FAMILY COURT OF AUSTRALIA
| GROTH & BANKS (NO. 2) | [2017] FamCA 36 |
| FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Where the father applied for a stay of orders pending the determination of his appeal from final parenting orders – where the application was opposed by the mother – where the father established a proper basis for a stay – application granted. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth), rr 22.11(2) |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| APPLICANT: | Mr Groth |
| RESPONDENT: | Ms Banks |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 865 | of | 2012 |
| DATE DELIVERED: | 31 January 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 20 January 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirkham QC |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Hoult |
| SOLICITOR FOR THE RESPONDENT: | Ian Robertson Legal |
Orders
That the father’s Application in a Case filed 18 January 2017 is granted.
That the operation of the Order of the Family Court of Australia at Melbourne made on 13 January 2017 be stayed pending the hearing and determination of the father’s appeal against the Orders of 13 January 2017 or until further Order.
That the Orders made 1 December 2014 as amended by Orders made 5 October 2015 remain in full force and effect.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Groth & Banks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 865 of 2012
| Mr Groth |
Applicant
And
| Ms Banks |
Respondent
REASONS FOR JUDGMENT
The father brings an Application in a Case, for a stay of final parenting orders. The final parenting orders were made by me on 13 January 2017 following a four day trial. The father has filed a Notice of Appeal which enlivens the machinery in Rule 22.11(2) of the Family Law Rules 2004 (Cth) (“the Rules”).
The application to stay the final orders is opposed by the respondent mother who was also the respondent in the trial.
The child the subject of the parenting orders is J aged…
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- AGLC
- Groth and Banks (No 2) [2017] FamCA 36
- Case
- [2017] FamCA 36
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether to grant a stay of the 13 January 2017 orders. This required the court to consider the principles governing the grant of interlocutory injunctions, specifically the balance of convenience and the prospects of success of the father's appeal. The court also had to determine whether the existing orders should remain in force during the period of the stay.
Thornton J granted the father's application, ordering that the operation of the 13 January 2017 orders be stayed pending the determination of the father's appeal or until further order. The court reasoned that a stay was necessary to preserve the status quo and prevent the appeal from becoming nugatory. The existing orders of 1 December 2014, as amended, were ordered to remain in full force and effect.
Orders
Orders of the court
1.
That the father’s Application in a Case filed 18 January 2017 is granted.
2.
That the operation of the Order of the Family Court of Australia at Melbourne made on 13 January 2017 be stayed pending the hearing and determination of the father’s appeal against the Orders of 13 January 2017 or until further Order.
3.
That the Orders made 1 December 2014 as amended by Orders made 5 October 2015 remain in full force and effect.
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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