Pedrana and Cox (No. 2) - [2012] FamCA 756

FAMILY COURT OF AUSTRALIA

PEDRANA & COX (NO. 2)

[2012] FamCA 756

MOTHER’S APPLICATION IN A CASE (STAY APPLICATION)
FILED 31 AUGUST 2012

FAMILY LAW – CHILDREN – Where final parenting orders made that the child live with the Father – Application for a stay – Application dismissed
APPLICANT:	Mr P Pedrana

RESPONDENT:

Ms Cox

INDEPENDENT CHILDREN’S LAWYER:

Leisa Toomey, Solicitor

FILE NUMBER:

BRC

7647

2007

DATE DELIVERED:

5 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

3 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carmody

SOLICITOR FOR THE APPLICANT:

Everingham Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

DA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Farr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Schultz Toomey O’Brien Lawyers

Orders

IT IS ORDERED THAT:

The Mother’s Application in a Case filed 31 August 2012 for a stay of the Orders of this Honourable Court made 30 August 2012, pending determination of an appeal, be dismissed.

IT IS FURTHER ORDERED THAT:

The execution of Order (1) of the Order of this Honourable Court made

3 September 2012, be extended until 12 noon on 6 September 2012, to enable the Independent Children’s Lawyer to explain to the child, C PEDRANA-COX born … May 2005, the Orders of this Honourable Court made on 30 August 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrana & Cox (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC7647/2007

Mr P Pedrana

Applicant

And

Ms Cox

Respondent

REASONS FOR JUDGMENT

The Mother’s application is an application for stay of the Orders made by the Honourable Justice Bell on 30 August 2012.
C Pedrana-Cox (“the child”) born in May 2005 has lived with the Mother since separation in 2006. The Father has for the most part, spent only supervised time with the child since this time due to numerous concerns the Mother has had about the safety of the child in the Father’s care (see the reasons for judgment of the Honourable Justice Bell dated 30 August 2012 for the history of the matter).
The parties were involved in contested proceedings before Justice Bell on 25 July 2011 to 28 July 2011, 28 November 2011 to 30 November 2011 and 4 June 2012 to 7 June 2012.
The Orders made on 30 August 2012 provide that the child live with the Father. The Orders further provide that the Mother is to not have face to face contact with the child for a period of two months, and thereafter the Mother is to spend supervised time with the child each alternate Saturday and Sunday from

10.00 am until 4.00 pm each day for three months, followed by unsupervised time with the child each alternate weekend between the hours of 9.00 am Saturday until 5.00 pm on Sunday.
On 30 August 2012, the Mother…

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.

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Details

Case: [2012] FamCA 756
Decision Date: 5 September 2012

CaseChat Overview and Summary

In *Pedrana and Cox (No. 2)*, Bell J of the Family Court of Australia considered an application by the Mother for a stay of orders made on 30 August 2012, pending the determination of an appeal. The Mother also sought an extension of time for the execution of a separate order made on 3 September 2012.

The primary legal issue before the Court was whether the Mother had established sufficient grounds to warrant a stay of the earlier orders. A secondary issue concerned the appropriate timeframe for the execution of the 3 September 2012 order, particularly in light of the need for the Independent Children’s Lawyer to explain the 30 August 2012 orders to the child, C.

Bell J dismissed the Mother's application for a stay of the 30 August 2012 orders. The Court also ordered that the execution of the 3 September 2012 order be extended until 12 noon on 6 September 2012. This extension was specifically granted to allow the Independent Children’s Lawyer to explain the 30 August 2012 orders to the child, C.

Orders

Orders of the court

IT IS ORDERED THAT:

The Mother’s Application in a Case filed 31 August 2012 for a stay of the Orders of this Honourable Court made 30 August 2012, pending determination of an appeal, be dismissed.

IT IS FURTHER ORDERED THAT:

The execution of Order (1) of the Order of this Honourable Court made

3 September 2012, be extended until 12 noon on 6 September 2012, to enable the Independent Children’s Lawyer to explain to the child, C PEDRANA-COX born … May 2005, the Orders of this Honourable Court made on 30 August 2012.

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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