Pavlis & Pavlis (No 2) - [2021] FedCFamC2F 617

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pavlis & Pavlis (No 2) [2021] FedCFamC2F 617

File number(s): PAC 287 of 2021

Judgment of: JUDGE STREET

Date of judgment: 17 December 2021

Catchwords: FAMILY LAW – INTERIM PARENTING – Application to stay interim orders – whether the stay should be granted – whether the refusal to grant stay will make the appeal nugatory – best interests of the children – application for stay dismissed.

Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth), s.38
Federal Circuit and Family Court of Australia Rules 2021 (Cth), rr.10.13, 13.10

Cases cited: Samaras & Allen [2021] FedCFamC1F 20
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
House v The King (1936) 55 CLR 499
EJK & TSL (2006) FamCA 730

Division: Division 2 General Federal Law

Number of paragraphs: 49

Date of hearing: 17 December 2021

Place: Parramatta

Counsel for the Applicant: Mr Guterres

Solicitors for the Applicant: First Choice Family Lawyers

Counsel for the Respondent: Ms R Dart

Solicitors for the Respondent: Monardo Legal
ORDERS

SYG 287 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PAVLIS
Applicant

AND:
MR PAVLIS
Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

17 DECEMBER 2021

THE COURT ORDERS THAT:
1.The mother’s Application in a Case for a stay filed on 13 December 2021 be dismissed.
2.The application for costs by the respondent father in respect of the application in a case filed13 December 2021 is reserved until the final determination of the proceedings.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pavlis & Pavlis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction

This is an application in a proceeding filed on 13 December 20121 by the applicant mother for a stay of Order 14 as to the place of changeover and Order 22 as to overnight time of the Orders made by this Court on 3 December 2021 (“the December Orders”). The respondent father opposes the application.
Principles
The statutory power for the granting of the stay is found in s 38 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“The FCFCOA Act”), as well as the power found in r 13.12…

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 Pavlis & Pavlis (No 2)

Details

AGLC: Pavlis & Pavlis (No 2) [2021] FedCFamC2F 617
Case: [2021] FedCFamC2F 617
Decision Date

CaseChat Overview and Summary

This case involved an application by the applicant mother for a stay of interim parenting orders made on 3 December 2021. The application was dismissed by Judge Street. The legal issues before the court were whether the stay should be granted and whether the refusal to grant the stay would make the appeal nugatory. The court considered the principles governing a stay of parenting orders and the factors relevant to granting a stay. The court found that the applicant mother had not established a proper basis for the stay and that the best interests of the children weighed in favour of refusing the stay. The court also found that the applicant mother's conduct had exacerbated the circumstances and impacted adversely on the children. The court dismissed the application for a stay.

Orders