Madden and Callanan (No.2) - [2016] FCCA 346

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADDEN & CALLANAN (No.2)

[2016] FCCA 346

Catchwords:
FAMILY LAW – Parenting – application for stay of interim Orders pending appeal.

Legislation:

Federal Circuit Court Rules 2001, r.16.05(2)(e)

Friscioni & Friscioni [2009] FamCAFC 43
Madden& Callanan [2016] FCCA 59
Sheldon & Weir(Stay Application) [2011] FamCAFC 5

Applicant:

MS MADDEN

Respondent:

MR CALLANAN

File Number:

WOC 1081 of 2015

Judgment of:

Judge Altobelli

Hearing date:

11 February 2016

Date of Last Submission:

11 February 2016

Delivered at:

Wollongong

Delivered on:

22 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Rossi Simicic Lawyers

Counsel for the Respondent:

Ms Gillies

Solicitors for the Respondent:

TH Walker Solicitors

Solicitors for the Independent Children's Lawyer:

DGB Lawyers

ORDERS

The Application in a Case filed 8 February 2016 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Madden & Callanan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1081 of 2015

MS MADDEN

Applicant

And

MR CALLANAN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain why the Court has declined to stay its Orders made in this case on 22 January 2016.

Background

The case concerns two children, X, born (omitted) 2008 and Y, born (omitted) 2010.
On 22 January 2016, I made interim Orders in relation to the children and then transferred the matter to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 24 March 2016 at 9:30am, with a recommendation that the matter go into the Magellan list. The reasons for judgment were published as Madden & Callanan [2016] FCCA 59.
On 8 February 2016, the Mother filed an Application in a Case seeking that Orders 3 and 4 of the Orders made 22 January 2016 be stayed. She sought an order that, pending the determination of her appeal filed 4 February 2016, the children spend time with the Father at a supervised contact centre or equivalent. Orders 3 and 4 made on 22 January 2016 provide for the children to spend time with their father from 8:00am each Monday until the commencement of school on Wednesday or 9:00am for Y, or until 9:00am on any day when the child, X, is not required to attend school. The Orders also covered special days and incidental matters.
The Mother’s Application in a Case seeking a stay was supported by her Affidavit sworn 8 February 2016 and filed on that date.
By way of a Response to an Application in a Case filed 11 February 2016, the Father sought, in effect, dismissal of the Mother’s application, together with an amendment to the Orders pursuant to the slip rule (r.16.05(2)(e)). This part of the application was uncontentious. The Father’s response was supported by his Affidavit, sworn 10 February 2016 and filed on 11 February 2016.
The stay application came before me on 11 February 2016. Mr Dura…

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 Madden and Callanan (No.2)

Details

AGLC: Madden and Callanan (No.2) [2016] FCCA 346
Case: [2016] FCCA 346
Decision Date: 22 February 2016

CaseChat Overview and Summary

In the matter of *Madden and Callanan (No.2)*, Judge Altobelli of the Federal Circuit Court of Australia considered an application filed on 8 February 2016. The specific nature of the dispute between the parties, Madden and Callanan, is not detailed in the provided text, nor is the context of the application.

The central legal issue before the Court was whether the application filed on 8 February 2016 should be dismissed. The Court was required to determine the merits of this application and decide on its ultimate disposition.

After considering the application, Judge Altobelli ordered that the Application in a Case filed 8 February 2016 be dismissed.

Orders

Orders of the court

The Application in a Case filed 8 February 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

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Ratio Decidendi

Legal Principle Established

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