KELLETT & KELLETT - [2012] FamCA 566

FAMILY COURT OF AUSTRALIA

KELLETT & KELLETT

[2012] FamCA 566

FAMILY LAW - PRACTICE AND PROCEDURE – Stay of proceedings – Where the father seeks a stay for his appeal regarding orders allowing the mother to return to Indonesia with the child – Where there is a real risk that the father’s appeal will be rendered nugatory if the stay is not granted – Stay granted

Sheldon and Weir (No 4) [2010] FamCA 1214

APPLICANT:

Ms Kellett

RESPONDENT:

Mr Kellett

FILE NUMBER:

SYC

3121

2012

DATE DELIVERED:

13 July 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

13 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

KDB Holmes Solicitors

COUNSEL FOR THE FIRST RESPONDENT:

Mr Dura

SOLICITOR FOR THE FIRST

RESPONDENT:

Clarkekann Lawyers

Orders

IT IS ORDERED

That subject to compliance by the father with the conditions referred to in these orders the orders made by the Court on 13 July 2012 be stayed until the disposition by the Full Court of the father’s appeal.
That not later than 4.00 pm on Monday 16 July 2012 the father file and serve a Notice of Appeal and an Application for expedition in relation to the Appeal.
That in the event that the father fails to comply with order 2 then order 1 is discharged.
That the father expeditiously prosecute the Appeal so as to ensure that the matter can be heard by the Full Court on 25 July 2012.
That the mother is restrained from removing the child L KELLETT born … July 2003 from the Commonwealth of Australia before the disposition of the Appeal.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS REQUESTED

That the Australian Federal Police place the above named child on the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and maintain him on the PACE Alert System until further order of the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kellett & Kellett (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 SYDNEY

FILE NUMBER: SYC 3121 of 2012

Ms Kellett

Applicant

And

Mr Kellett

First Respondent

REASONS FOR JUDGMENT

Before the Court are proceedings in relation to parenting of a child, L Kellett (“the child”), born in July 2003. Today, judgment was handed down in relation to an application by the mother that she be permitted to return with the child to Indonesia, which is the country of his habitual residence and the country from which he was abducted by the father…

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 KELLETT & KELLETT

Details

AGLC: KELLETT & KELLETT [2012] FamCA 566
Case: [2012] FamCA 566
Decision Date: 13 July 2012

CaseChat Overview and Summary

In the matter of *Kellett & Kellett*, Rees J of the Family Court of Australia considered an application by the father concerning existing court orders made on 13 July 2012. The dispute involved the mother's potential removal of the child, L Kellett, from Australia, and the father's intention to appeal the earlier orders.

The primary legal issues before the court were whether to grant a stay of the existing orders pending the father's appeal, and whether to restrain the mother from removing the child from the Commonwealth of Australia. The court also had to consider the conditions under which such a stay would be granted and the timeline for the father to initiate his appeal and prosecute it expeditiously.

Rees J reasoned that a stay of the existing orders was appropriate, subject to the father complying with specific conditions. These conditions included filing and serving a Notice of Appeal and an Application for Expedition by 4.00 pm on Monday, 16 July 2012, and expeditiously prosecuting the appeal to ensure it could be heard by the Full Court on 25 July 2012. The court also restrained the mother from removing the child from Australia before the disposition of the appeal. The court further ordered that the Australian Federal Police place the child on the PACE Alert System.

Orders

Orders of the court

IT IS ORDERED

That subject to compliance by the father with the conditions referred to in these orders the orders made by the Court on 13 July 2012 be stayed until the disposition by the Full Court of the father’s appeal.

That not later than 4.00 pm on Monday 16 July 2012 the father file and serve a Notice of Appeal and an Application for expedition in relation to the Appeal.

That in the event that the father fails to comply with order 2 then order 1 is discharged.

That the father expeditiously prosecute the Appeal so as to ensure that the matter can be heard by the Full Court on 25 July 2012.

That the mother is restrained from removing the child L KELLETT born … July 2003 from the Commonwealth of Australia before the disposition of the Appeal.

That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS REQUESTED

That the Australian Federal Police place the above named child on the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and maintain him on the PACE Alert System until further order of the Court.

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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