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Groth and Banks (No 2)

Groth and Banks (No 2)

Case [2017] FamCA 36 31 January 2017

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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
Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Clemett and Clemett (1981) FLC 91-013
Friscioni and Friscioni [2009] FamCAFC 43
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No1] (1986) 160 CLR 220

APPLICANT:

Mr Groth

RESPONDENT:

Ms Banks

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

865

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…

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 Groth and Banks (No 2)

Details

AGLC: Groth and Banks (No 2) [2017] FamCA 36
Case: [2017] FamCA 36
Decision Date: 31 January 2017

CaseChat Overview and Summary

In *Groth and Banks (No 2)*, Thornton J of the Family Court of Australia considered an application by the father seeking a stay of orders made by the Family Court on 13 January 2017, pending his appeal against those orders. The father also sought to maintain the operation of existing orders made on 1 December 2014, as amended on 5 October 2015.

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

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Groth and Banks (No 2) [2017] FamCA 36

Most Recent Citation

Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598

Cases citing this decision · 1 of 1 shown

Hotchkiss & Marek (No 2)
[2021] FedCFamC2F 598 Para 12

…In Groth & Banks (No. 2) [2017] FamCA 36, Thornton J made the following remarks outlining authority specifically in relation to parenting orders: 16.In Friscioni and Friscioni [2009] FamCAFC 43, the Full Court (Boland, O’Ryan and Le Poer Trench JJ) outlined the relevant principles and stated that in cases where a…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Searle and Mellor
[2016] FCCA 2698 Para 1

…ummarised by the Full Court in Aldridge & Keaton (Stay Appeal) and applied in Sullivan & Tyler And Anor (No 2) [2015] FamCAFC 179 and Searle & Mellor [2016] FCCA 2698 (20 October 2016) for the making of a stay pending an appeal.…
Sullivan and Tyler and Anor; (No. 2)
[2015] FamCAFC 179 Para 1

…the father relied upon the principles summarised by the Full Court in Aldridge & Keaton (Stay Appeal) and applied in Sullivan & Tyler And Anor (No 2) [2015] FamCAFC 179 and Searle & Mellor [2016] FCCA 2698 (20 October 2016) for the making of a stay pending an appeal.…
Rilak & Tsocas (No 2)
[2015] FamCA 439 Para 1

…y application referred to in Aldridge & Keaton (Stay Appeal) and in Trahn and Long (No 2) [2008] FamCAFC 194. He also relied on Rilak and Tsocas No 2 [2015] FamCA 439; Redmond and Redmond (Stay) [2014] FamCA 382; and Cape and Cape (No 2) [2013] FamCAFC 178.…
Redmond and Redmond (Stay)
[2014] FamCA 382 Para 1

…n (Stay Appeal) and in Trahn and Long (No 2) [2008] FamCAFC 194. He also relied on Rilak and Tsocas No 2 [2015] FamCA 439; Redmond and Redmond (Stay) [2014] FamCA 382; and Cape and Cape (No 2) [2013] FamCAFC 178.…
R & P Boland Nominees Pty Ltd v Hobbs
[2013] VSCA 66 Para 1

…Counsel for the father relied upon the decision of B & P Boland Nominees v Hobbs [2013] VSCA 66 and the cases cited therein and Sun Alliance Insurance Ltd v Massoud [1989] VR 8 and Smyth v Shire of Murrindindi [2003] VSCA 75 as to the preliminary assessment of the strength of the proposed appeal and whether the a…
Aldridge & Keaton (Stay Appeal)
[2009] FamCAFC 106 Para 3

…In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“ Aldridge & Keaton (Stay Appeal) ”), the Full Court (Bryant CJ, Boland and Crisford JJ) outlined many of the principles to be applied in determining an application for a stay of orders both in the general law and for parenting proceedings.…
Friscioni & Friscioni
[2009] FamCAFC 43 Para 5

…In Friscioni and Friscioni [2009] FamCAFC 43, the Full Court (Boland, O’Ryan and Le Poer Trench JJ) outlined the relevant principles and stated that in cases where a stay of parenting orders is sought pending an appeal against those orders it has long been recognised that there are other factors that may be relevant…
Trahn & Long (No. 2)
[2008] FamCAFC 194 Para 1

…unsel for the mother also relied on the principles for a stay application referred to in Aldridge & Keaton (Stay Appeal) and in Trahn and Long (No 2) [2008] FamCAFC 194. He also relied on Rilak and Tsocas No 2 [2015] FamCA 439; Redmond and Redmond (Stay) [2014] FamCA 382; and Cape and Cape (No 2) [2013] FamCAFC 178.…
Smyth v Shire of Murrindindi
[2003] VSCA 75 Para 1

…and Nominees v Hobbs [2013] VSCA 66 and the cases cited therein and Sun Alliance Insurance Ltd v Massoud [1989] VR 8 and Smyth v Shire of Murrindindi [2003] VSCA 75 as to the preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case. He emphasised in response to…
CDJ v VAJ
[1998] HCA 67 Para 1

…ard. (12)Her Honour erred at law in the manner in which she interpreted and applied the principles expounded in CDJ v VAJ (1998) 197 CLR 172 in failing to take account of evidence contrary to her own determination. (13)Her Honour’s findings at [163] with respect to proposed travel by the child [overseas] and holidayi…
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd
[1986] HCA 84 Para 4

…f the Commonwealth of Australia v Myer Emporium Limited [No1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature…
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)
[1986] HCA 13 Para 4

…respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 1…
Cape and Cape (No 2)
[2013] FamCAFC 178 Para 1

…) [2008] FamCAFC 194. He also relied on Rilak and Tsocas No 2 [2015] FamCA 439; Redmond and Redmond (Stay) [2014] FamCA 382; and Cape and Cape (No 2) [2013] FamCAFC 178.…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 4

…dings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & K…

Legislation cited in this decision · 2

Family Law Rules 2004 (Cth)
22.11(2) 2 mentions (from Para 1)
Family Law Act 1975 (Cth)
1 mention