Holinski and Holinski (No. 2) - [2013] FamCA 658

FAMILY COURT OF AUSTRALIA

HOLINSKI & HOLINSKI (NO. 2)

[2013] FamCA 658

FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay pending appeal to Full Court – Interim parenting Orders – Father to have time with the children supervised and unsupervised – Principles in respect of stays considered – Stay granted in part.

Family Law Act 1975 (Cth)

B v B (1986) FLC 91-758
Cape & Cape [2013] FamCAFC 114
Clemett & Clemett (1981) FLC 91-013
Cowling & Cowling (1998) FLC 92-801
CSN & JBN (1998) FamCA 176
Gaffney & Gaffney [2012] FMCAfam 390
Goode & Goode (2006) FCL 93-286, (2007) 36 Fam LR 422, [2006] FamCA 1346
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT:

Ms Holinski

RESPONDENT:

Mr Holinski

INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey

FILE NUMBER:

PAC

129

2013

DATE DELIVERED:

30 August 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

30 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levet

SOLICITOR FOR THE APPLICANT:

Mr Blumberg
Blackman Legal

COUNSEL FOR THE RESPONDENT:

Mr Gersbach

SOLICITOR FOR THE RESPONDENT:

Mr Sant
Turner Freeman Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey
Legal Aid NSW

Orders

Order 2(c) made on 21 August 2013 be stayed pending the hearing of the appeal filed 29 August 2013.
The mother’s Application in a Case for a stay filed 29 August 2013 be otherwise dismissed.
The oral application for costs of each of the parties in respect of the Application in a Case be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holinski & Holinski (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 129 of 2013

Ms Holinski

Applicant

And

Mr Holinski

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

Until yesterday, two young children, N, who is 16 months, and L, who is two and a half, had not seen their father for seven and a half months. Their mother, Ms Holinski, took them with her when she left the family home on 11 January 2013, and had not permitted them to see their father since.
The children’s mother has made it very clear that she does not wish for her children to spend time with their father or his family. The mother also hopes to be permitted to relocate to the United States, her home prior to coming to Australia to marry the father, and would like also to be permitted to take the children to the United States for five weeks prior to the proceedings being resolved.
On 20 August 2013, I heard an application by the father seeking an order that he spend time with the children on an interim basis and the mother’s application for an order…

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 Holinski and Holinski (No. 2)

Details

AGLC: Holinski and Holinski (No. 2) [2013] FamCA 658
Case: [2013] FamCA 658
Decision Date

CaseChat Overview and Summary

This case concerned an application by Ms Holinski (the mother) for a stay of interim parenting orders made by Hannam J of the Family Court of Australia. The interim orders, made on 21 August 2013, permitted Mr Holinski (the father) to spend time with the parties' two young children, N and L, who had not seen their father for approximately seven and a half months. The mother sought to appeal these orders, arguing that the unsupervised time granted to the father was unreasonable, that the court erred in its consideration of evidence, and that an expert report should have been obtained.

The primary legal issue before the court was whether to grant a stay of the interim parenting orders pending the mother's appeal to the Full Court. In determining this, the court was required to consider the established principles for granting a stay, which include that the mere filing of an appeal is insufficient, the onus rests on the applicant to establish a proper basis for the stay, and a person who has obtained a judgment is entitled to its benefit. Further considerations include the bona fides of the applicant, the balance of convenience and competing rights, the risk of the appeal being rendered nugatory, a preliminary assessment of the appeal's strength, the desirability of limiting changes to a child's living arrangements, the timeframe for the appeal, and, crucially, the best interests of the child.

Hannam J reasoned that while the mother was bona fide in her appeal, the grounds of appeal, particularly concerning the court's assessment of evidence and the discretionary decision not to obtain an expert report, involved conflicting assessments of weight, which appellate courts are slow to overturn. The court found that a stay of the order permitting unsupervised time on 1 September 2013 was appropriate, as the appeal on this specific point would likely become academic if not stayed, rendering that aspect of the appeal nugatory. However, the court determined that a full stay of all orders for the father to spend time with the children was not warranted, as the children's need for a meaningful relationship with their father, as highlighted by the Independent Children's Lawyer, outweighed the mother's prospects of success on other grounds of appeal.

Consequently, the court ordered that Order 2(c) of the interim orders, relating to the specific unsupervised time on 1 September 2013, be stayed pending the hearing of the appeal. The mother's application for a stay was otherwise dismissed, and the oral application for costs was reserved.

Orders