Redmond and Redmond (Stay) - [2014] FamCA 382

FAMILY COURT OF AUSTRALIA

REDMOND & REDMOND (STAY)

[2014] FamCA 382

FAMILY LAW – ORDERS – Stay – Where the Father seeks a stay of interim parenting orders – Where the Father has filed a Notice of Appeal – Where it was conceded that an Appeal would not be rendered nugatory if a stay was not granted – Where a number of the grounds of appeal appear doomed to fail – Where a stay is not granted.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Holinski & Holinski [2013] FamCA 658

APPLICANT:

Mr Redmond

RESPONDENT:

Ms Redmond

INDEPENDENT CHILDREN’S LAWYER:

Patrick Dooley

FILE NUMBER:

BRC

4493

2011

DATE DELIVERED:

11 June 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10 June 2014

REPRESENTATION

FOR THE APPLICANT:

Mr Redmond in Person

FOR THE RESPONDENT:

Ms Redmond in Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley
Dooley Solicitors

Orders

IT IS ORDERED

That the father’s application for a stay of my Order of 15 May 2014 pending the determination of his appeal against that Order is dismissed.

IT IS FURTHER ORDERED BY CONSENT

That paragraph (5) of the parenting Order made 15 May 2014 be varied by substituting the words “the [P] Contact Centre” for the words “the [N] Children’s Contact Centre or the [C] Contact Centre, whichever of those centres, individually or in combination, can accommodate this family in accordance with these Orders” in that paragraph.

AND IT IS FURTHER ORDERED

That the competing applications for final parenting Orders be listed for trial before the Honourable Justice Forrest over three days on 29, 30 and 31October, 2014 commencing at 10.00 am on Wednesday, 29 October 2014.
That on or before Friday, 12 September 2014, the Independent Children’s Lawyer shall file and serve any further affidavits of Ms S and Professor V, and any affidavit by Ms M upon which he intends to rely at the trial of the competing parenting orders application.
That on or before Friday, 26 September 2014, the father shall file and serve on the mother and the Independent Children’s Lawyer, one affidavit by him and one affidavit by his mother and one affidavit by Mr T, upon which he intends to rely at the trial of the competing parenting orders application.
That on or before Friday, 26 September 2014, the father shall either, inform the mother and the Independent Children’s Lawyer of which other affidavits of evidence in chief already filed he intends to rely upon at the trial, or file and serve any further affidavits of evidence of witnesses upon which he intends to rely at the trial of the competing parenting orders application.
That on or before Friday, 3 October 2014, the mother shall file and serve on the father and the Independent Children’s Lawyer, one affidavit by her upon which she intends to rely at the trial of the competing parenting orders application.
That on or before Friday, 10…

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: [2014] FamCA 382
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by Mr Redmond (the father) for a stay of interim parenting orders made on 15 May 2014, pending the determination of his appeal against those orders. Ms Redmond (the mother) and the Independent Children’s Lawyer opposed the application.

The primary legal issue before the Court was whether to grant a stay of the interim parenting orders. This required the Court to consider the principles governing applications for a stay pending appeal, including the onus on the applicant to establish a proper basis for the stay, the risk of the appeal being rendered nugatory if a stay was not granted, and the merits of the grounds of appeal.

Justice Forrest dismissed the father's application for a stay. His Honour found that the father had failed to establish a proper basis for the stay, conceding that the appeal would not be rendered nugatory if a stay was refused. Furthermore, the Court considered that several of the father's grounds of appeal appeared doomed to fail, lacking particularity or arguable merit. The Court also noted concerns regarding the father's bona fides in pursuing the appeal and the need for finality in the proceedings for the child's best interests.

The Court ordered that the father's application for a stay be dismissed. By consent, paragraph (5) of the 15 May 2014 order was varied to specify the "[P] Contact Centre" for supervised child contact. The competing applications for final parenting orders were listed for trial in October 2014.

Orders