case filed 26 November 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Kovacs (No 5) 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 TOWNSVILLE

FILE NUMBER: CSC 762 of 2010

Mr Kovacs

Applicant

And

Ms Graham

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application in a case filed 26 November 2015, the father seeks an order that there be a stay of all orders that I made in these parenting and property proceedings on 13 August 2015 and 29 October 2015.  In support of that application, he relies upon an affidavit, sworn or affirmed by him on 26 November, and also an earlier affidavit which, although not presently before me, contained only one sentence which says “I am the father” or words to like effect.  The father’s application is opposed by both the mother and the independent children's lawyer. 

2. It is unnecessary to recite the extensive history of the litigation between these parties.  It has been sufficiently traversed in the many judgments which I have to date given in these proceedings, most recently being the reasons which I delivered on 21 October for the final orders which I then made.

3. The principles relevant to the grant of a stay pending an appeal have been recently and helpfully traversed by Foster J in Windsor & Carver [2015] FamCA 668 at paragraphs 26 to 33 as follows:

   26. The law as to the general principles applicable to a stay pending appeal is well settled. 

   27. In Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, the Full Court said at [17]-[18]:

   This is an appeal from a discretionary judgment.  There are well established principles on the limits on interference by an appellate court with such a judgment.  See House v The King (1936) HCA 40, Gronow v Gronow (1979) HCA 63 at paragraph 18.

   The principles to be applied in determining an application for stay of orders, both in the general law and in respect of parenting proceedings are also well known.  See The Commissioner of Taxation of the Commonwealth of Australia v Myer…