Nineth and Nineth - [2011] FamCA 128

FAMILY COURT OF AUSTRALIA

Nineth & Nineth

[2011] FamCA 128

FAMILY LAW – CHILDREN – Stay of orders pending appeal

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Clemmett & Clemmett (1981) FLC 91-013
Donnell v Dovey (2010) 42 FamLR 559
Hort & Verran [2009] FamCAFC 214
In re CP (1997) FLC 92-741
JRN and IEG (1998) 72 ALJR 1329
K & B (2006) 37 Fam LR 1

APPLICANT:

Ms G.Nineth

RESPONDENT:

Ms F. Nineth

INTERVENOR:

Ms Moldow

INDEPENDENT CHILDREN’S LAWYER:

Burridge Harris & Flynn Solicitors

FILE NUMBER:

LEC

421

2008

DATE DELIVERED:

20 January 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

20 January 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Donaghy of G.J. Donaghy & Co.

THE RESPONDENT:

In person

THE INTERVENOR:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Steiner of Burridge Harris & Flynn Solicitors

Orders

IT IS ORDERED THAT

The Application for Stay filed on 17 January 2011 be dismissed.
Ms G. Nineth shall effect the transfer of the child J born … August 2005 into the care of the grandmother Ms Moldow by not later than 4.00pm on Friday 21 January 2011.

IT IS FURTHER ORDERED THAT

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 421 of 2008

Ms G. Nineth

Applicant Maternal Great-Aunt

and

Ms F. Nineth

Respondent Mother

and

Ms Moldow

Intervener Maternal Grandmother

EX TEMPORE

REASONS FOR JUDGMENT

On 17 December 2010, I made orders and delivered reasons in relation to a parenting dispute, the trial of which had occurred on 25 and 26 October 2010. The orders and reasons were delivered late in the afternoon about a week before Christmas (noting that New South Wales, where the parties and the respective legal practitioners reside and practise, was an hour ahead).
Those orders contemplated that the great maternal aunt who had erstwhile had the full-time care of J, transfer him into the care of the grandmother, Ms Moldow, by not later than 4pm on 20 December 2010. The proximity of that changeover date to Christmas will also be noted.
Notification was received, although not in the proper form, from solicitors acting for the great maternal aunt (who I shall call in these reasons “the aunt”), of an intention to appeal the orders made by me and to seek a stay of those orders pending that appeal.
On 20 December 2010 and on 23 December 2010, despite the significant deficiencies in form, I…

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 Nineth and Nineth

Details

AGLC: Nineth and Nineth [2011] FamCA 128
Case: [2011] FamCA 128
Decision Date: 20 January 2011

CaseChat Overview and Summary

The matter of *Nineth and Nineth* concerned an application for a stay of orders made by Murphy J in the Family Court of Australia. The dispute involved the care of a child, J, born in August 2005, and the transfer of the child into the care of the grandmother, Ms Moldow.

The primary legal issue before the court was whether to grant an application for a stay of existing orders. This application was made on 17 January 2011. The court was also required to consider the terms of the substantive orders concerning the child's care.

Murphy J dismissed the application for a stay. The court then ordered that Ms G. Nineth was to transfer the child J into the care of the grandmother, Ms Moldow, by 4.00 pm on Friday, 21 January 2011. Furthermore, pursuant to sections 65DA(2) and 62B of the relevant legislation, the court ordered that particulars of the obligations created by these orders, the consequences of contravention, and information regarding assistance for compliance were to be set out in an attached Fact Sheet, which was to be considered part of the orders.

Orders

Orders of the court

IT IS ORDERED THAT

The Application for Stay filed on 17 January 2011 be dismissed.

Ms G. Nineth shall effect the transfer of the child J born … August 2005 into the care of the grandmother Ms Moldow by not later than 4.00pm on Friday 21 January 2011.

IT IS FURTHER ORDERED THAT

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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