Lorreck and Watts - [2013] FCCA 39

FEDERAL CIRCUIT COURT OF AUSTRALIA

LORRECK & WATTS

[2013] FCCA 39

Catchwords:
FAMILY LAW – Stay application.

Legislation:

Family Law Act 1975

Cases cited:
Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Clemett v Clemett (1981) FLC 93-103
Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220
EJK v TLS (No 2) (2006) 35 Fam LR 590
Elspeth v Peter [2007] FamCA 254
Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCATrans 5 (24^th January 2008)
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
K & B (2006) FLC ¶93-288
Mullen v De Bry (2007) 36 Fam LR 501
Nauru Phosphate Royalties Trust v Harris [2007] HCATrans 329 (27^th June 2007)

O v L (2005) 196 FLR 224

Applicant:

MS LORRECK

Respondent:

MR WATTS

File Number:

CAC 23 of 2009

Judgment of:

Judge Neville

Hearing date:

10 April 2013

Date of Last Submission:

10 April 2013

Delivered at:

Canberra

Delivered on:

16 April 2013

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Counsel for the Respondent:

No appearance

ORDERS

The stay application filed on 22 January 2013 be refused.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

CAC 23 of 2009

MS LORRECK

Applicant

And

MR WATTS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an Application to stay Orders that were made by this Court on 10^th December 2012 allowing the two children of the relationship (10 year old [X] and 5 year old [Y]) to travel overseas with their Father for a short holiday. Those Orders are now the subject of an appeal.
For the reasons that follow, I decline to grant the stay sought by the Mother. Formally, it is refused.
The reasons proceed thus: firstly I set out the principles that apply to such applications, then I consider the straight-forward facts in the light of them.

Legal Principle

By way of general comment I have had regard to the following cases from which I have drawn some general principles regarding stay applications. The cases might be distinguished, however, between stay applications in commercial litigation as opposed to those in family law proceedings. That distinction was recognised specifically by Kirby J, sitting alone in the High Court in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329. At p.1332 [16] his Honour said:
In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.
This distinction was recognised and accepted by the Full Court of the Family Court…

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 Lorreck and Watts

Details

AGLC: Lorreck and Watts [2013] FCCA 39
Case: [2013] FCCA 39
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Lorreck (the Applicant Mother) for a stay of orders made by the Federal Circuit Court on 10 December 2012. These orders permitted the two children of the relationship, aged 10 and 5, to travel overseas with their Father, Mr Watts (the Respondent), for a short holiday. The Applicant Mother was self-represented, and the Respondent Father did not appear.

The court was required to determine whether to grant the stay application, which was effectively an application to prevent the children from travelling overseas with their Father pending the outcome of an appeal against the original orders. The legal issues involved the principles applicable to stay applications in family law proceedings, particularly in circumstances involving children, and the assessment of the grounds of appeal and the best interests of the children.

The court applied a series of principles derived from various authorities, including the distinction between stay applications in commercial and family law litigation, with the latter giving paramount consideration to the welfare of the child. Key principles included that an appeal does not automatically grant a stay, that the interests of the child are a critical consideration, that the application must not be a delaying tactic, and that the grounds of appeal must be substantial. The court also considered whether refusing a stay would render the appeal nugatory and the potential hardship to the parties. In this specific case, the court found the Mother's concerns about the younger child's separation anxiety to be unsubstantiated and considered it highly unlikely that the Father would be a "flight risk." The court concluded that the Mother's prospects of success on appeal were slim and that it was in the children's best interests to spend holiday time with their Father.

Consequently, the court formally refused the stay application.

Orders