Walter and Walter - [2012] FMCAfam 762

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…

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 Walter and Walter

Details

AGLC: Walter and Walter [2012] FMCAfam 762
Case: [2012] FMCAfam 762
Decision Date: 27 July 2012

CaseChat Overview and Summary

The case of Walter and Walter involved a dispute between the husband and wife over various matters related to their children. The matter was heard by Federal Magistrate Burchardt, who made several orders regarding the children and the parties' financial obligations. The wife filed an application for a stay of certain orders made on 21 June 2012, which was dismissed by the court, with the exception of orders made by consent. The court also ordered the wife to pay the husband's costs of the stay application and granted a costs certificate to each party in relation to the costs of their appearance before the court on 17 July 2012.

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

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:

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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