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Sampson & Hartnett

Sampson & Hartnett

Case [2007] FamCA 732 1 June 2007

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FAMILY COURT OF AUSTRALIA

SAMPSON & HARTNETT [2007] FamCA 732

FAMILY LAW – CHILDREN – RESIDENCE – APPEAL FROM FAMILY COURT OF AUSTRALIA – APPEAL AGAINST REFUSAL OF A STAY OF ORDERS – Established that the circumstances before the trial Judge in denying a stay of orders materially different from those currently applying - In application of relevant law to the circumstances of the case the appeal allowed - Limiting frequency of changes in custodial arrangements and preserving the current, and comparatively satisfactory, circumstances of the children pending the outcome of the substantive appeal - Discussed House v The King (1936) 55 CLR 499 and Clemett v Clemett (1981) FLC 91-013

House v The King (1936) 55 CLR 499
Clemett v Clemett (1981) FLC 91-013
Carlin v Carlin (1977) FLC 90-320

APPELLANT: J SAMPSON

RESPONDENT: M A HARTNETT

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYF 3827 of 2004

APPEAL NUMBER: EA
EA 60
54 of
of 2007
2007

DATE DELIVERED: 1 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Coleman, Thackray and Mushin JJ

HEARING DATE: 1 June 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE:
30 April 2007

21 March 2007

LOWER COURT MNC:
REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr S. Lloyd

SOLICITOR FOR THE APPELLANT: Paul and Paul Lawyers

COUNSEL FOR THE RESPONDENT: Mr Michael Kearney

SOLICITOR FOR THE RESPONDENT: Karras Partners

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr G M Gould

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission of NSW
Orders
1.That the appeal against the refusal of a stay on 30 April 2007 be allowed.

2.That Order 17 of the orders made by Moore J on 21 March 2007 be and is hereby stayed pending further order of the Full Court.

3.That the determination of the terms and conditions upon which Order 17 of 21 March 2007 has been stayed pending further order of the Full Court be remitted to the trial Judge.

4.That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5.That the Court grants to the respondent a costs certificate pursuant to the provision of s 6 of the Federal Proceedings (Costs)Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

6.That the Court grants to the ICL a costs certificate pursuant to s 6 of the Federal Proceedings (Costs)Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the ICL in respect of the costs incurred by the ICL in…

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 Sampson & Hartnett

Details

AGLC: Sampson & Hartnett [2007] FamCA 732
Case: [2007] FamCA 732
Decision Date: 1 June 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning the refusal of a stay of orders made by Moore J on 21 March 2007. The appeal was brought by Sampson & Hartnett, who sought to stay Order 17 of the previous orders.

The primary legal issue before the Full Court was whether the refusal to grant a stay on 30 April 2007 was correct, and consequently, whether Order 17 of the 21 March 2007 orders should be stayed pending further order. The Court also considered the appropriate costs certificates to be issued under the Federal Proceedings (Costs) Act 1981.

The Full Court allowed the appeal against the refusal of the stay, ordering that Order 17 of the 21 March 2007 orders be stayed pending further order. The determination of the terms and conditions of this stay was remitted to the trial judge. The Court also issued costs certificates under the Federal Proceedings (Costs) Act 1981 to the appellant, the respondent, and the Independent Children's Lawyer (ICL), reflecting the appropriateness of payments for costs incurred in relation to the appeal and a new trial. Importantly, the Court noted that its orders did not affect certain existing orders concerning the children's time with their father on a specific weekend, nor the operation of orders made by Dawe J on 24 May 2007. The appeal was fixed for hearing on 23 August 2007.

Orders

Orders of the court

1. That the appeal against the refusal of a stay on 30 April 2007 be allowed.

2. That Order 17 of the orders made by Moore J on 21 March 2007 be and is hereby stayed pending further order of the Full Court.

3. That the determination of the terms and conditions upon which Order 17 of 21 March 2007 has been stayed pending further order of the Full Court be remitted to the trial Judge.

4. That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5. That the Court grants to the respondent a costs certificate pursuant to the provision of s 6 of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

6. That the Court grants to the ICL a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the ICL in respect of the costs incurred by the ICL in relation to the appeal.

7. That the parties and the ICL are each granted a certificate pursuant to s 8(1) of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court if would be appropriate for the Attorney-General to authorise a payment under that Act to him/her in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to the new trial ordered.

8. Note that the orders of the Full Court of this date have no effect upon the operation of orders made by Dawe J on 24 May 2007, nor the orders of Moore J on 30 April 2007 insofar as they provide for the children to spend time with the father in Sydney on the weekend commencing 1 June 2007.

