Strahan and Strahan (Stay) - [2009] FamCA 1238

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
Waite and Waite-Hollins & Anor (2004) FLC 93-325
K and B (2006) FLC 93-288
Carlin and Carlin (1977) FLC 90-320
Kelly and Kelly (1981) FLC 91-007
Molier and Van Wyk (No 2) (1981) FLC 91-001
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Gull & Gull (Stay Application) [2009] FamCAFC 104
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Davies & Davies [1999] FamCA 2121

EJK & TSL (No 4) [2006] FamCA 1022

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

INDEPENDENT CHILDREN’S LAWYER:

Ann Bills & Associates

FILE NUMBER:

ADF

228

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…

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.

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Details

Case: [2009] FamCA 1238
Decision Date: 15 December 2009

CaseChat Overview and Summary

In *Strahan and Strahan (Stay)*, the wife sought a stay of certain orders made by Justice Strickland on 5 November 2009, pending the determination of her appeal against those orders. The application was heard by Justice Dawe.

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

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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