Mitty and Mitty (Stay)

[2010] FamCA 1000

FAMILY COURT OF AUSTRALIA

MITTY & MITTY (STAY) [2010] FamCA 1000

FAMILY LAW – CHILDREN – Stay application

Family Law Act 1975 (Cth)

Clement & Clement (1981) FLC 91-013
EJK & TSL (No. 4) [2006] FamCA 1022

APPLICANT: Mr Mitty

RESPONDENT: Ms Mitty

FILE NUMBER: SYC 8326 of 2007

DATE DELIVERED: 28 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 28 October 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Campton

Orders

1. The father’s application for stay filed 27 August 2010 is refused.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8326 of 2007

MR MITTY

Applicant

and

MS MITTY

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Mitty, the father of three children:  H, L and A.  The father has applied by Application in a Case filed on 27 August 2010, for a stay of final orders I made on 30 July 2010.  The order sought is stated as follows:

   I am seeking a stay of the orders of Le Poer Trench J, dated 30 July 2010.

2. The orders of 30 July 2010 principally provided for the children to live with their mother and permitted the mother to relocate the children’s residence to Queensland.  There were provisions then made for the father to spend time with the children in a supervised capacity.  It is common ground that the mother has moved to Queensland and did so shortly after the orders were made.  It is clear from the father’s argument that he would seek that the mother be required to return to live in Sydney pending the hearing of the father’s appeal.  The father has lodged an appeal against the orders of 30 July 2010.  The grounds of appeal have been included in an affidavit filed by the father to support his application for the stay of the orders.

3. It was a fact accepted in the trial by me that the mother’s accommodation in Sydney was rented accommodation where the termination of the tenancy was imminent.  If the mother and children were to return to Sydney then new accommodation would need to be sourced.  It is probable that whatever commitment the mother now has in relation to any lease arrangement in Queensland would need to be breached and/or concluded if she moved back to Sydney. The evidence in the trial was to the effect that the mother and children were principally being supported by the mother’s parents.  Neither party had any savings or income from employment.

4. The mother’s Counsel in written submissions set out reference to decided cases dealing with the manner in which the Court should hear and determine a stay application.  Inter alia he referred to the decision of Clement & Clement (1981) FLC 91-013. The principles which arise from that case have been…