Thornton and Thornton (No 2) - [2015] FamCA 301

FAMILY COURT OF AUSTRALIA

THORNTON & THORNTON (NO 2)

[2015] FamCA 301

FAMILY LAW – PARENTING – Stay – Application for stay of final orders pending appeal – Where there are allegations of sexual abuse made by the mother against the father in relation to the children – Where it is sought that the father’s time with the children remain on a supervised basis until the appeal is determined – Where a stay is ordered on conditions – Where an order is made for the mother to file and serve an application in an appeal seeking an expedited hearing of the appeal as a condition of the stay granted.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Alexander v Cambridge Credit Corp (Receivers Appointed) (1985) 2 NSWLR 685
Clemett & Clemett (1981) FLC 91-013
CSN v JBN (1998) FLC 92-833
EJK v TSL (No 2) (2006) 35 Fam LR 590
FCT v Myer Emporium Ltd (1986) 160 CLR 220
Hock Hing v Foster (No 1) (1989) 13 Fam LR 79
Carlin & Carlin (1977) FLC 90-320
Kelly & Kelly (1981) FLC 91-007
Millar & Millar (1983) FLC 91-326
Molier & VanWyk (No 2) (1981) FLC 91-001
Sanders & Sanders (1976) FLC 90-078
JRN v IEG (1998) 72 ALJR 1329
K & B (2006) FLC 93-288
Lorreck v Watts [2013] FCCA 39

APPLICANT:

Ms Thornton

RESPONDENT:	Mr Thornton
INDEPENDENT CHILDREN’S LAWYER:	Ms Nicola Davies

FILE NUMBER:

BRC

8946

2012

DATE DELIVERED:

24 April 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

24 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Merkin

SOLICITOR FOR THE APPLICANT:

Wiltshire Family Law

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Simonidis Steel Lawyers

SOLICITOR FOR THE CHILDREN’S

LAWYER:

Legal Aid Queensland

Orders

it is ordered until further order that:

Subject to the satisfaction of the condition in paragraph 2 of these orders, the final orders made by the Honourable Justice Murphy on 23 February 2015 are stayed until the hearing of the Applicant Mother’s appeal by the Full Court.
Within seven (7) days of today’s date the Applicant Mother is to file and serve an application in the appeal seeking an expedited hearing of the appeal.

it is ordered that:

Each party’s costs of and incidental to the Applicant Mother’s Application in a
Case filed on 13 April 2015 be reserved.

notation:

This stay of the orders made on 23 February 2015 has been granted on the basis of there being a reasonable prospect of the appeal receiving expedition such that it can be heard in the sittings of the Full Court commencing on 3 August 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornton & Thornton (No 2) 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 BRISBANE

FILE NUMBER: BRC 8946 of 2012

Ms…

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 Thornton and Thornton (No 2)

Details

AGLC: Thornton and Thornton (No 2) [2015] FamCA 301
Case: [2015] FamCA 301
Decision Date: 24 April 2015

CaseChat Overview and Summary

In *Thornton and Thornton (No 2)*, Kent J of the Family Court of Australia considered an application by the Applicant Mother for a stay of final orders made by Justice Murphy on 23 February 2015, pending the hearing of her appeal by the Full Court. The dispute concerned the final orders themselves, the details of which are not specified in this extract, but the application for a stay indicates a significant disagreement with those orders.

The primary legal issue before Kent J was whether to grant a stay of the final orders. This required the court to assess the likelihood of the Applicant Mother's appeal being heard expeditiously and to consider the prospects of success on appeal, as indicated by the notation regarding the basis for granting the stay. The court also had to determine the appropriate costs orders for the application for the stay.

Kent J granted the stay of the final orders, subject to the Applicant Mother filing and serving an application for an expedited hearing within seven days. The stay was predicated on the reasonable prospect that the appeal could be heard during the Full Court sittings commencing on 3 August 2015. Costs of the application for the stay were reserved, meaning they would be determined at a later stage.

Orders

Orders of the court

it is ordered until further order that:

Subject to the satisfaction of the condition in paragraph 2 of these orders, the final orders made by the Honourable Justice Murphy on 23 February 2015 are stayed until the hearing of the Applicant Mother’s appeal by the Full Court.

Within seven (7) days of today’s date the Applicant Mother is to file and serve an application in the appeal seeking an expedited hearing of the appeal.

it is ordered that:

Each party’s costs of and incidental to the Applicant Mother’s Application in a

Case filed on 13 April 2015 be reserved.

notation:

This stay of the orders made on 23 February 2015 has been granted on the basis of there being a reasonable prospect of the appeal receiving expedition such that it can be heard in the sittings of the Full Court commencing on 3 August 2015.

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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