9. Note that the appeal is fixed for hearing in Sydney on 23 August 2007.

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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Citations

AGLC Citation

Sampson & Hartnett [2007] FamCA 732

Most Recent Citation

Paquette and Paquette (No.2) [2008] FMCAfam 150

Cases citing this decision · 10 of 10 shown

CHEADLE & POINTER
[2020] FamCA 327 Para 1

…In respect to the issue as to whether the Court should favour maintaining the status quo as to where the child lives, in Sampson & Hartnett [2007] FamCA 732, Coleman J, with whom Thackray and Mushin JJ agreed, drew a distinction between a situation where the child’s living arrangements were “satisfactory in the sen…
MASOUD & MASOUD
[2015] FamCA 903 Para 5

…st the Court exercising discretion to interfere with the orders made by Benjamin J. Reference was made to Sampson & Hartnett [6] in that respect. [6] [2007] FamCA 732.…
Pedrana and Cox (No. 2)
[2012] FamCA 756 Para 6

…In Sampson and Hartnett [2007] FamCA 732, the Full Court considered an appeal from a refusal to grant a stay where the children had been ordered to move from Geelong to Sydney. In relation to the consideration of the children’s current circumstances, Coleman J (Thackray and Mushin JJ agreeing) stated: 34. … It is a…
Davidson and Davidson (No 2)
[2010] FamCA 7 Para 4

…e present circumstances of the children could be described as “satisfactory”, an important issue as noted by the Full Court in Sampson & Hartnett [2007] FamCA 732. As the Full Court noted, at [35], a distinction needs to be drawn : . . . between satisfactory in the sense of less than ideal, which was clearly the si…
Aldridge and Keaton
[2009] FMCAfam 314 Para 1

…Clemett & Clemett (1981) FLC 91-013 and other more recent decisions which re-affirm the principles to be applied (see for example Sampson & Hartnett [2007] FamCA 732 and Trahn & Long (No. 2) [2008] FamCAFC 194).…
Champness and Hansen (No. 2)
[2008] FamCA 1012

…013 EJK and TSL (No 4) [2006] FamCA 1022 Brennan and Shaw (Stay Appeal) [2008] FamCAFC 138 W and W (unreported, 10 October 1996) Sampson and Hartnett [2007] FamCA 732 CSN v JBN (1998) 24 Fam LR 174 Sanders (1976) FLC 90-078 K and B (2006) FLC 93-288 EJK and TSL (No 2) (2006) 35 Fam LR 590…
Brennan & Shaw (No. 2)
[2008] FamCA 744

…nd JBN [1998] FamCA 1766 SRS and KLS [2005] FamCA 700 EJK and TSL (No 2) [2006] FamCA 806 Waite & Waite-Hollins [2007] FamCA 477 Sampson and Hartnett [2007] FamCA 732 Stephens and Taylor [2008] FamCAFC 74 Bletch and Douglas [2008] FamCA 178 State Central Authority and Ustinov (No 2) [2008] FamCA 368…
Webster & Webster
[2008] FamCA 1257 Para 1

…estments Pty Ltd (No. 1) (1986) 161 CLR 681 at 683 and 685, and in parenting cases Clement and Clement (1981) FLC 91- 013. See also Sampson & Harnett [2007] FamCA 732.…
Paquette and Paquette (No.2)
[2008] FMCAfam 150 Para 1

…e have been a number of recent Full Court authorities confirming the principles to be applied ( EJK & TSL (No.2) [2006] FamCA 806; Sampson & Hartnett [2007] FamCA 732.)…
Noelle and Fournier
[2007] FamCA 1048 Para 3

…stay. In deliberations, Coleman J (with whom Thackray and Mushin JJ agreed) expressly approved of Moore J’s analysis of the applicable law. [2] [2007] FamCA 732 (a copy of which was also provided to all representatives)…

View all 10 citing cases →

Cases cited in this decision · 3 of 3 shown

Clemett v Clemett
[2021] NZHC 317

…atisfactory, circumstances of the children pending the outcome of the substantive appeal - Discussed House v The King (1936) 55 CLR 499 and Clemett v Clemett (1981) FLC 91-013 House v The King (1936) 55 CLR 499 Clemett v Clemett (1981) FLC 91-013 Carlin v Carlin (1977) FLC 90-320 APPELLANT: J SAMPSON RESPONDENT: M A HARTNE…
House v R
[1936] HCA 40

…t, and comparatively satisfactory, circumstances of the children pending the outcome of the substantive appeal - Discussed House v The King (1936) 55 CLR 499 and Clemett v Clemett (1981) FLC 91-013 House v The King (1936) 55 CLR 499 Clemett v Clemett (1981) FLC 91-013 Carlin v Carlin (1977) FLC 90-320 APPELLANT: J S…
House v The King
63 WN 176

…erving the current, and comparatively satisfactory, circumstances of the children pending the outcome of the substantive appeal - Discussed House v The King (1936) 55 CLR 499 and Clemett v Clemett (1981) FLC 91-013 House v The King (1936) 55 CLR 499 Clemett v Clemett (1981) FLC 91-013 Carlin v Carlin (1977) FLC 90-320 APP…

Legislation cited in this decision · 1

Federal Proceedings (Costs) Act 1981 (Cth)
1 mention