Haering & Willis (No 2) - [2023] FedCFamC1F 914

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haering & Willis (No 2) [2023] FedCFamC1F 914

File number(s): BRC 12158 of 2020

Judgment of: JARRETT J

Date of judgment: 16 October 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Where final parenting orders where made changing residence from respondent to applicant – Where orders were executed and residence changed prior to respondent applying for a stay – Where granting of a stay would result in multiple changes of residence if appeal is unsuccessful – Where only short time until appeal to be heard – Where appeal does not have strong prospects of success – Application dismissed

Legislation: Family Law Act1975 (Cth) Part VII, ss 4AB, 60CC, 60CG

Cases cited:
Aldridge & Keaton [2009] FamCAFC 106

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

Division: Division 1 First Instance

Number of paragraphs: 22

Date of hearing: 16 October 2023

Place: Brisbane

Counsel for the Applicant: Mr Hartwell

Solicitors for the Applicant: Lander Solicitors Qld

Solicitors for the Respondents: Litigants in person

Counsel for the Independent Children’s Lawyer: Ms Bertone

Solicitors for the Independent Children’s Lawyer: ELR law
ORDERS

BRC 12158 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HAERING

Applicant

AND:
MS WILLIS

First Respondent

MR HAERING

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

16 OCTOBER 2023

THE COURT ORDERS THAT:
1.Orders 1, 3, 4, 6, 8 and 9 of the Amended Application in a Proceeding filed on 16 October, 2023 be dismissed.
2.Each party meet their own costs in the proceeding.
3.A copy of the tender bundle compiled by the independent children’s lawyer for the hearing on 26 and 27 July, 2023 be provided to the appellant and to the parties to Appeal NAA237/2023.
4.A copy of the Subpoena Tender Bundle compiled in compliance with orders 8, 9, 10 and 11 of the order of Judge Cassidy of 25 May, 2022 be provided to the Appellant and to the parties to Appeal NAA237/2023.
5.To the extent that leave is necessary in respect of orders 3 and 4 herein, then such leave is granted.

Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act

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.

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Details

Case: [2023] FedCFamC1F 914
Decision Date: 16 October 2023

CaseChat Overview and Summary

The case of Haering & Willis (No 2) involved a dispute concerning the residence of a child following final parenting orders. The respondent had applied for a stay of the execution of the orders, which had already been implemented, resulting in the child changing residence from the respondent to the applicant. The respondent sought the stay on the basis that granting it would avoid multiple changes of residence if the appeal was unsuccessful, and because the appeal was scheduled to be heard in a short time. The Family Court of Australia was tasked with determining whether to grant the stay application.

The primary legal issue before the court was whether the respondent's application for a stay should be granted. This required the court to consider the implications of a potential stay, including the possibility of further changes to the child's residence if the appeal were to fail, the short time frame before the appeal was due to be heard, and the strength of the appeal's prospects of success. The court had to balance the respondent's concern about the child's stability against the applicant's established residence change and the appeal's viability.

The court dismissed the application for a stay. It found that the appeal did not have strong prospects of success and that granting a stay would result in multiple changes of residence if the appeal were to fail. Additionally, the short time frame until the appeal was scheduled to be heard weighed against the respondent's application. The court concluded that the best interests of the child were served by maintaining the current residence arrangement pending the outcome of the appeal.

The final orders of the court included dismissing the stay application and directing that certain bundles of documents be provided to the appellant and the parties involved in the appeal. Each party was also ordered to bear their own costs in the proceeding. The court granted leave where necessary in respect of certain orders.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Orders 1, 3, 4, 6, 8 and 9 of the Amended Application in a Proceeding filed on 16 October, 2023 be dismissed.

2. Each party meet their own costs in the proceeding.

3. A copy of the tender bundle compiled by the independent children’s lawyer for the hearing on 26 and 27 July, 2023 be provided to the appellant and to the parties to Appeal NAA237/2023.

4. A copy of the Subpoena Tender Bundle compiled in compliance with orders 8, 9, 10 and 11 of the order of Judge Cassidy of 25 May, 2022 be provided to the Appellant and to the parties to Appeal NAA237/2023.

5. To the extent that leave is necessary in respect of orders 3 and 4 herein, then such leave is granted.

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.

File number(s):	BRC 12158 of 2020
Judgment of:	JARRETT J
Date of judgment:	16 October 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Where final parenting orders where made changing residence from respondent to applicant – Where orders were executed and residence changed prior to respondent applying for a stay – Where granting of a stay would result in multiple changes of residence if appeal is unsuccessful – Where only short time until appeal to be heard – Where appeal does not have strong prospects of success – Application dismissed
Legislation:	Family Law Act1975 (Cth) Part VII, ss 4AB, 60CC, 60CG
Cases cited:	Aldridge & Keaton [2009] FamCAFC 106 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499
Division:	Division 1 First Instance
Number of paragraphs:	22
Date of hearing:	16 October 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Hartwell
Solicitors for the Applicant:	Lander Solicitors Qld
Solicitors for the Respondents:	Litigants in person
Counsel for the Independent Children’s Lawyer:	Ms Bertone
Solicitors for the Independent Children’s Lawyer:	ELR law

BRC 12158 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HAERING Applicant
AND:	MS WILLIS First Respondent MR HAERING Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	16 OCTOBER 2023