Maddigan and Geary (No 2) - [2016] FamCA 570

FAMILY COURT OF AUSTRALIA

MADDIGAN & GEARY (NO 2)

[2016] FamCA 570

FAMILY LAW – STAY APPLICATION – Where the mother seeks a stay of final parenting orders – Where those orders provided for the children to move to live with the father and spend substantial and significant time with the mother after a short initial embargo period – Where the mother’s appeal would not be rendered nugatory by dismissal of her stay application – Where the children will soon begin spending time with the mother in accordance with the final orders – Where it would cause considerable disruption to the children to again reverse their residence pending the outcome of the mother’s appeal – Where such a vacillation in the children’s residences would not be in their interests – Mother’s stay application dismissed

Family Law Act 1975 (Cth), 65DAA

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Coal & Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621
Federal Commissioner of Taxation v Myer Emporium (No. 1) (1986) 160 CLR 220
Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No. 1) (1986) 161 CLR 681
JRN & IEG (1998) 72 ALJR 1329
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No 2) [2008] FamCAFC 194

APPLICANT:

Ms Maddigan

RESPONDENT:

Mr Geary

INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess, Legal Aid ACT

FILE NUMBER:

CAC

2054

2010

DATE DELIVERED:

16 June 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

16 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duane

SOLICITOR FOR THE APPLICANT:

Mr Cameron, Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Mr Ridge, Barker & Barker

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess, Legal Aid ACT

Orders

The Application in a Case filed on 1 June 2016 is dismissed.
The father’s application against the mother for his costs of and incidental to today’s hearing is reserved for a period of 28 days after judgment is pronounced in appeal number EA81/2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maddigan & Geary (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 NEWCASTLE

FILE NUMBER: CAC 2054 of 2010

Ms Maddigan

Applicant

And

Mr Geary

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

By Application in a Case filed on 1 June 2016, the applicant mother seeks a stay of the parenting orders made by me on 28 April 2016.
For many years prior to the pronouncement of those final orders, the parties had repeatedly engaged in litigation to settle parenting arrangements for their children. The orders made on 28 April 2016 effected a reversal of the antecedent residential arrangement. The orders provided for the children to move to live with the father instead of with the mother and to spend…

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 570
Decision Date: 16 June 2016

CaseChat Overview and Summary

In *Maddigan and Geary (No 2)*, Austin J of the Supreme Court of New South Wales was required to determine an application by the father against the mother concerning costs. The specific nature of the underlying dispute that led to this costs application is not detailed in the provided text, beyond it being a matter heard in the Supreme Court.

The primary legal issue before the court was whether the father should be awarded his costs of and incidental to the hearing. The court was tasked with considering the circumstances of the case to determine the appropriate costs order.

Austin J dismissed the father's application for costs. The court reserved the question of the father's costs for a period of 28 days following the judgment in a related appeal, EA81/2016, indicating that the final determination of costs might be influenced by the outcome of that appeal.

Orders

Orders of the court

The Application in a Case filed on 1 June 2016 is dismissed.

The father’s application against the mother for his costs of and incidental to today’s hearing is reserved for a period of 28 days after judgment is pronounced in appeal number EA81/2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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