FAMILY COURT OF AUSTRALIA
| SHELDON & WEIR | [2011] FamCA 2 |
| FAMILY LAW – CHILDREN – application to stay final parenting orders – orders permit international relocation – factors discussed – stay refused |
| Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 Friscioni & Friscioni [2009] FamCAFC 43 Green & Knowles[2010] FamCAFC 248 Gronow v Gronow (1979) 144 CLR 513 K & B (2006) FLC 93-288 Lovell v Lovell (1950) 81 CLR 513 Truong & Liu (No. 2) [2008] FamCAFC 194 |
| APPLICANT: | Mr Sheldon |
| RESPONDENT: | Ms Weir |
| FILE NUMBER: | NCC | 3259 | of | 2009 |
| DATE DELIVERED: | 11 January 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney and Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 December 2010 and 10 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Peattie on 21 December 2010 and the father on his own behalf on 10 January 2011 |
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring Solicitors on 21 December 2010 |
| COUNSEL FOR THE RESPONDENT: | Mr Tregilgas on 21 December 2010 and Mr Bithrey on 10 January 2011 |
| SOLICITOR FOR THE RESPONDENT: | Burke Elphick & Mead |
Orders
That the father’s application that the Court grants a stay of orders made in these proceedings on 8 December 2010 is dismissed.
Prior to the mother’s departure from Australia with the child she shall lodge with Burke Elphick & Mead the proceeds of sale of her motor vehicle.
In the event the mother has been unable to sell her motor vehicle prior to her and the child’s departure from Australia, a trustee for sale shall be appointed to sell the motor vehicle to a bona fide third party for the best price reasonably obtainable. Upon sale the trustee shall deposit the sale proceeds with Burke Elphick & Mead.
Burke Elphick & Mead shall hold the sale proceeds on trust in a controlled monies account pending:
(a)dismissal of the father’s appeal in which case the money shall be returned to the mother; or
(b)in the event of this Court orders the mother to return the child to Australia which she fails to do by the appointed date, release the funds to the father,
whichever first occurs.
That within 24 hours the solicitors for the mother shall give written notice to the father and the Court of the person nominated by the mother to be the trustee for sale of the motor vehicle.
Submissions as to costs shall be made in writing within 28 days by an applicant, reply within 14 days and any additional submissions in answer within a further 7 days.
IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE (BY VIDEOLINK FROM SYDNEY) |
FILE NUMBER: NCC 3259 of 2009
| Mr Sheldon |
Applicant
And
| Ms Weir |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the father’s Application in a Case, filed 17 December 2010, in which he seeks that the parenting orders I made on 8…
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- Sheldon & Weir [2011] FamCA 2
- Case
- [2011] FamCA 2
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether to grant the father's application for a stay of the existing orders. Ancillary to this, the Court was required to determine the appropriate arrangements for the proceeds of sale of the mother's motor vehicle, particularly in light of potential future events concerning the child's location and the father's appeal.
Ryan J dismissed the father's application for a stay. The Court's reasoning focused on establishing a mechanism to secure funds pending the outcome of the father's appeal and to ensure the child's welfare. Orders were made requiring the mother to lodge the proceeds of sale of her motor vehicle with Burke Elphick & Mead. If the vehicle had not been sold prior to departure, a trustee for sale was to be appointed. These proceeds were to be held on trust, to be returned to the mother if the father's appeal was dismissed, or released to the father if the mother failed to return the child to Australia as ordered. The Court also made directions regarding the notification of the trustee and submissions on costs.
Orders
Orders of the court
1.
That the father’s application that the Court grants a stay of orders made in these proceedings on 8 December 2010 is dismissed.
2.
Prior to the mother’s departure from Australia with the child she shall lodge with Burke Elphick & Mead the proceeds of sale of her motor vehicle.
3.
In the event the mother has been unable to sell her motor vehicle prior to her and the child’s departure from Australia, a trustee for sale shall be appointed to sell the motor vehicle to a bona fide third party for the best price reasonably obtainable. Upon sale the trustee shall deposit the sale proceeds with Burke Elphick & Mead.
4.
Burke Elphick & Mead shall hold the sale proceeds on trust in a controlled monies account pending:
(a) dismissal of the father’s appeal in which case the money shall be returned to the mother; or
(b) in the event of this Court orders the mother to return the child to Australia which she fails to do by the appointed date, release the funds to the father,
whichever first occurs.
5.
That within 24 hours the solicitors for the mother shall give written notice to the father and the Court of the person nominated by the mother to be the trustee for sale of the motor vehicle.
6.
Submissions as to costs shall be made in writing within 28 days by an applicant, reply within 14 days and any additional submissions in answer within a further 7 days.
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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