Partridge and Kennedy (No. 2)

[2010] FamCA 1185

FAMILY COURT OF AUSTRALIA

PARTRIDGE & KENNEDY (NO. 2) [2010] FamCA 1185

FAMILY LAW – ORDERS – STAY - application for a stay of interim parenting orders – discretion to grant or refuse a stay depends on the circumstances of the case – where refusal to grant a stay may render appeal nugatory – where a stay may negatively impact the child’s relationship with the father – other factors considered and weighed – application for a stay dismissed

Friscioni & Friscioni [2009] FamCAFC 43

Legal Aid Commission Act 1979 (NSW) s 57

APPLICANT: Ms Kennedy

RESPONDENT: Mr Partridge

FILE NUMBER: (P)SYC 4821 of 2010

DATE DELIVERED: 21 December 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Ryan J

HEARING DATE: 13 December 2010

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT:

Macpherson & Kelley

(Ms Musgrave)

Orders

1. That the mother’s application for a stay of orders made 8 November 2010 is dismissed.

2. Within 28 days the father shall file and serve written submissions in support of his costs application.

3. Within 28 days thereafter the mother shall file and serve written submissions in reply.

4. The father shall make any response to the mother’s submissions within a further 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Partridge and Kennedy(No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: (P)SYC4821 of 2010

Ms Kennedy

Applicant

And

Mr Partridge

Respondent

REASONS FOR JUDGMENT

1. On 8 November 2009 I heard and determined interim parenting applications between the parties.  In short, the orders made provision for the parties’ daughter M, born in March 2005, to begin overnight time with the father commencing 10 January 2011.  There are in place final orders made on 12 April 2006, which, amongst other matters provided the child would be begin overnight time with the father in May 2009.  That has not happened.  My orders also altered the collection point from where the mother would receive the child from the father and, in the period prior to 10 January 2011 to an extent increased the frequency of the child’s weekend time with the father.

2. On 22 November 2010 the mother filed a Notice of Appeal.  The order she seeks is: 

   That the orders made 8 November 2010 be made void and replaced by the interim orders of 25 October 2010 then that the matter be heard again by a different Magistrate allowing cross examination of witnesses and introduction of other evidence. 

3. On 6 December 2010 the mother filed an Application in a Case seeking a stay.  The orders sought by her in her stay application are: 

   1.That Orders made on 8 November 2010 by Justice Ryan are stayed pending the outcome of Appeal filed 12 November 2010.

   2.That Orders made on 8 November 2010 by Justice Ryan are replaced with Orders made 25 October 2010 by Justice Boland.

   3.I would like to get back the Order made 25 October 2010 by…