Hansford and Phillips (No.4) - [2019] FCCA 1379

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSFORD & PHILLIPS (No.4)

[2019] FCCA 1379

Catchwords:
FAMILY LAW – Stay application pending appeal – orders reducing time spent – whether a s 11F report should be ordered before a Rice & Asplund hearing – consideration of principles in Hart & Sellwood – consideration of principles in Aldridge & Keaton.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Hadkinson v Hadkinson [1952] 2 All ER 567

Rice & Asplund (1978) 6 Fam LR 570

Goode v Goode (2006) 206 FLR 212
Aldridge v Keaton (2009) 235 FLR 450
Hart & Sellwood (2016) FamCAFC 254

Applicant:

MS HANSFORD

Respondent:

MR PHILLIPS

File Number:

ADC 4008 of 2013

Judgment of:

Judge Young

Hearing date:

4 April 2019

Date of Last Submission:

4 April 2019

Delivered at:

Darwin

Delivered on:

4 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms Abbott

Solicitors for the Applicant:

D’Angelo Kavanagh

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

Jacqui Ion Lawyers Pty Ltd

ORDERS

That order 4 of the orders made 28 February 2019 be stayed pending appeal.
That the application for a stay of orders 1, 2 and 3 of the orders made 28 February 2019 be dismissed.
The costs of this application be reserved to the appeal court.

IT IS NOTED that publication of this judgment under the pseudonym Hansford & Phillips (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 4008 of 2013

MS HANSFORD

Applicant

And

MR PHILLIPS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for a stay pending appeal. It concerns two children, [X] and [Y], who are 15 and 11 years old respectively. The proceeding is a long-running one. It began in 2015 when Judge Hughes made orders in Canberra permitting the mother to relocate to Adelaide and orders for the children to live with her in Adelaide but if the father relocated to Adelaide, orders for equal time. The father relocated to Adelaide shortly after and for the past three to three and a half years the children have been living with their mother and father on an equal time weekly basis.
Proceedings before me commenced in September 2017 when the mother filed an initiating application seeking variation of the parenting orders for the children to live with her. I dismissed that application summarily in November 2017 after considering the principles in Rice & Asplund and I was satisfied her application had no merit.
The matter came back before me on 20 November 2018 with the father’s application in a case seeking the delivery up of [Y] and, in the alternative, a recovery order. The father’s affidavit filed on the same date referred to [Y] having dislocated or injured her knee while…

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: [2019] FCCA 1379
Decision Date: 4 April 2019

CaseChat Overview and Summary

This matter concerned an application for a stay of certain orders made by Judge Young on 28 February 2019. The application was brought by Hansford and Phillips (No.4), who sought to stay orders 1, 2, 3, and 4 of the previous judgment pending an appeal.

The primary legal issue before the court was whether to grant a stay of the existing orders. Specifically, the court had to determine whether to grant a stay of orders 1, 2, and 3, and separately, whether to grant a stay of order 4, pending the determination of an appeal.

In reaching its decision, the court considered the principles governing applications for a stay of judgment pending appeal. The court granted a stay of order 4, but dismissed the application for a stay of orders 1, 2, and 3. The costs associated with this application were reserved for the appeal court to determine.

Orders

Orders of the court

That order 4 of the orders made 28 February 2019 be stayed pending appeal.

That the application for a stay of orders 1, 2 and 3 of the orders made 28 February 2019 be dismissed.

The costs of this application be reserved to the appeal court.

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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