Spalding & Barbaro (No 6) - [2023] FedCFamC1F 846

FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)
Spalding & Barbaro (No 6) [2023] FedCFamC1F 846

File number(s): BRC 6176 of 2021

Judgment of: HOGAN J

Date of judgment: 6 October 2023

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – STAY – where the father seeks a stay of parenting orders pending the hearing and finalisation of an appeal – where the stay is not in the best interests of the children – where the application is dismissed

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Clemett and Clemett (1981) FLC 91-013; [1980] FamCA 90

Friscioni & Friscioni [2009] FamCAFC 43

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jackson & Balen [2009] FamCAFC 131

Trahn & Long (No. 2) [2008] FamCAFC 194

Division: First Instance

Number of paragraphs: 25

Date of hearing: 6 October 2023

Place: Brisbane

Counsel for the Applicant: Ms Fraser

Solicitor for the Applicant: Hickey Lawyers

Counsel for the Respondent: Mr Dodd

Solicitor for the Respondent: Mills Oakley Lawyers
ORDERS

BRC 6176 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SPALDING

Applicant

AND:
MS BARBARO

Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 25 September 2023, and sealed 27 September 2023, is dismissed.

IT IS NOTED THAT:
A.Having informed the parties of its intention to deal with the Respondent’s application for an order for the costs of and incidental to the application for a stay when the application for costs associated with the trial which culminated in the Order made on 25 August 2023 is determined, the Court received submissions on behalf of each of the parties about the issue of an order for the costs of and incidental to the application for a stay.
B.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
C.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this…

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.

Continue reading Spalding & Barbaro (No 6)

Details

AGLC: Spalding & Barbaro (No 6) [2023] FedCFamC1F 846
Case: [2023] FedCFamC1F 846
Decision Date: 6 October 2023

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) presided over the case of Spalding & Barbaro (No 6), where the applicant, Mr Spalding, sought a stay of parenting orders that had been previously made. These orders were to remain in effect pending the hearing and final determination of his appeal. The respondent, Ms Barbaro, opposed the application. The primary concern for the court was whether the stay of the parenting orders would be in the best interests of the children involved. The court needed to determine if the applicant had demonstrated that the stay was necessary to ensure the welfare of the children and if there were any compelling reasons why the orders should not be enforced during the appeal process.

The court examined the legal principles governing stays of parenting orders and considered the best interests of the children as the paramount consideration. The applicant argued that a stay was necessary to ensure the children's welfare, but the court found that the application did not demonstrate that the stay was in the best interests of the children. Hogan J held that the children's welfare would not be adequately protected by a stay and that the current parenting orders should remain in effect. Consequently, the court dismissed the application for a stay.

Hogan J dismissed the application for a stay of the parenting orders, finding that it was not in the best interests of the children. The court emphasised that the welfare of the children was the paramount consideration and that the applicant had not provided sufficient grounds to justify a stay. As a result, the parenting orders remained in effect until the appeal was heard and determined. The dismissal of the application meant that the children would continue to be governed by the existing parenting orders during the pendency of the appeal.

Orders

Orders of the court

BRC 6176 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SPALDING

Applicant

AND:

MS BARBARO

Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 25 September 2023, and sealed 27 September 2023, is dismissed.

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.

File number(s):	BRC 6176 of 2021
Judgment of:	HOGAN J
Date of judgment:	6 October 2023
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – STAY – where the father seeks a stay of parenting orders pending the hearing and finalisation of an appeal – where the stay is not in the best interests of the children – where the application is dismissed
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Clemett and Clemett (1981) FLC 91-013; [1980] FamCA 90 Friscioni & Friscioni [2009] FamCAFC 43 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson & Balen [2009] FamCAFC 131 Trahn & Long (No. 2) [2008] FamCAFC 194
Division:	First Instance
Number of paragraphs:	25
Date of hearing:	6 October 2023
Place:	Brisbane
Counsel for the Applicant:	Ms Fraser
Solicitor for the Applicant:	Hickey Lawyers
Counsel for the Respondent:	Mr Dodd
Solicitor for the Respondent:	Mills Oakley Lawyers

BRC 6176 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SPALDING Applicant
AND:	MS BARBARO Respondent

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	6 OCTOBER 2023