FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALTER & WALTER | [2012] FMCAfam 762 |
| FAMILY LAW – Application for stay pending appeal – appeal to the Full Court – final parenting orders – general principles considered – stay refused. |
| Family Law Act 1975 (Cth), s.117 |
| Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106 Clemett and Clemett (1981) FLC 91-013 EJK v TSL (No.2) [2006] FamCA 806 House v R (1936) 55 CLR 499 |
| Applicant: | MS WALTER |
| Respondent: | MR WALTER |
| File Number: | MLC 6449 of 2010 |
| Judgment of: | Hartnett FM |
| Hearing date: | 26 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson |
| Solicitors for the Applicant: | Carew Counsel |
| Counsel for the Respondent: | Mr Weil |
| Solicitors for the Respondent: | Kennedy Partners |
THE COURT ORDERS BY CONSENT THAT:
Paragraphs 17 and 18 of the Orders made by Federal Magistrate Hartnett on 6 June 2012 be stayed pending determination of the Appeal Number SOA 45 of 2012 filed 14 June 2012.
THE COURT ORDERS THAT:
The Application for Stay filed 21 June 2012 is dismissed save for Orders made by consent this day.
The Wife pay the Husband’s costs of the stay application.
A costs certificate be granted to each of the Husband and the Wife pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of and incidental to the parties appearance before Federal Magistrate Burchardt on 17 July 2012.
IT IS REQUESTED THAT:
The Independent Children’s Lawyer forthwith and no later than 5.00pm on 27 July 2012 explain the orders made on 6 June 2012 to the children X born (omitted) 2000, Y born (omitted) 2002 and Z born (omitted) 2004in accordance with order 15 of those orders.
AND THE COURT NOTES BY CONSENT THAT:
The parties have agreed that the fortnightly cycle in the Orders made 6 June 2012 will commence this day with this week being what is described in Order 4(a)(i) as “Week 1” and further that the Wife will collect the children from the Husband’s residence today at 6.00pm and spend time with them until commencement of school on Monday.
IT IS NOTED that publication of this judgment under the pseudonym Walter & Walter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6449 of 2010
| MS WALTER |
Applicant
And
| MR WALTER |
Respondent
REASONS FOR JUDGMENT
The applicant appellant wife seeks, in application filed 21 June 2012, orders:
“1. That paragraphs 3, 4a, 10, 17 and 18 of the orders made by Federal Magistrate Hartnett on 6 June 2012 be stayed pending determination of the Appeal No. SOA 45 of 2012 filed 14 June 2012.
2. Such further or other orders as this Honourable Court deems fit.”
In support of that application the applicant wife relies upon affidavits sworn by her on 19 June 2012 and 17 July 2012. On the hearing of the matter, her Counsel also filed on her behalf an outline of submissions. There…
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- AGLC
- Walter and Walter [2012] FMCAfam 762
- Case
- [2012] FMCAfam 762
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the wife's application for a stay of certain orders should be granted, and whether the costs of the stay application should be awarded to the husband. The court considered the relevant law and the evidence presented by both parties before making its decision. The wife argued that the orders made on 6 June 2012 were not in the best interests of the children, while the husband maintained that the orders should be upheld. The court also considered the parties' financial circumstances in determining the costs orders.
In its decision, the court found that the wife's application for a stay of the orders made on 6 June 2012 should be dismissed, with the exception of orders made by consent. The court held that the orders were in the best interests of the children and should be upheld. The court also found that the husband was entitled to be awarded the costs of the stay application. The court further ordered that the Independent Children's Lawyer explain the orders made on 6 June 2012 to the children, and that the parties had agreed to commence the fortnightly cycle in those orders from that day. Overall, the court's decision was based on a careful consideration of the evidence and the relevant law.
Orders
Orders of the court
2.
The Application for Stay filed 21 June 2012 is dismissed save for Orders made by consent this day.
3.
The Wife pay the Husband’s costs of the stay application.
4.
A costs certificate be granted to each of the Husband and the Wife pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of and incidental to the parties appearance before Federal Magistrate Burchardt on 17 July 2012.
IT IS REQUESTED THAT:
5.
The Independent Children’s Lawyer forthwith and no later than 5.00pm on 27 July 2012 explain the orders made on 6 June 2012 to the children X born (omitted) 2000, Y born (omitted) 2002 and Z born (omitted) 2004in accordance with order 15 of those orders.
AND THE COURT NOTES BY CONSENT THAT:
The parties have agreed that the fortnightly cycle in the Orders made 6 June 2012 will commence this day with this week being what is described in Order 4(a)(i) as “Week 1” and further that the Wife will collect the children from the Husband’s residence today at 6.00pm and spend time with them until commencement of school on Monday.
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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