Kane & Bakker (No 2) - [2022] FedCFamC1F 726

Federal Circuit and Family Court of Australia
(DIVISION 1)
Kane & Bakker (No 2) [2022] FedCFamC1F 726

File number(s): SYC 8109 of 2018

Judgment of: AUSTIN J

Date of judgment: 23 September 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application in a proceeding – Stay of orders – Where the mother seeks a stay of interim parenting orders pending the determination of her appeal – Where the stay application appears motivated by the mother’s dissatisfaction with the appealed orders – Where the appeal will not be rendered nugatory if the stay is refused – Where none of the six grounds of appeal pleaded are ostensibly meritorious – Application dismissed – Order made to suspend specified orders during the gazetted Summer school holidays

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 64B, 68B, 69ZL 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01

Cases cited:
Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106

AMS v AIF (1999) 199 CLR 160

Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681

JRN & IEG (1998) 72 ALJR 1329

Kane & Bakker [2022] FedCFamC1F 699

Sheldon & Weir (Stay Application) [2011] FamCAFC 5

Trahn & Long (No.2) [2008] FamCAFC 194

Division: Division 1 First Instance

Number of paragraphs: 34

Date of hearing: 23 September 2022

Place: Newcastle (via video link)

Solicitor for the Applicant: Fox & Staniland Lawyers

Counsel for the Respondent: Mr Sansom SC

Solicitor for the Respondent: ATW Family Law

Solicitor for the Independent Children's Lawyer: Stidwill Lawyers
ORDERS

SYC 8109 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KANE

Applicant

AND:
MS BAKKER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

AUSTIN J

DATE OF ORDER:

23 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.Orders 3(a)(i) and 3(a)(ii) made on 30 August 2022 are suspended during the gazetted Summer school holidays, commencing on or about 21 December 2022 and concluding on or about 26 January 2023.
2.Otherwise, the Application in a Proceeding filed by the respondent mother on 20 September 2022 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kane & Bakker is…

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 Kane & Bakker (No 2)

Details

AGLC: Kane & Bakker (No 2) [2022] FedCFamC1F 726
Case: [2022] FedCFamC1F 726
Decision Date

CaseChat Overview and Summary

The parties involved in the case were Kane, Bakker, and the Independent Children's Lawyer (ICL), with the dispute centering on certain orders made by the court. The matter was brought before the court for appeal, with the mother seeking to have all of the orders set aside. The court was required to decide whether the appealed orders should be stayed unconditionally or if there were any specific reliefs the mother sought in relation to the underlying review application and the proposals of the parties and the ICL.

The court considered the mother's proposal that all of the orders be set aside, but she did not specify what relief she sought in respect of the underlying review application or the respective proposals of the parties and the ICL, which were determined by those orders. The court recognised that the applications could not be left in suspension if the appeal succeeded and had to be either remitted for re-hearing or determined by the Full Court in the re-exercise of discretion. The court concluded that the remedial orders the mother had to ask the Full Court to make would be impossible to reconcile with her prosecution of at least Grounds 2 and 4.

The court determined that the mother had not demonstrated it would be appropriate for the appealed orders to be stayed unconditionally. However, the court was prepared to make orders to clarify that the weekly/fortnightly cycle would not spill into the Summer school holidays. Consequently, the stay application was dismissed, except for the clarification regarding the Summer school holidays.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although the mother proposes that all of the orders be set aside, she does not specify what relief she seeks in respect of the underlying review application or the respective proposals of the parties and the ICL, which were determined by those orders. Their applications cannot be left in suspension if the appeal succeeds. They must either be remitted for re-hearing or determined by the Full Court in the re-exercise of discretion. In either case, the remedial orders she must ask the Full Court to make will be impossible to reconcile with her prosecution of at least Grounds 2 and 4.Conclusion Taking all of those considerations into account, the mother has not demonstrated it would be appropriate for the appealed orders to be stayed unconditionally, though I am prepared to make orders to clarify that the weekly/fortnightly cycle will not spill into the Summer school holidays. Otherwise, the stay application will be dismissed.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 8109 of 2018
Judgment of:	AUSTIN J
Date of judgment:	23 September 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application in a proceeding – Stay of orders – Where the mother seeks a stay of interim parenting orders pending the determination of her appeal – Where the stay application appears motivated by the mother’s dissatisfaction with the appealed orders – Where the appeal will not be rendered nugatory if the stay is refused – Where none of the six grounds of appeal pleaded are ostensibly meritorious – Application dismissed – Order made to suspend specified orders during the gazetted Summer school holidays
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 64B, 68B, 69ZL 114 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited:	Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 AMS v AIF (1999) 199 CLR 160 Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 JRN & IEG (1998) 72 ALJR 1329 Kane & Bakker [2022] FedCFamC1F 699 Sheldon & Weir (Stay Application) [2011] FamCAFC 5 Trahn & Long (No.2) [2008] FamCAFC 194
Division:	Division 1 First Instance
Number of paragraphs:	34
Date of hearing:	23 September 2022
Place:	Newcastle (via video link)
Solicitor for the Applicant:	Fox & Staniland Lawyers
Counsel for the Respondent:	Mr Sansom SC
Solicitor for the Respondent:	ATW Family Law
Solicitor for the Independent Children's Lawyer:	Stidwill Lawyers

SYC 8109 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KANE Applicant
AND:	MS BAKKER Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	AUSTIN J
DATE OF ORDER:	23 SEPTEMBER 2022