Sheldon & Weir (No. 4)

Case [2010] FamCA 1214


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

  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.

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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Details
AGLC
Sheldon & Weir (No. 4) [2010] FamCA 1214
Case
[2010] FamCA 1214
Decision Date

CaseChat Overview and Summary

This matter came before Ryan J concerning an application by the father. The dispute involved orders relating to a child, R Sheldon, and the father's intention to appeal certain existing orders. The father sought a stay of various orders pending his appeal.

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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