Swefford and Tarbell (No 5)

[2012] FamCA 989

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL (NO. 5) [2012] FamCA 989

FAMILY LAW – PROCEDURAL – application for a stay of orders discharging a Chapter 15 expert and appointing an alternate expert – whether the applicant has demonstrated substantial grounds for appeal – consideration as to when the appeal was likely to be heard – the balance of hardship between the parents and whether a lack of a stay would render the applicant’s appeal (if successful) nugatory – consideration of what order is in the child’s best interests – where an order for a stay is refused.

APPLICANT: Ms Swefford

RESPONDENT: Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 22 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 22 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The mother’s Application in a Case filed 15 November 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. In the orders that I made on 22 October 2012, and ex tempore reasons I gave on that day, I dealt with an issue arising from an advice given by A/Prof Q that she wished to withdraw as a single expert in this matter.  Having considered the material I had at that time, I made orders discharging A/Prof Q and appointing Dr R as an alternate expert to do the report.

2. The mother, by way of an Application in a Case filed on 15 November 2012, has sought that various orders that I made on 22 October 2012 be stayed until the appeal that the mother filed on 8 November 2012 in relation to those orders is heard and determined.  She supported her application for stay by way of an affidavit sworn on 15 November 2012 and filed on that day, but I have not been specifically taken to any part of that affidavit by the mother during her submissions.

3. There are two pieces of agreed information that I have been given today.  The first is that the earliest probable date that the appeal will be dealt with by the Full Court is March 2013, and secondly, it is agreed that, in 2008, lawyers on behalf of the mother suggested Dr R as an appropriate expert to prepare a report in this case. 

4. The mother, in her Notice of Appeal filed on 8 November 2012, has set out 22 grounds of appeal (the last two grounds are both numbered 21) in response to my ex tempore reasons, which, when engrossed,…