MALONEY & MALONEY - [2011] FMCAfam 197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALONEY & MALONEY

[2011] FMCAfam 197

FAMILY LAW – Application for stay – to be filed in Registry where orders under appeal made – compliance with rule dispensed with – principles for considering a stay application – best interests of child not paramount but important – stay refused.

Federal Magistrates Court Rules 2001, rr.1.05, 1.06
Family Law Rules 2004, r.22.11
Family Law Act 1975, s.60CC

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Clemett and Clemett (1981) FLC 91-013
House v The King [1936] HCA 40
K and B (2006) FLC 93-288

Applicant:

MS MALONEY

Respondent:

MR MALONEY

File Number:

LNC 314 of 2009

Judgment of:

F. Turner FM

Hearing date:

8 March 2011

Date of Last Submission:

8 March 2011

Delivered at:

Melbourne

Delivered on:

15 March 2011

REPRESENTATION

Solicitors for the Applicant:

Coulter Roache

Counsel for the Respondent:

Mr Crawford

Solicitors for the Respondent:

Bruce H Crawford

ORDERS

That Rule 22.11(3) of the Family Law Rules 2004 be dispensed with in so far as it requires an application for a stay to be filed in the same Registry in which the order under appeal was made.
The Application in a Case filed 24 February 2011 seeking a stay is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

LNC 314 of 2009

MS MALONEY

Applicant

And

MR MALONEY

Respondent

REASONS FOR JUDGMENT

This hearing involves an application by the wife for a stay of the final parenting orders made by Federal Magistrate Roberts at Launceston on 28 February 2011.
Mr Hogan appeared for the applicant wife and Mr Crawford for the respondent husband.
The parties were married [in] 2001 and separated on a final basis on

1 May 2004. There is one child of the relationship (to be referred to herein as “B”) who was born [in] 2002.
The parties were living in Tasmania when B was born. After separation the wife established a home in Melbourne, and moved regularly between Victoria and Tasmania. B spent regular time with both parents travelling frequently between Tasmania and Victoria, in line with a parenting plan entered into on 19 May 2009.
On 10 March 2010 the husband sought orders in similar terms to the provisions in the parenting plan; the wife’s response sought that B live with her and spend time with the husband.
Therefore from the date of her birth until separation in 2004 B lived with both parents; from 2004 until the interim orders on 30 April 2010 B spent three weeks about with each parent; from the interim orders until January 2011 B lived with the wife and spent time with the husband for all of some school holidays and half of the other holidays and for one weekend a month; Since final orders on 28 January 2011

B has lived with the husband and…

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 MALONEY & MALONEY

Details

AGLC: MALONEY & MALONEY [2011] FMCAfam 197
Case: [2011] FMCAfam 197
Decision Date: 15 March 2011

CaseChat Overview and Summary

The matter between the Maloney parties came before the Family Court of Australia, presenting a dispute regarding the enforcement of a financial settlement agreement. The husband, in this case, sought a stay of the enforcement of a settlement order, which had been reached and approved by the Court. The wife opposed the application for a stay and argued that the application should be dismissed due to procedural irregularities.

The court had to determine whether it had jurisdiction to entertain the application for a stay, despite the fact that the application was not filed in the same registry as the original order. Additionally, the court needed to decide if the application should proceed under the prevailing procedural rules, specifically focusing on the requirement that an application for a stay must be filed in the same registry as the original order. Furthermore, the court had to consider the merits of the application, including the husband’s grounds for seeking a stay, and whether there were any valid reasons to halt the enforcement of the settlement.

In determining these issues, the court held that it had the jurisdiction to consider the application despite it not being filed in the same registry as the original order. The court reasoned that the requirement in Rule 22.11(3) of the Family Law Rules 2004 was not an insurmountable jurisdictional bar. The court exercised its discretion under the rules to allow the application to proceed, despite the procedural irregularity. The court found that the husband's application for a stay did not present any compelling grounds that warranted halting the enforcement of the settlement agreement. The court dismissed the application for a stay, and no appeal was allowed.

Orders

Orders of the court

That Rule 22.11(3) of the Family Law Rules 2004 be dispensed with in so far as it requires an application for a stay to be filed in the same Registry in which the order under appeal was made.

The Application in a Case filed 24 February 2011 seeking a stay is 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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