FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN (STAY) | [2009] FamCA 1238 |
| FAMILY LAW – ORDER – stay – application by the wife seeking a stay of interim parenting orders pending the determination of an appeal – whether the wife has an arguable case – whether the application for a stay is bona fides – consideration of the best interests of the child – consideration of the hardship to the wife if the stay is refused compared with the hardship to the husband if the stay is granted – whether the failure to grant a stay would render a successful appeal nugatory – stay granted |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 1.13 & 22.11 |
| Strahan & Strahan (Disqualification) [2009] FamCAFC 204 EJK & TSL (No 4) [2006] FamCA 1022 |
| APPLICANT: | Ms Strahan |
| RESPONDENT: | Mr Strahan |
| INDEPENDENT CHILDREN’S LAWYER: | Ann Bills & Associates |
| FILE NUMBER: | ADF | 228 | of | 2005 |
| DATE DELIVERED: | 15 December 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 24 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pyke QC with Mr Holland |
| SOLICITOR FOR THE APPLICANT: | Pederick Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Ackman QC with Ms MacMillan SC |
| SOLICITOR FOR THE RESPONDENT: | Robinson & Mason |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs West |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ann Bills & Associates |
Orders
That pending the determination of the wife’s appeal paragraph 1 of the order of the Honourable Justice Strickland of 5 November 2009 be stayed upon the following condition:
(a)That the wife diligently prosecute her pending appeal in respect of the orders made on 5 November 2009 without delay.
IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan (Stay) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 228 of 2008
| MS STRAHAN |
Applicant
And
| MR STRAHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed on 13 November 2009, Ms Strahan (“the wife”) sought that the order of His Honour Justice Strickland made on 5 November 2009 be “stayed pending further order”.The affidavit of her solicitor filed at the same time as the application indicated that the stay was sought pending an appeal.
The application also sought other orders in relation to the wife’s proposed travel overseas, but at the hearing of the application the wife informed the Court that her travel plans had changed. It was therefore not necessary for the Court to consider the orders sought by the wife in…
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- Case
- [2009] FamCA 1238
- Decision Date
CaseChat Overview and Summary
The central legal issue before Justice Dawe was whether the wife had established sufficient grounds to warrant a stay of the 5 November 2009 orders. This required the court to consider the principles governing the grant of a stay pending appeal, including the likelihood of success on appeal and the balance of convenience.
Justice Dawe granted the stay, imposing a condition that the wife must diligently prosecute her appeal without delay. This indicates that the court was satisfied that the wife had met the necessary threshold for a stay, likely by demonstrating a serious question to be tried on appeal and that the balance of convenience favoured granting the stay to preserve the status quo pending the appeal's resolution.
Orders
Orders of the court
1.
That pending the determination of the wife’s appeal paragraph 1 of the order of the Honourable Justice Strickland of 5 November 2009 be stayed upon the following condition:
(a) That the wife diligently prosecute her pending appeal in respect of the orders made on 5 November 2009 without delay.
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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