PETERS & ORTONA (STAY APPLICATION) - [2015] FamCA 390

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA (STAY APPLICATION)

[2015] FamCA 390

FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Where the mother applied for a stay of orders pending the determination of her appeal from final parenting and property orders – where the mother did not establish a proper basis for a stay – where it was desirable to limit the frequency of change in the children’s arrangements- where there was no risk of the appeal regarding the property orders being rendered nugatory if a stay was not granted – stay application dismissed – the mother’s application for interim variation of the final parenting orders pending appeal dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Clemett and Clemett (1981) FLC 91-013
Friscioni & Friscioni [2009] FamCAFC 43
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

APPLICANT:

Ms Peters

RESPONDENT:

Mr Ortona

FILE NUMBER:

MLC

8590

2012

DATE DELIVERED:

26 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

28 April 2015

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

IT IS ORDERED THAT

The applicant’s application to stay the final orders made 26 February 2015 is refused.
Paragraphs 1 to 11 inclusive and paragraph 13 of the applicant’s Application in a Case filed 9 April 2015 be dismissed.
Paragraph 12 of the applicant’s Application in a Case filed 9 April 2015 is withdrawn.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ortona (Stay application) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8590 of 2012

Ms Peters

Applicant

And

Mr Ortona

Respondent

REASONS FOR JUDGMENT

The applicant mother applies, by way of Application in a Case, for a stay of final parenting and property orders. The final orders were made by me on 26 February 2015 following a 10 day trial. The mother has filed a Notice of Appeal which enlivens the machinery in r 22.11(2) Family Law Rules 2004 (Cth).
The children the subject of the parenting orders are B aged 11 and C aged 10.
The application to stay the final orders is opposed by the respondent father who was the applicant in the trial.
The background of the matter is traversed in the reasons for judgment delivered on 26 February 2015 and need not be repeated.
The final parenting orders provide for the father to have sole parental responsibility for the children and for the children to live with him and spend time with the mother on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday, half of school holidays, and for special days. Prior to final orders, the children lived with the parents on a ‘week about arrangement’. The mother’s case in the trial was that…

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 PETERS & ORTONA (STAY APPLICATION)

Details

AGLC: PETERS & ORTONA (STAY APPLICATION) [2015] FamCA 390
Case: [2015] FamCA 390
Decision Date: 26 May 2015

CaseChat Overview and Summary

In the matter of PETERS & ORTONA (STAY APPLICATION), the mother sought a stay of final parenting and property orders made on 26 February 2015, pending the determination of her appeal. The application was heard by Thornton J in the Family Court of Australia.

The primary legal issues before the court were whether the mother had established a proper basis for a stay of the final orders, and whether an interim variation of the final parenting orders was warranted pending the appeal. The court was required to consider the principles governing applications for stays of judgments and interim variations in the context of family law proceedings, particularly concerning the welfare of children and the finality of property settlements.

Thornton J reasoned that the mother had not established a proper basis for a stay of the final orders. The court noted the desirability of limiting the frequency of changes to the children's living arrangements, a principle that weighed against granting a stay. Furthermore, the court found no risk that the appeal concerning the property orders would be rendered nugatory if a stay was not granted. Consequently, the application for a stay of the final orders was refused, and the mother's application for an interim variation of the final parenting orders pending appeal was also dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

The applicant’s application to stay the final orders made 26 February 2015 is refused.

Paragraphs 1 to 11 inclusive and paragraph 13 of the applicant’s Application in a Case filed 9 April 2015 be dismissed.

Paragraph 12 of the applicant’s Application in a Case filed 9 April 2015 is withdrawn.

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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