Swefford & Tarbell (No 2) - [2012] FamCAFC 213

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL (NO. 2)

[2012] FamCAFC 213

FAMILY LAW ─ APPEAL ─ PRACTICE AND PROCEDURE ─ Stay of proceedings ─ Where the mother sought leave to appeal against the refusal of the trial judge to stay the orders his Honour made on 22 October 2012 appointing the single expert ─ Whether refusing the mother’s application to stay the orders rendered the appeal against the orders of 22 October 2012 (EA 149 of 2012) nugatory ─ Where although the trial judge accepted that it was possible that Legal Aid NSW would not fund the mother’s costs for another report, his Honour failed to address the consequences for the proceedings if this came to pass ─ Where the Full Court was of the view that in coming to the determination not to grant a stay, the trial judge failed to take into account the underlying point that, if the mother’s appeal succeeded but the stay was not granted, she would be materially disadvantaged in that the single expert appointed would not be the single expert and she would not be funded to pay for any subsequently appointed expert ─ Leave granted to the mother to bring the appeal against the trial judge’s refusal to stay the orders of 22 October 2012 ─ Where the Full Court re-exercised the discretion of the trial judge and stayed the orders of 22 October 2012 pending the disposition of the appeal against those orders.

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
K and B (2006) FLC 93-288
Sheldon and Weir [2011] FamCAFC 5

APPELLANT:

Ms Swefford

RESPONDENT:

Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER:

Christos Christaki

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:

153

2012

ORDERS MADE:

14 December 2012

JUDGMENT DELIVERED:

17 December 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace & Ryan JJ

HEARING DATE:

7 December 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 November 2012

LOWER COURT MNC:

[2012] FamCA 989

REPRESENTATION

FOR THE APPELLANT:

Ms Swefford 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 Sydney Central Family Law

Orders as made on 14 December 2012:

Appeal against the order of Watts J made on 22 November 2012 allowed.
Set aside the order of Watts J made 22 November 2012 dismissing the mother’s application for a stay of orders made on 22 October 2012.
Order 3 made on 22 October 2012 appointing Dr R is stayed pending the disposition of the appeal against the orders of 22 October 2012.
Costs are reserved to the Full Court hearing the appeal EA 149 of 2012.

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).

THE FULL COURT OF THE FAMILY…

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 Swefford & Tarbell (No 2)

Details

AGLC: Swefford & Tarbell (No 2) [2012] FamCAFC 213
Case: [2012] FamCAFC 213
Decision Date: 14 December 2012

CaseChat Overview and Summary

Ms Swefford sought leave to appeal the decision of Watts J, who refused to grant a stay of the orders he made on 22 October 2012 appointing Dr R as the single expert in the parenting proceedings between Ms Swefford and Mr Tarbell. The Full Court of the Family Court of Australia allowed the appeal and stayed the orders made by Watts J on 22 October 2012 appointing Dr R as the single expert. The Court considered the discretion the trial judge exercised in refusing to grant a stay and found that he failed to consider the underlying issue that, if the mother’s appeal succeeded but the stay was not granted, she would be materially disadvantaged because she would not be funded to pay for any subsequently appointed expert. The Full Court found the mother’s appeal had been made out and exercised its discretion to stay the orders of 22 October 2012 appointing Dr R as the single expert pending the outcome of the appeal against those orders. The question of costs of the appeal was reserved to the Full Court hearing the appeal EA 149 of 2012.

Orders