Hutcheson and Meli (No 2) - [2016] FamCA 646

FAMILY COURT OF AUSTRALIA

HUTCHESON & MELI (NO 2)

[2016] FamCA 646

FAMILY LAW – STAY – where the father seeks a stay of orders permitting the mother to relocate to the United Kingdom – where the application is opposed – where consideration is given to the principles to be applied in determining an application for a stay – where the application is dismissed.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Cape & Cape [2013] FamCAFC 114
Champness & Hansen (No 2) [2008] FamCA 1012
Gronow v Gronow (1979) 144 CLR 513
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No 2) [2008] FamCAFC 194

APPLICANT:

Mr Hutcheson

RESPONDENT:

Ms Meli

FILE NUMBER:

ADC

2177

2014

DATE DELIVERED:

10 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

5 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Duncan Basheer Hannon

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Clelands Lawyers

Orders

The Application in a Case filed by the father on 26 July 2016 is dismissed.
The stay of paragraph 28 of the orders of 25 May 2016 is revoked.
Paragraph 28 of the orders of 25 May 2016 is amended to provide for payment to be made by 4.00 pm on 12 August 2016.
Paragraph 28 of the orders of 25 May 2016 is further amended to include release of funds upon further order of the Court for enforcement of any orders following the decision of the Full Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2177 of 2014

Mr Hutcheson

Applicant

And

Ms Meli

Respondent

REASONS FOR JUDGMENT

Introduction

By Application in a Case filed by the father on 26 July 2016, the father Mr Hutcheson, sought that many of the orders made by me on 25 May 2016 be stayed. The mother, Ms Meli opposed the stay.

Background

Following a lengthy trial in February 2016 I made final orders on 25 May 2016 for reasons which were then published. The orders made provided for the mother to have sole parental responsibility for the child B born in 2011 (“the child”) and that the child live with the mother.
There were specific orders made setting out the time the father was to spend with the child, whilst the child remained in Australia…

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: [2016] FamCA 646
Decision Date: 10 August 2016

CaseChat Overview and Summary

In the matter of *Hutcheson and Meli (No 2)*, Dawe J of the Federal Circuit Court of Australia considered an application filed by the father on 26 July 2016. The dispute concerned the enforcement and amendment of previous orders made on 25 May 2016, specifically relating to paragraph 28 of those orders.

The primary legal issues before the Court were whether to dismiss the father's application, whether to revoke a previously granted stay on paragraph 28 of the 25 May 2016 orders, and how to amend paragraph 28 to ensure the effective enforcement of any future orders arising from a decision of the Full Court.

Dawe J's reasoning led to the dismissal of the father's application. The Court revoked the stay that had been placed on paragraph 28 of the 25 May 2016 orders. Furthermore, the Court amended paragraph 28 to set a specific payment deadline of 4.00 pm on 12 August 2016 and to include a provision for the release of funds upon further order of the Court, specifically for the enforcement of any orders that might follow the Full Court's decision.

Orders

Orders of the court

The Application in a Case filed by the father on 26 July 2016 is dismissed.

The stay of paragraph 28 of the orders of 25 May 2016 is revoked.

Paragraph 28 of the orders of 25 May 2016 is amended to provide for payment to be made by 4.00 pm on 12 August 2016.

Paragraph 28 of the orders of 25 May 2016 is further amended to include release of funds upon further order of the Court for enforcement of any orders following the decision of the Full Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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