Steele and Galloway (No 3)

[2011] FamCA 974

FAMILY COURT OF AUSTRALIA

STEELE & GALLOWAY (NO 3) [2011] FamCA 974

FAMILY LAW – CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Steele

RESPONDENT: Mr Galloway

FILE NUMBER: SYC 6615 of 2007

DATE DELIVERED: 15 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 15 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr de Robillard

SOLICITOR FOR THE RESPONDENT: Ms Donnelly

Orders

1. The mother’s Application in a Case filed 6 December 2011 is dismissed.

2. In the circumstances the intention of the mother to make an application for variation is noted and the matter adjourned to 16 January 2012.

3. Within seven days the mother is to file and serve an application setting out with precision the orders for variation that she seeks of the orders previously made in the proceedings together with any further affidavit on which she wishes to rely in support of her application.

4. The father is to file and serve on or before 8 January 2012 any response he wishes to file to the application together with any affidavit setting forth the evidence-in-chief of any witness upon whom he wishes to rely.

5. The matter will be set down for hearing before me at 10.00 am on Monday, 16 January 2012; estimated hearing time less than half a day.

   AND THE COURT NOTED it is a matter which in the Court’s view may require cross-examination of those involved and some limited cross-examination may in fact be permitted.

6. Leave is granted to the father to make an oral application for costs.

7. The costs of today are reserved to the hearing of the matter.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6615  of 2007

Ms Steele

Applicant

And

Mr Galloway

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed by the mother seeking orders by way of stay of certain orders made by me in principal proceedings between the father and mother concerning the parenting of their child.

2. It appears upon discussion with the mother’s representatives that in fact what the mother is seeking is an order by way of variation of the orders made by me; she asserting that there are significant changes in circumstances since the making of the orders which justify a change to them.

3. The mother files in support of her application two affidavits, one most recently filed is on 14 December 2011 which I am informed was received by the solicitors for the father at approximately 3.00 pm yesterday.

4. The matters which are asserted by the mother appear to be in dispute.

5. It is not my intention to grant a stay and the application for a stay is refused; it is refused because I have already refused a stay of the order in circumstances on an application previously made and it is not in my view other than a repetition of such an application.  An appeal is the proper recourse from such a refusal.

6. The mother does however have an ability to file an application for an order varying orders made if she can show that there has been significant and serious matters arising since the making of an original order which, in the interests of the child, justifies such a change.  However such an application has to be properly pleaded and the father seeks time on which to file material in response to that so recently filed by the mother.

7. For these reasons I make the Orders as set forth above.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 15 December 2011.

Associate:

Date:  20 December 2011