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
The appeal against the orders made by the Honourable Justice Ryan on 11 January 2011 be dismissed.
There be no order for costs in relation to the appeal against the orders of 11 January 2011.
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
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
The factual background to this case is set out in detail in the reasons…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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.