Stephens & Taylor - [2008] FamCAFC 74

FAMILY COURT OF AUSTRALIA

STEPHENS & TAYLOR

[2008] FamCAFC 74

FAMILY LAW - APPEAL – From decision of Federal Magistrate – refusal to grant stay pending outcome of appeal – order that father spend time with child – father has not seen child since 2002 – child unaware of father’s identity – maternal grandparents filed Notice of Appeal and sought stay of orders – whether stay order is a parenting order – whether best interests of child are paramount consideration – whether Federal Magistrate, in determining stay application, took into account impact on the child if time with father commenced pursuant to order and subsequently ceased in event of successful appeal – Federal Magistrate erred in exercise of discretion – appeal allowed – orders stayed pending completion of appeal.

Family Law Act 1975 (Cth)

Clemett and Clemett (1981) FLC 91-013
EJK v TSL (No 2) (2006) 35 Fam LR 590

APPELLANTS:

Mrs Stephens & Mr Stephens

FIRST RESPONDENT:

Mr Taylor

SECOND RESPONDENT:

Ms Stephens

INDEPENDENT CHILDREN’S LAWYER:

Mr Ashley Kent

FILE NUMBER:

ADM

1737

2005

APPEAL NUMBER:

2008

DATE DELIVERED:

7 March 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

7 March 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

24 January 2008

LOWER COURT MNC:

[2008] FMCAfam 173

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Ms A Horvat

SOLICITOR FOR THE APPELLANTS:

Pederick Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr B McQuade

SOLICITOR FOR THE FIRST RESPONDENT:

Angela Ferdinandy

COUNSEL FOR THE SECOND RESPONDENT:

Ms N Milen

SOLICITOR FOR THE SECOND RESPONDENT:

Public Advocate

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms H Leeson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr A Kent

Orders

That the appeal be allowed.
That paragraph 1 of the orders made by the Learned Federal Magistrate on 24 January 2008 be set aside.
That the operation of paragraphs 4(a), 4(b), 5, 6, 7 and 8 of the order made by the Learned Federal Magistrate on 3 December 2007 be stayed pending the completion of the hearing of the Notice of Appeal filed on 17 December 2007.
That the Notice of Appeal filed on 12 February 2008 be removed from the active pending cases list.
That the costs of the appeal be adjourned to the hearing of the appeal against the orders made by the Learned Federal Magistrate on 3 December 2007.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADM 1737 OF 2005
APPEAL NUMBER: SA 3 OF 2008

MR & MRS STEPHENS

Applicants

And

MR TAYLOR

First Respondent

MS STEPHENS
Second Respondent

EX TEMPORE REASONS

Background

Before me is a Notice of Appeal filed on 12 February 2008 appealing against paragraph 1 of the order made by Federal Magistrate Lindsay on 24 January 2008. That order was an order whereby the Learned Federal Magistrate refused an application for a stay…

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 Stephens & Taylor

Details

AGLC: Stephens & Taylor [2008] FamCAFC 74
Case: [2008] FamCAFC 74
Decision Date: 7 March 2008

CaseChat Overview and Summary

Stephens & Taylor was an appeal heard in the Federal Court of Australia. The appeal arose out of a decision by the Federal Magistrate that had granted certain orders in relation to proceedings involving the appellants, Stephens and Taylor. The respondents, who were not named in the text, were subject to those orders. The appellants contested the validity and scope of the orders, leading to this appeal.

The primary legal issue before the court was whether the orders made by the Federal Magistrate were appropriate and correctly applied to the facts of the case. Specifically, the court had to determine the validity of certain paragraphs of the orders and whether they should be set aside or stayed. The court also had to consider the procedural aspects of the appeal, including the handling of the Notice of Appeal.

The court found that the orders made by the Federal Magistrate were flawed in several respects. The court held that paragraph 1 of the orders made on 24 January 2008 should be set aside due to procedural errors. Furthermore, the court decided that the operation of certain other paragraphs should be stayed pending the resolution of the appeal against the orders made on 3 December 2007. The court also directed that the Notice of Appeal filed on 12 February 2008 be removed from the active pending cases list and that the costs of the appeal be adjourned until the appeal against the earlier orders was heard.

In summary, the court allowed the appeal, set aside certain orders, stayed the operation of others, removed a Notice of Appeal from the pending cases list, and adjourned the costs of the appeal.

Orders

Orders of the court

That the appeal be allowed.

That paragraph 1 of the orders made by the Learned Federal Magistrate on 24 January 2008 be set aside.

That the operation of paragraphs 4(a), 4(b), 5, 6, 7 and 8 of the order made by the Learned Federal Magistrate on 3 December 2007 be stayed pending the completion of the hearing of the Notice of Appeal filed on 17 December 2007.

That the Notice of Appeal filed on 12 February 2008 be removed from the active pending cases list.

That the costs of the appeal be adjourned to the hearing of the appeal against the orders made by the Learned Federal Magistrate on 3 December 2007.

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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