Lenard and Rogers

[2012] FamCA 600

FAMILY COURT OF AUSTRALIA

LENARD & ROGERS [2012] FamCA 600

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – where the wife seeks a stay of proceedings pending her appeal regarding parenting orders that the children no longer live with the wife and instead live with the father – where the court has power to determine a stay when the appeal is not yet filed – where the stay would likely be for a long period of time – where the change from one parenting regime to the other is not so disruptive on the children so as to warrant granting a stay.

Family Law Rules 2004 (Cth) r 22.11(2)

K & B [2006] FamCA 848
Sheldon & Weir (No 4) [2010] FamCA 1214
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT: Ms Lenard

RESPONDENT: Mr Rogers

FILE NUMBER: SYC 1585 of 2010

DATE DELIVERED: 20 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Battley

COUNSEL FOR THE RESPONDENT: Mr Siggins

SOLICITOR FOR THE RESPONDENT: Sweeney Tiggemann

Orders

1. That the application for a stay of Orders made 16 July 2012, pending determination of an appeal, be refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rogers & Lenard 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 1585  of 2010

Ms Lenard

Applicant

And

Mr Rogers

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application to stay the operation of orders which were made on 16 July 2012, at the conclusion of a defended hearing relating to parenting and property settlement.

2. The effect of the orders in relation to parenting was to change the parenting arrangements of the children who had previously lived with their mother, so that they would in future live with their father and spend five days each fortnight with their mother.

3. The orders in relation to property settlement made an adjustment pursuant to section 75(2) which recognised the parenting arrangements.

4. When the matter came before the Court for argument, the mother’s appeal had not been filed but I was provided with a Notice of Appeal which she intended to file. Counsel for the husband objected to the hearing of the application for a stay on the basis of rule 22.11(2) of the Family Law Rules 2004 (Cth) which provides that:

   If an appeal has been started or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

5. Counsel acknowledged that the Court was able to dispense with compliance with the rule but nevertheless submitted that the Court would not deal with the application because the appeal had not been filed.

6. Ryan J dealt with the issue…