FAMILY COURT OF AUSTRALIA
| SHELDON & WEIR (NO. 4) | [2010] FamCA 1214 |
| FAMILY LAW – ORDERS – STAY - application for a stay of parenting orders – where notice of appeal not filed – whether Court has jurisdiction to grant of stay - as the time for lodgement of an appeal had not expired and the father informed the Court it is his intention to appeal there is jurisdiction to determine his stay application – temporary stay granted upon conditions |
| Family Law Rules 2004 r r 1.04, 1.09, 1.10, 1.12(3), 1.21, 22.03, 22.09, 22.11(2) |
| Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 Truong & Liu (Chen) (No. 2) [2008] FamCAFC 194 Friscioni & Friscioni [2009] FamCAFC 43 De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678 JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 |
| APPLICANT: | Mr Sheldon |
| RESPONDENT: | Ms Weir |
| FILE NUMBER: | (P)NCC | 3259 | of | 2009 |
| DATE DELIVERED: | 21 December 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 December 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Peattie |
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring |
| COUNSEL FOR THE RESPONDENT: | Mr Tregilgas |
| SOLICITOR FOR THE RESPONDENT: | Burke Elphick & Mead |
Orders
Subject to compliance by the father with Orders 2 and 3 of these orders, Orders 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, 23, 24, 25, 31 and 32 be stayed until 11 January 2011 or further order of the Court, whichever shall first occur.
No later than 5.00 pm on 22 December 2010 the father shall deposit $300 cash with the mother’s solicitors towards the mother’s living expenses.
The father shall file and serve a Notice of Appeal, pay any required filing fee and lodge other documents required by the Family Law Rules 2004 no later than 6 January 2011.
In the event the father fails to comply with Order 3, Order 1 is discharged.
Service of the documents referred to in Order 4 is to be effected within 24 hours of filing.
The mother is restrained from removing the child R Sheldon, born … April 2008 from the Commonwealth of Australia before 12 January 2011 or further order of the Court, whichever shall first occur.
It is requested that the Australian Federal Police place the abovenamed child on the PASS alert system in force at all points of arrival and departure in the Commonwealth of Australia and maintain her on the PASS alert system until 12 January 2011 or further order of the Court whichever shall first occur.
The father’s Application in a Case filed 17 December 2010 is adjourned for further hearing before me at 10.00 am on 10 January 2011.
Liberty to apply to Ryan J on two days notice.
IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir (No. 4) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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- AGLC
- Sheldon & Weir (No. 4) [2010] FamCA 1214
- Case
- [2010] FamCA 1214
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether to grant a stay of specific orders, including those concerning the child and financial matters, pending the father's appeal, and whether to impose conditions on that stay. The court also considered an application by the father filed on 17 December 2010.
Ryan J ordered that a number of specified orders be stayed until 11 January 2011, subject to the father complying with certain conditions. These conditions included depositing $300 cash with the mother's solicitors by 22 December 2010 towards the mother's living expenses, and filing and serving a Notice of Appeal and associated documents by 6 January 2011. The court also restrained the mother from removing the child from the Commonwealth of Australia before 12 January 2011 and requested the Australian Federal Police place the child on the PASS alert system until that date. The father's application filed on 17 December 2010 was adjourned for further hearing on 10 January 2011. The court stipulated that if the father failed to comply with the conditions for filing the appeal, the stay would be discharged.
Orders
Orders of the court
1.
Subject to compliance by the father with Orders 2 and 3 of these orders, Orders 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, 23, 24, 25, 31 and 32 be stayed until 11 January 2011 or further order of the Court, whichever shall first occur.
2.
No later than 5.00 pm on 22 December 2010 the father shall deposit $300 cash with the mother’s solicitors towards the mother’s living expenses.
3.
The father shall file and serve a Notice of Appeal, pay any required filing fee and lodge other documents required by the Family Law Rules 2004 no later than 6 January 2011.
4.
In the event the father fails to comply with Order 3, Order 1 is discharged.
5.
Service of the documents referred to in Order 4 is to be effected within 24 hours of filing.
6.
The mother is restrained from removing the child R Sheldon, born … April 2008 from the Commonwealth of Australia before 12 January 2011 or further order of the Court, whichever shall first occur.
7.
It is requested that the Australian Federal Police place the abovenamed child on the PASS alert system in force at all points of arrival and departure in the Commonwealth of Australia and maintain her on the PASS alert system until 12 January 2011 or further order of the Court whichever shall first occur.
8.
The father’s Application in a Case filed 17 December 2010 is adjourned for further hearing before me at 10.00 am on 10 January 2011.
9.
Liberty to apply to Ryan J on two days notice.
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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