REDMOND & STOLZ (STAY APPEAL) - [2015] FamCAFC 116

FAMILY COURT OF AUSTRALIA

REDMOND & STOLZ (STAY APPEAL)

[2015] FamCAFC 116

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father seeks an adjournment of the hearing – Basis for application his mental health and desire to obtain legal advice – Where the Full Court was specially convened for the urgent hearing of the matter – Where the application is made in an attempt to frustrate the Court’s process – Application refused.

FAMILY LAW – APPEAL – CHILDREN – Appeal from refusal of a stay – Where previous orders were made that permit the child to travel with the mother outside Australia and restrain the father from acting to cause the Australian Federal Police to place the child’s name on the family law watch list, pursuant to s 68B(2) of the Family Law Act 1975 (Cth) – Where the father appealed this decision and that appeal has been heard and dismissed by the Full Court of the Family Court of Australia – Where the father applied for a stay of the order restraining him from contacting the Australian Federal Police – Where that stay application was refused by the primary judge pending determination of the substantive appeal – Where the father appeals the decision to refuse the application for a stay of that order – Where the mother and the Independent Children’s Lawyer oppose the appeal – Where the father conceded the appeal was intended to frustrate previous orders – Where the primary judge properly considered the principles governing a stay application pending appeal per Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 – Where there is no merit in the appeal and it is vexatious – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father made an oral application for a stay pending a special leave application to the High Court of Australia – Where there is little merit in the father’s special leave application – Where there is no question of law or public importance per Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 – Application refused.

FAMILY LAW – APPEAL – COSTS – The vexatious and unmeritorious nature of the appeal warrants an order that the father pay the mother’s costs on an indemnity basis.

Family Law Act 1975 (Cth) – ss 65X, 65Z, 121
Judiciary Act 1903 (Cth) – s 35A

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 68
Kohan and Kohan (1993) FLC 92-340

APPELLANT:

Mr Redmond

RESPONDENT:

Ms Stolz

INDEPENDENT CHILDREN’S LAWYER:

Patrick Dooley

FILE NUMBER:

BRC

4493

2011

APPEAL NUMBER:

2015

DATE DELIVERED:

19 June 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ryan and Kent JJ

HEARING DATE:

18 June 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 May 2015

LOWER COURT MNC:

[2015] FamCA 401

REPRESENTATION

FOR…

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: [2015] FamCAFC 116
Decision Date: 19 June 2015

CaseChat Overview and Summary

The matter in Redmond & Stolz (Stay Appeal) involved the father, the appellant, who sought various adjournments and stays in relation to a family law case. The mother and the Independent Children’s Lawyer opposed the father's applications. The Full Court of the Family Court of Australia convened specially to hear the urgent matter. The primary issues before the court were whether to grant the father's application for an adjournment due to his mental health and desire for legal advice, and whether to stay certain orders that permitted the child to travel with the mother and restrained the father from involving the Australian Federal Police.

The court found that the father's applications were attempts to frustrate the court's process. The Full Court examined the principles governing a stay application pending appeal, as outlined in Aldridge v Keaton (Stay Appeal). The court concluded that the father's appeal was both vexatious and without merit, and therefore dismissed the appeal. Additionally, the court dismissed the father's oral application for a stay pending a special leave application to the High Court of Australia, finding little merit in the special leave application. The court further ruled that the vexatious and unmeritorious nature of the appeal warranted an order for the father to pay the mother's costs on an indemnity basis.

In conclusion, the court dismissed the father's application for a stay and his appeal. The orders included dismissing the father's application for a stay pending special leave to appeal to the High Court, dismissing the appeal, and ordering the father to pay the mother's costs on an indemnity basis. The mother and the Independent Children’s Lawyer were permitted to publish the orders and reasons for judgment to ensure compliance with the travel arrangements for the child.

Orders

Orders of the court

The appellant father have leave to file an application in an appeal and an affidavit in support of that application.

The respondent mother have leave to file an affidavit in response to the application in an appeal.

The application in an appeal be dismissed.

The appeal filed 15 June 2015 be dismissed.

The appellant father’s oral application that this Court grant a stay of Order 9 made by Forrest J on 19 May 2015 pending the determination of the appellant father’s application for special leave to appeal to the High Court of Australia filed on 17 June 2015 be dismissed.

The appellant father pay the respondent mother’s costs of and incidental to this appeal to be agreed or assessed on an indemnity basis.

The respondent mother and the Independent Children’s Lawyer be permitted to publish these orders and the reasons for judgment to the Australian Federal Police, the relevant airline carrier, the relevant airport authority and any person necessary, so as to ensure the travel of the respondent mother and the child, E born … 2005, in terms of the order made by Forrest J on 19 May 2015 allowing departure from Australia on 21 June 2015.

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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