Lenard and Rogers (No 2)

[2012] FamCA 791

FAMILY COURT OF AUSTRALIA

LENARD & ROGERS (NO. 2) [2012] FamCA 791

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Best interests of the child.

FAMILY LAW – COSTS – Between parties – Mother wholly unsuccessful.

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Lenard

RESPONDENT: Mr Rogers

FILE NUMBER: SYC 1585 of 2010

DATE DELIVERED: 7 September 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 7 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Feeney Lawyers

COUNSEL FOR THE RESPONDENT: Mr Siggins

SOLICITOR FOR THE RESPONDENT: Sweeney Tiggemann

Orders

IT IS ORDERED

1. That the applicant wife’s Case Application filed 24 August 2012 be dismissed.

2. That the applicant wife shall pay the respondent husband’s costs of the proceedings this day in the amount of $4000.00 and those costs are to be paid from monies which will be distributed to her pursuant to the orders for property settlement.

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

Ms Lenard

Applicant

And

Mr Rogers

Respondent

REASONS FOR JUDGMENT

1. In the matter of Rogers and Lenard, orders were made by me on 16 July 2012 which caused a change of residence for the children.  The mother lodged an appeal and applied for a stay of those orders.  I dealt with that application and delivered a written judgment.  In that judgment I set out the principles which are applicable in applications of this sort, and I do not propose to repeat the matters there set out.  The mother has brought a further application for a stay relying in part upon the fact that a more competent notice of appeal has been prepared and filed.  Whilst it is the case that the grounds of appeal are better expressed than those in the original appeal, and may attract appellate intervention, if argued, that is not the only matter which I am required to take into account.

2. These children changed residence in mid July of 2012, and have been living with the father for nine days a fortnight, and spending five days a fortnight with their mother.  I am told that the appeal has been listed for hearing in the week commencing 19 November 2012 which is a short time away.  I am not convinced that the welfare of the children requires that there be any change of their residence until such time as the appeal has been dealt with.  Matters are raised by the mother in her affidavit which are disputed by the father.  Those are matters which will, if the appeal succeeds, be agitated before a trial judge other than myself.

3. The matter to which I give the greatest weight in this determination is the need to maintain some stability in these children’s lives, and, in my opinion, having changed their residence only approximately two months ago, I do not consider it to be in their interests that their circumstances be changed again, and I dismiss the wife’s application in relation to the parenting matter.

4. In her application for a stay the wife also seeks a stay of the orders for property settlement which were made at the same time as the parenting orders.  The only ground of her notice of appeal which refers to the property orders is ground 16 which reads:

   In the event that the mother succeeds on any of the foregoing grounds, then the trial judge’s discretion miscarried in the proceedings pursuant to section 79 of the Family Law Act as a result of her Honour relying upon future responsibilities for the care of the children predicated upon the terms of her Honour’s parenting orders.

5. That is not a ground which suggests that there is an appellable error in the property orders.  In my view, that is not a ground which will attract appellate attention, and it is on that basis that I dismiss that application.

6. Counsel for the husband applies for an order that the wife pay the costs of the application which has been dismissed pursuant to s 117(2A) of the Family Law Act 1975 (Cth). I am required to firstly consider the financial circumstances of each of the parties to the proceedings. Each of them is in employment, and each of them will receive substantial amounts of capital by virtue of the orders for property settlement. Neither of the parties is in receipt of a grant of Legal Aid. The proceedings before the court are the second application by the wife for a stay of orders made, and she has been wholly unsuccessful.

7. There was no challenge to the quantum of the husband’s costs.

8. In my view, it is appropriate that she should pay the husband’s costs of the proceedings in the amount of $4000, and those costs are to be paid from moneys which will be distributed to her pursuant to the orders for property settlement.

I certify that the eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 September 2012.

Associate: 

Date:  18 September 2012