FEDERAL CIRCUIT COURT OF AUSTRALIA
| JELBART & GANZER (No.2) | [2018] FCCA 3137 |
| Catchwords: FAMILY LAW – “Stay Application” in parenting matter – relevant principles – complete uncertainty of likely result of appeal which in substance will be the exercise of discretion following the consideration of the exercise of discretion – consideration of the disjuncture between Full Court authority of long-standing compared to new appeal ground of alleged failure to engage in active intellectual process” with issue but where later Full Court decision does not refer to earlier authority and relies upon a decision from migration jurisprudence – stay refused. |
| Legislation: Family Law Act 1975 (Cth) |
| Applicant: | MR JELBART |
| Respondent: | MS GANZER |
| File Number: | CAC 144 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 21 September 2018 |
| Date of Last Submission: | 21 September 2018 |
| Delivered at: | Canberra |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Eldershaw |
| Solicitors for the Applicant: | Yeend & Associates |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
The Mother’s Application in a Case, filed 5 July 2018, be dismissed.
Costs be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Jelbart & Ganzer (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 144 of 2015
| MR JELBART |
Applicant
And
| MS GANZER |
Respondent
REASONS FOR JUDGMENT
Introduction
When this matter first began, in early February 2017, the primary (but not the only) issue was the amount of time the child, 4 year old [X], was to spend with her Father. The converse of the primary issue was (and remains) necessarily true, namely that this was not (and is not) a “no contact case.”
On 15th May 2017, interim parenting Orders were made by consent (in Chambers), which (summarily stated) provided for the parents to have equal shared parental responsibility in relation to [X],…
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Details
- AGLC
- JELBART & GANZER (No.2) [2018] FCCA 3137
- Case
- [2018] FCCA 3137
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for a stay of orders in a parenting matter, brought by the Mother against the Father. The dispute arose in the context of an appeal from a discretionary judgment.
The court was required to determine the legal principles applicable to stay applications in parenting proceedings, particularly in light of an appeal from a discretionary judgment. This involved considering the established authorities on appellate interference with discretionary judgments and the specific criteria for granting a stay, including the onus on the applicant, the entitlement to the benefit of a judgment, the presumption of correctness of a judgment, the insufficiency of a mere appeal filing, the bona fides of the applicant, the balance of convenience, the risk of the appeal being rendered nugatory, a preliminary assessment of the appeal's strength, the desirability of stability in a child's living arrangements, the timing of the appeal, and the best interests of the child.
The court applied well-established principles from cases such as *House v The King* and *Gronow v Gronow* regarding appellate intervention in discretionary judgments. It noted that a stay application is discretionary and determined on its merits. The court considered the specific factors outlined in *Aldridge & Keaton (Stay Appeal)* and other relevant authorities, including the onus on the applicant, the presumption of correctness of the judgment, and the need to weigh competing rights and the risk of the appeal becoming nugatory. The court also acknowledged the importance of the child's best interests and the desirability of limiting changes to living arrangements.
The Mother's Application in a Case was dismissed, and costs were reserved.
The court was required to determine the legal principles applicable to stay applications in parenting proceedings, particularly in light of an appeal from a discretionary judgment. This involved considering the established authorities on appellate interference with discretionary judgments and the specific criteria for granting a stay, including the onus on the applicant, the entitlement to the benefit of a judgment, the presumption of correctness of a judgment, the insufficiency of a mere appeal filing, the bona fides of the applicant, the balance of convenience, the risk of the appeal being rendered nugatory, a preliminary assessment of the appeal's strength, the desirability of stability in a child's living arrangements, the timing of the appeal, and the best interests of the child.
The court applied well-established principles from cases such as *House v The King* and *Gronow v Gronow* regarding appellate intervention in discretionary judgments. It noted that a stay application is discretionary and determined on its merits. The court considered the specific factors outlined in *Aldridge & Keaton (Stay Appeal)* and other relevant authorities, including the onus on the applicant, the presumption of correctness of the judgment, and the need to weigh competing rights and the risk of the appeal becoming nugatory. The court also acknowledged the importance of the child's best interests and the desirability of limiting changes to living arrangements.
The Mother's Application in a Case was dismissed, and costs were reserved.
Orders
Orders of the court
1.
The Mother’s Application in a Case, filed 5 July 2018, be dismissed.
2.
Costs be reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
I note the following from the Full Court’s decision in Aldridge & Keaton (Stay Appeal).[2] At [17] – [18], the Court said:[2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications, where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B [2006] FamCA 848; (2006) FLC 93-288.[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;· a person who has obtained a judgment is entitled to the benefit of that judgment;· a person who has obtained a judgment is entitled to presume the judgment is correct;· the mere filing of an appeal is insufficient to grant a stay;· the bona fides of the applicant;· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;· the desirability of limiting the frequency of any change in a child’s living arrangements;· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and· the best interests of the child the subject of the proceedings are a significant consideration.
Ratio Decidendi
Legal Principle Established
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