Noelle and Fournier - [2007] FamCA 1048

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER (NO. 2)

[2007] FamCA 1048

FAMILY LAW – CHILDREN – Stay Application – mother unsuccessfully applied to adjourn final hearing of parenting case and then declined to participate in the balance of proceedings at first instance – determination at first instance made in favour of the father with the effect of reversing a very established status quo in relation to daughters aged 8 and 11 years – mother appeals and seeks stay pending appeal – relevant considerations discussed and applied – distinction drawn between “satisfactory” arrangements pending appeal and children’s best interests – stay refused.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Sampson & Hartnett (No 3) [2007] FamCA 373
Sampson & Hartnett [2007] FamCA 732
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422
Clemett and Clemett (1981) FLC 91-013
House v the King (1936) 55 CLR 499 at 504-505

APPLICANT:

Ms Noelle

RESPONDENT:

Mr Fournier

INDEPENDENT CHILDREN’S LAWYER:

McBain Lawyers

FILE NUMBER:

MLF

6279

2003

DATE DELIVERED:

10 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hoult

SOLICITOR FOR THE APPLICANT:

Donald S Lampe

COUNSEL FOR THE RESPONDENT:

Mr Schetzer

SOLICITOR FOR THE RESPONDENT:

Pearsons Schetzer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McBain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hale & Wakeling

Orders

I dispense with the operation of the Family Law Rules 2004 to such extent as is necessary to enable the mother to rely on her application filed 24 August 2007 (in which she seeks a stay pending appeal of the operation of orders made be me on 23 August 2007) notwithstanding that such application was filed prior to any Notice of Appeal having been filed.
That the mother’s application filed on 24 August 2007 be dismissed.
I dispense with any requirement under the Family Law Rules 2004 for applications or responses to be filed or served in relation to costs and I direct that any dispute over costs be dealt with by written submissions.
That any party wishing to seek costs of or incidental to the mother’s application file and serve submissions in writing to that effect by not later than

28 September 2007 including, but not limited to, an itemised memorandum of the costs sought calculated in accordance with the scale set out in the Family Law Rules 2004.
In the event that any party seeks costs against another party, the party against whom costs are sought file and serve any written submissions in opposition thereto by not later than 15 October 2007.
I direct that my Associate review the file on 22 October 2007 to ascertain whether there is any dispute in relation to costs and, if so, to draw same to my attention.
That the Court certifies that it was reasonable to employ an advocate.

IT IS NOTED IN CONNECTION WITH THESE…

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.

Keep reading for free

Create a free CaseChat account to read Noelle and Fournier and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FamCA 1048
Decision Date: 10 September 2007

CaseChat Overview and Summary

In the matter of *Noelle and Fournier*, heard by Bennett J, the dispute concerned an application by the mother seeking a stay pending appeal of orders made by the court on 23 August 2007. The mother's application for the stay was filed on 24 August 2007, prior to the formal filing of a Notice of Appeal.

The primary legal issue before the court was whether it had the power to dispense with the operation of the *Family Law Rules 2004* to allow the mother to rely on her stay application, notwithstanding that it was filed before the Notice of Appeal. The court was also required to determine the mother's application for the stay and to consider the question of costs.

Bennett J determined that it was appropriate to dispense with the operation of the *Family Law Rules 2004* to permit the mother's application to be considered. However, the court ultimately dismissed the mother's application for a stay pending appeal. The court then made directions regarding the process for dealing with any costs disputes, requiring written submissions from the parties and certifying that it was reasonable to employ an advocate.

Orders

Orders of the court

I dispense with the operation of the Family Law Rules 2004 to such extent as is necessary to enable the mother to rely on her application filed 24 August 2007 (in which she seeks a stay pending appeal of the operation of orders made be me on 23 August 2007) notwithstanding that such application was filed prior to any Notice of Appeal having been filed.

That the mother’s application filed on 24 August 2007 be dismissed.

I dispense with any requirement under the Family Law Rules 2004 for applications or responses to be filed or served in relation to costs and I direct that any dispute over costs be dealt with by written submissions.

That any party wishing to seek costs of or incidental to the mother’s application file and serve submissions in writing to that effect by not later than

28 September 2007 including, but not limited to, an itemised memorandum of the costs sought calculated in accordance with the scale set out in the Family Law Rules 2004.

In the event that any party seeks costs against another party, the party against whom costs are sought file and serve any written submissions in opposition thereto by not later than 15 October 2007.

I direct that my Associate review the file on 22 October 2007 to ascertain whether there is any dispute in relation to costs and, if so, to draw same to my attention.

That the Court certifies that it was reasonable to employ an advocate.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.