Rodgers and Howe (No. 2)

[2007] FamCA 557

FAMILY COURT OF AUSTRALIA

RODGERS & HOWE (NO. 2) [2007] FamCA 557

FAMILY LAW – Stay of orders pending appeal – Application granted

Family Law Act 1975

APPLICANT: Mr Rodgers

RESPONDENT: Ms Howe

FILE NUMBER: CAF 456 of 1996

DATE DELIVERED: 24 April 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 24 April 2007

REPRESENTATION

The husband appeared on his own behalf

No appearance for or on behalf of the wife

Orders

1. That there be a stay of Order 4 until the delivery of judgment in the proceedings before the Full Court on appeal from those orders.  I note that Order so called 5 is in fact a notation and is not therefore an order that requires to be stayed. 

2. The interim matter is removed from the pending cases list.

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Rodgers v Howe.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 456 of 1996

MR RODGERS

Applicant

And

MS HOWE

Respondent

REASONS FOR JUDGMENT

1. In this matter the application before me by the husband filed 12 April 2007 seeks that I stay the operation of two of the orders I made on 15 February 2007 after a contested hearing between the parents of the two children, a son and a daughter.  The orders sought to be stayed are Orders 4 and 5. They read as follows:

   4)Notwithstanding the children are with their father on a Sunday, their father will take them to morning church service on that day unless both parents otherwise agree;

   5)It is noted in respect to the children's attendance at church that it is not expected the children will necessarily attend church during the school holidays when they are with their father, and it is also expected that the mother will be flexible in her cooperation about the children not attending church on some occasions throughout the year.

2. Order 5 of course is not an order at all but a notation. As a consequence it is not a matter that is validly capable of being appealed against. The essence of the father’s complaint is that in relation to his appeal against Order 4. If that were stayed then the children may attend church from time to time by what he describes as his agreement with them about the way in which they will attend.

3. I am prepared to stay Order 4 pending the appeal for these reasons.  While I am not satisfied that there would be particular hardship occasioned either to the father or the children by continuation of that order until the Full Court has had an opportunity to consider the appropriateness of the order or otherwise in appellant terms, the application in this Court event was served by the husband on the wife and I am satisfied that this occurred.  That included an affidavit from him in which he reported a conversation between himself and the children’s mother, in which she says and I quote from paragraph 8 of this affidavit:

   And I have already told the children that new arrangements might mean missing church every second week.

4. In those circumstances where she has not taken the opportunity to come to Court to oppose the application given that it reflects only a small part of the arrangements about the children, I am prepared to make the order for stay and do so.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

Associate: 

Date:  8 June 2007