Sheldon & Weir (Stay Application)

Case [2011] FamCAFC 5


FAMILY COURT OF AUSTRALIA

SHELDON & WEIR (STAY APPLICATION) [2011] FamCAFC 5

FAMILY LAW - APPEAL – STAY – FINAL PARENTING ORDERS – where the trial Judge refused to grant a stay of her orders permitting the mother to relocate the child overseas where appeal pending against relocation orders - where no error found in the exercise of discretion – appeal dismissed

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for expedition of appeal against final parenting orders – expedition granted

FAMILY LAW - COSTS – no order for costs

Family Law Act 1975 (Cth)
Friscioni & Friscioni [2009] FamCAFC 43
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Trahn & Long (No. 2) [2008] FamCAFC 194
APPELLANT: Mr Sheldon
RESPONDENT: Ms Weir
FILE NUMBER: NCC 3259 of 2009
APPEAL NUMBER: EA 13 of 2011
EA 4 of 2011
HEARING DATE: 20 January 2011
DATE OF ORDERS: 21 January 2011
DATE OF REASONS: 24 January 2011
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Finn and Ainslie-Wallace JJ
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 11 January 2011
LOWER COURT MNC: [2011] FamCA 2

REPRESENTATION

COUNSEL FOR THE APPELLANT: Self-represented
COUNSEL FOR THE RESPONDENT: Ms Elbourne
SOLICITOR FOR THE RESPONDENT: Burke Elphick & Mead

Orders made on 21 January 2011

  1. The appeal against the orders made by the Honourable Justice Ryan on 11 January 2011 be dismissed.

  2. There be no order for costs in relation to the appeal against the orders of 11 January 2011.

  3. The hearing of the appeal against the orders made by the Honourable Justice Ryan on 8 December 2010 be given such expedition by the Appeal Registrar as is possible, consistent with the progress of the preparation of the appeal.

    It is noted in connection with these orders that it is proposed that the reasons for these orders will be delivered on Monday, 24 January 2011.

IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir (Stay Application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 13 of 2011

EA  4 of  2011

File Number: NCC 3259 of 2009

Mr Sheldon

Appellant

And

Ms Weir

Respondent

REASONS FOR JUDGMENT  

  1. These are reasons for orders made on 21 January 2011. In those orders this Court dismissed an appeal by the father of a child (aged just under three) against orders made by Ryan J on 11 January this year (2011) whereby her Honour refused to stay orders which she had made on 8 December 2010, which “permitted” the mother of the child “to relocate the child to the Republic of Ireland”, notwithstanding that the father had on 23 December 2010 filed an appeal against the orders permitting the relocation of the child.

Factual background

  1. The factual background to this case is set out in detail in the reasons…

Continue reading Sheldon & Weir (Stay Application)

Sign in free to access the full text

Details
AGLC
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Case
[2011] FamCAFC 5
Decision Date

CaseChat Overview and Summary

The stay application was heard by the Family Court of Australia in Sheldon & Weir. The dispute involved a mother who was permitted to relocate her child overseas, a decision that was the subject of a pending appeal. The applicant sought a stay of the trial Judge's orders to prevent the relocation during the appeal process. The central legal issues before the court were whether the trial Judge's decision to deny the stay was erroneous and whether the appeal should be expedited. The court was required to determine if there was a valid basis to grant a stay and whether the appeal warranted expedition due to the urgency of the matter.

The court examined the exercise of discretion by the trial Judge in denying the stay. It found no error in the Judge's reasoning or the application of relevant legal principles. The court held that the trial Judge had appropriately considered the child's best interests and the potential impact of the relocation on the child. The court also noted the importance of maintaining the status quo to ensure the child's welfare during the pendency of the appeal. Consequently, the appeal against the relocation orders was dismissed. However, the court granted the application for the expedition of the appeal due to the urgency and significance of the issues involved.

In summary, the court upheld the trial Judge's decision not to grant a stay of the relocation orders. The appeal was dismissed as there was no identified error in the exercise of discretion. The court did, however, grant the application for the expedition of the appeal, recognising the urgency of the matter. The court made no order for costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.