Sellers and Sellers (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELLERS & SELLERS (No.2) [2016] FCCA 2381

Catchwords:
FAMILY LAW – Stay Application – appellant Father seeking a stay of final orders made by this Court on 19 August 2016 pending the outcome of his appeal – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLA 513
Tranh & Long [2008] FamCAFC 194
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Friscioni & Friscioni [2009] FamCAFC 43
Sheldon & Weir [2011] FamCA 2
Cape & Cape [2013] FamCAFC 114
Blakely & Morrell (No.2) [2014] FamCAFC 226

Applicant: MR SELLERS

Respondent: MS SELLERS

File Number: MLC 9623 of 2015

Judgment of: Judge Bender

Hearing date: 9 September 2016

Date of Last Submission: 9 September 2016

Delivered at: Melbourne

Delivered on: 13 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Tulloch

Solicitors for the Applicant: J A Middlemis

Counsel for the Respondent: Mr McLeod

Solicitors for the Respondent: Joliman Lawyers

ORDERS

1. The Father’s application for a stay of the Orders dated 19 August 2016 is hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sellers & Sellers (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9623 of 2015

MR SELLERS

Applicant

And

MS SELLERS

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 19 August 2016 final orders were handed down whereby the Mother was permitted to relocate with the parties’ children X born (omitted) 2007 (‘X’) and Y born (omitted) 2012 (‘Y’) from (omitted) to (omitted).

2. Whilst the Mother had indicated in her evidence a desire to immediately relocate, she took on board the comments in my ex-tempore judgment that she delay relocation by a week to enable X to attend his book parade and say goodbye to his school friends.

3. On 25 August 2016 the Father filed a Notice of Appeal seeking that the appeal be upheld and the proceedings be remitted for trial by a different Federal Circuit Court Judge. In the Notice of Appeal he Father set out seven grounds of appeal with a notation that the grounds of appeal had been prepared without the Appellant’s practitioner having had an opportunity to consider the transcript or to read a transcript of the ex-tempore judgment of the Court and accordingly noted it may be necessary to amend the grounds of appeal and/or to add additional grounds of appeal upon the settled judgment being released or the transcript received.

4. Contemporaneously with the filing of the Notice of Appeal the Father filed an Application in a Case seeking that the Orders made on 19 August 2016 be stayed, that until further order the interim orders made by the Federal Circuit Court of Australia on 23 November 2015 be reinstated and the Mother be restrained from relocating the residence of the children away from the (omitted) area.

5. On 9 September 2016 the Father filed an Amended Notice…