Lockley and Bardot (Stay Application)

Case [2016] FCCA 2210

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOCKLEY & BARDOT (Stay Application) [2016] FCCA 2210
Catchwords:
FAMILY LAW – Stay application – basic principles – significant history of litigation between the parties – issues raised by Mother in relation to the Father’s mental health dealt with at trial but for which there was no relevant evidentiary basis – Mother’s significant inability to accept medical and other specialist evidence confirming that there was no risk to the child spending time with the Father – strong evidence of the Mother and child being in an “enmeshed relationship” that involves a “separation dynamic” – evidence of the child being “conditioned” by the Mother adversely to the child’s relationship with the Father – the granting of a stay of the change in residence Orders not in the child’s best interests – Mother’s significant history of non-compliance and failure to encourage the child’s relationship with the Father.

Legislation:

Family Law Act 1975 (Cth), s.45

Federal Circuit Court Rules 2001, r.29.04

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson v Senior (Stay Appeal) (2013) 279 FLR 399; (2014) 50 Fam LR 21
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681
K & B (2006) 202 FLR 416; (2006) FLC ¶93-288
Applicant: MS LOCKLEY
Respondent: MR BARDOT
File Number: SYC 8874 of 2007
Judgment of: Judge Neville
Hearing date: 18 July 2016
Date of Last Submission: 5 August 2016
Delivered at: Canberra
Delivered on: 26 August 2016

REPRESENTATION

Solicitor/Advocate for the Applicant: Ms M Gray
Solicitors for the Applicant: Legal Aid NSW
Counsel for the Respondent: Mr N Jackson
Solicitors for the Respondent: McCabe Partners Lawyers, Caringbah

Counsel for the Independent Children's Lawyer:

Mr C Cook

Solicitors for the Independent Children's Lawyer:

S P Nasti & Co, Drummoyne

ORDERS

  1. The Mother’s Amended Application, filed 5th August 2016, seeking, among other things, a stay of the Orders made on 30th June 2016, be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Lockley & Bardot (Stay Application) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

SYC 8874 of 2007

MS LOCKLEY

Applicant

And

MR BARDOT

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 30th June, after a three day hearing, this Court made Orders that provided for the 8 year old child of the relationship, X, to live with his Father and to spend regular time with his Mother.

  2. By an Amended Application, filed 5th August 2016, the Mother seeks, among other things, a stay of those Orders - which required that there be a change in the child’s primary residence to that of the Father.[1]

    [1] The principal judgment is Lockley & Bardot [2016] FCCA 1982.

  3. For the reasons that follow the Mother’s Application for a stay should be refused.  Among a number of reasons for such an…

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Details
AGLC
Lockley and Bardot (Stay Application) [2016] FCCA 2210
Case
[2016] FCCA 2210
Decision Date

CaseChat Overview and Summary

In the matter of *Lockley and Bardot (Stay Application)*, Judge Neville considered an application by the Mother seeking a stay of orders made on 30 June 2016.

The primary legal issue before the court was whether to grant a stay of the existing orders, which involved an appeal from a discretionary judgment. The court was required to determine the principles applicable to stay applications in both general law and parenting proceedings, considering the discretionary nature of such applications and the merits of the case.

Judge Neville applied established legal principles governing appeals from discretionary judgments and stay applications. The court noted that the onus rests on the applicant to establish a proper basis for a stay, though not necessarily "special" or "exceptional" circumstances. Key considerations included the entitlement of a judgment holder to the benefit of their judgment, the presumption of its correctness, and that the mere filing of an appeal is insufficient. The court also weighed factors such as the applicant's bona fides, the balance of convenience, the risk of the appeal being rendered nugatory, the strength of the proposed appeal, the desirability of stability in a child's living arrangements, the timing of the appeal, and, significantly, the best interests of the child.

The Mother's Amended Application seeking a stay of the orders made on 30 June 2016 was dismissed.

Orders

Orders of the court

1.

The Mother’s Amended Application, filed 5th August 2016, seeking, among other things, a stay of the Orders made on 30th June 2016, be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For current purposes, I note the following (also noted by the Mother in her submissions) from the Full Court’s decision in Aldrige & Keaton (Stay Appeal).[2] At [17] – [18], the Court said (emphasis added):[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) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [36], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B (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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