FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOWELL & GARSON (No.2) | [2016] FCCA 3050 |
| Catchwords: FAMILY LAW – Stay Application – appellant Father seeking a stay of Order 1 of Orders made on 7 October 2016 by His Honour Judge McNab preventing the child of the relationship from changing schools pending the outcome of his appeal – application dismissed. |
| Legislation: Family Law Act 1975, s.60CC Federal Circuit Court Rules 2001, r.1.05 |
| Cases cited: House v The King (1936) 55 CLR 499 |
| Applicant: | MR HOWELL |
| Respondent: | MS GARSON |
| File Number: | SYC 4888 of 2009 |
| Judgment of: | Judge Bender |
| Hearing date: | 21 November 2016 |
| Date of Last Submission: | 21 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 25 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bartfeld QC |
| Solicitors for the Applicant: | Kenna Teasdale Lawyers |
| Counsel for the Respondent: | Mr Kirkham QC |
| Solicitors for the Respondent: | Nicholes Family Lawyers |
ORDERS
The Father’s application for a stay of Order 1 of the Orders made
7 October 2016 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Howell & Garson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
SYC 4888 of 2009
| MR HOWELL |
Applicant
And
| MS GARSON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 October 2016 Judge McNab handed down final orders which varied the parenting orders relating to the parties’ daughter X born (omitted) 2006 (“X”) that had been made by consent in the Federal Magistrates’ Court on 10 November 2011.
Order 1 of the Orders made by Judge McNab on 7 October 2016 provides as follows:
1. Order 17 of the Orders made 10 November 2011 be discharged and in lieu thereof each party forthwith do all such acts and things necessary to enrol X (“X”) born (omitted) 2006 at (omitted) School and facilitate her attendance at that school from the commencement of Term 1 in 2017.
Order 17 of the Orders made 10 November 2011 provided for the parties to enrol X at (omitted) School (“(omitted)”).
On 2 November 2016 the Father filed a Notice of Appeal seeking that Order 1 of the Orders dated 7 October 2016 be set aside. The Notice of Appeal sets out five grounds of appeal which will be set out in detail in this judgment.
Contemporaneously with the filing of the Notice of Appeal, the Father filed an Application in a Case…
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- AGLC
- Howell and Garson (No.2) [2016] FCCA 3050
- Case
- [2016] FCCA 3050
- Decision Date
CaseChat Overview and Summary
The sole legal issue before Judge Bender was whether to grant the Father's application for a stay of the 7 October 2016 order. This required the court to consider the grounds upon which a stay could be granted and whether the Father had satisfied the necessary legal threshold for such relief.
Judge Bender dismissed the Father's application. While the reasoning behind this dismissal is not elaborated upon in the provided text, the outcome indicates that the Father failed to demonstrate sufficient grounds to warrant a stay of the existing court order. Consequently, the order made on 7 October 2016 remains in effect.
Orders
Orders of the court
1.
The Father’s application for a stay of Order 1 of the Orders made
7 October 2016 be dismissed.
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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