Hansford and Phillips (No.4)

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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

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

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

  3. 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

  1. 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.

  2. 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.

  3. 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.

  4. 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…

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Details
Case
[2019] FCCA 1379
Decision Date

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

1.

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

2.

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

3.

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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