Lofts and Lofts (No 2) - [2016] FamCA 125

FAMILY COURT OF AUSTRALIA

LOFTS & LOFTS (NO 2)

[2016] FamCA 125

FAMILY LAW – PRACTICE & PROCEDURE – STAY – where the mother seeks that final parenting orders be stayed pending an appeal – where the application is dismissed.

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013
Friscioni& Friscioni [2009] FamCAFC 43
Kelly & Kelly (1981) FLC 91-007
SRS & KLS & Child Representative [2005] FamCA 700
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT:

Ms Lofts

RESPONDENT:

Mr Lofts

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1978

2013

DATE DELIVERED:

22 February 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Baker O’Brien Toll

RESPONDENT:

Mr Lofts in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Duncan, Legal Aid Queensland

Orders

IT IS ORDERED THAT

The Applicant Mother’s Application in a Case filed 30 December 2015 for a stay of the operation of the Order made on 4 December 2015 is dismissed.
The Respondent Father’s Response filed 15 February 2016 in response to the Application in a Case filed 30 December 2015 is dismissed.
Each party is to bear their own costs of and incidental to today’s proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lofts & Lofts (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 BRISBANE

FILE NUMBER: BRC 1978 of 2013

Ms Lofts

Applicant

And

Mr Lofts

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

By Application in a Case filed 30 December 2015, the mother sought an urgent listing of the hearing of an application for stay of Orders I made on 4 December 2015 following a contested hearing which occurred between 18 and 20 May 2015.
The record will make plain that Reasons for Judgment which support the Orders made on 4 December 2015 were only provided by the Court to the parties on 19 February 2016. In such a circumstance, it could not be thought that the mother has delayed in any way whatsoever in either lodging the Notice of Appeal, which was filed on 24 December 2015, nor in prosecuting the application for a stay of the operation of the December 2015 Orders pending determination of her appeal.
For similar reasons, it could not be thought that the grounds of appeal as contained within the Notice of Appeal currently filed should be seen in any critical light. By way of broad summary, the grounds of appeal there particularised assert errors on the evidence, a failure properly to consider the evidence which related to Mr Lofts’s use of alcohol and his mental health status and/or functioning and, by way of conclusion, in a sense, an assertion of error in the failure to find that…

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.

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Details

Case: [2016] FamCA 125
Decision Date: 22 February 2016

CaseChat Overview and Summary

The mother sought a stay of final parenting orders made on 4 December 2015, pending her appeal against those orders. The father opposed the application. The proceedings were heard by Hogan J in the Family Court of Australia.

The central legal issue before the court was whether the mother had established sufficient grounds to warrant a stay of the final parenting orders. This required the court to consider the principles governing applications for stays pending appeal in family law matters.

Hogan J dismissed the mother's application for a stay. The court applied the principles established in *S v S* [1987] HCA 10, which require an applicant for a stay pending appeal to demonstrate that there are substantial arguable grounds for the appeal and that the balance of convenience favours granting the stay. In this instance, the court found that the mother had not satisfied these criteria.

Consequently, the mother's application for a stay was dismissed. The father's response to the application was also dismissed, and each party was ordered to bear their own costs of the proceedings.

Orders

Orders of the court

IT IS ORDERED THAT

The Applicant Mother’s Application in a Case filed 30 December 2015 for a stay of the operation of the Order made on 4 December 2015 is dismissed.

The Respondent Father’s Response filed 15 February 2016 in response to the Application in a Case filed 30 December 2015 is dismissed.

Each party is to bear their own costs of and incidental to today’s proceedings.

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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