Acquaah-Akuffo & Abioye (No 2)

[2016] FamCA 582

FAMILY COURT OF AUSTRALIA

ACQUAAH-AKUFFO & ABIOYE (NO 2) [2016] FamCA 582

FAMILY LAW – ORDERS – stay
FAMILY LAW – CHILD – relocation

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Jackson & Balen [2009] FamCAFC 131
Trahn & Long (No 2) [2008] FamCAFC 194

APPLICANT: Mr Acquaah-Akuffo

RESPONDENT: Ms Abioye

FILE NUMBER: PAC 1193 of 2016

DATE DELIVERED: 29 June 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Gill J

HEARING DATE: 29 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moutasallem

SOLICITOR FOR THE APPLICANT:	BTF Lawyers
SOLICITOR FOR THE RESPONDENT:	Mr Levy, Legal Aid NSW Sydney Central Family Law

Orders until further order

1. Orders 1 to 7 of the Orders of this Court made on 22 June 2016 are stayed pending further order, on the following conditions, with such stay to lapse on non-compliance with these conditions:

   a.The father is to seek an urgent hearing of the appeal at the earliest possible date before the Full Court.

   b.The father is to comply with all directions given in respect of the preparation of that appeal including the filing and preparation of any documents.

   Notation

   A.If the father does not comply with procedural directions in relation to the timely hearing of the appeal the stay will lapse.

   c.The father is to make arrangements for the child to continue to have time with his mother via electronic devices while she is in Africa and he is in Australia, at all reasonable times as may be sought by the mother, including the facilitation of Skype time.

2. I grant the parties leave to relist the interim arrangements for the mother to spend time with the child while the stay is in force before me on 48 hours’ notice.

   Notation

   B.The facilitation of the mother’s travel to Australia was a matter specifically advanced as being a potential term of the stay.  If it turns out not to be available it impacts upon issues of the balance of convenience between the parties and the welfare of the child pending the appeal and leaves open the consideration of the stay. 

3. The matter is otherwise adjourned to 12 August 2016 for further directions on the primary matter.

4. The parties may appear via telephone on that day but ought provide the Registry with seven days’ notice advising of their intention to do so, so the appropriate arrangements can be made.

5. Leave is granted to the parties generally to relist the matter on 48 hours’ notice, in particular, that leave is granted in the event of non-compliance with any of the terms of the stay.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Acquaah-Akuffo & Abioye (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 CANBERRA

FILE NUMBER: PAC1193/2016

Mr Acquaah-Akuffo

Applicant

And

Ms Abioye

Respondent

REASONS FOR JUDGMENT

1. This matter is the application for a stay pending appeal in Acquaah-Akuffo v Abioye.

2. A Notice of Appeal has been filed on the part of the Applicant father in relation to a decision compelling him to return his son, B, to Africa following a hearing on 3 June 2016 with a decision handed down on 22 June 2016 compelling him to return the child within seven days of the making of the orders.

3. An application for stay was lodged at the Family Court yesterday and a filed Notice of Appeal is before the Court today.

4. The application for a stay is supported by an affidavit affirmed by the solicitor for the father, Ms Bilbe-Taylor, dated 28 June 2016.  The material on affidavit simply relates to the process of the lodging and filing of the appeal and annexed is the Notice of Appeal containing grounds.  For the Applicant it is said that I should apply principles that have been set out in two cases, the first being Jackson & Balen [2009] FamCAFC 131 and the case of Trahn & Long (No 2) [2008] FamCAFC 194, the more complete set of principles is set out in the case of Trahn incorporating the best interests of the child subject to the proceedings.  The solicitor for the mother accepts that Trahn properly represents the law to be applied in a stay. I apply the factors as set out at paragraph 28 of that judgment. The first is that there is an onus on the applicant to establish a proper basis for the stay, although it is not necessary to demonstrate special or exceptional circumstances. The second principle is that a person who has obtained a judgment is entitled to the benefit of that judgment and is entitled to presume that the judgment is correct. The next principle is that the mere filing of an appeal is insufficient to ground a stay. The Applicant accepts that the father bears the onus to establish a stay and asserts that the application for an appeal is made on a bona fide basis, that is, that it is not merely a time wasting exercise.

5. The Applicant has identified a number of grounds to found the appeal, some of which appear to be an attack on discretionary determinations and weighting such as may fall foul of the principle set out in House v The King (1936) 55 CLR 499, but also identifies matters which are said to be connected to a denial of procedural fairness, in particular, failing to ensure that the parties were aware of the nature of the proceedings and that a denial of procedural fairness flowed from the failure to appoint an Independent Children’s Lawyer.

6. At the stage the matter is argued before me there is no transcript available to identify the parties’ awareness or otherwise of the nature of the proceedings, although Mr Levy has indicated that when the parties identified the orders that they sought, each identified matters which went beyond the mere application for summary dismissal.

7. Further grounds assert error in the failure to appoint an Independent Children’s Lawyer or provide for some other mechanism for the child’s views to be placed before the Court.

8. At this stage I am unable to assess the grounds of appeal as being strong but do not firmly come to such a conclusion given the absence of transcript.  I note that in relation to the first ground, it is correctly pointed out that when the matter was first listed it was listed for the hearing of the summary dismissal.  The validity of that first appeal ground will depend very much upon what is disclosed in the transcript of the proceedings in relation to the character of the case that was to be heard.  Given that the matter was initially listed simply for dismissal of summary hearing, I am not prepared to say that the appeal has no merits whatsoever at this state.  That analysis deals with both the question of the bona fides of the Applicant and some preliminary assessment of the strength of the proposed appeal, that is, whether it was an arguable case.

9. Although I have reservations as to the grounds as expressed the strongest matter brought forward for the Applicant is the weighing of the risk that the appeal may be rendered nugatory.  It remains a risk that if the child is returned to Africa that the mother may not participate any further in the proceedings.  This was a risk which was considered in the judgment that is under appeal and remains a risk such that it has the potential to render an appeal nugatory if a stay is not granted.  This is a strong factor that supports the granting of a stay.

10. A further factor that was dealt with was the question of the desirability of limiting the frequency of any change in a child’s living arrangements.  If a stay is not granted and the child returns to Africa, he may remain there permanently or may remain there until a further interim order might be made or a final determination which sees him living back in Australia rather than Africa.  If a stay is granted then absent any further order it appears that he will remain here until the appeal is determined or until his mother is successful at a final hearing (if that be the case).

11. The potential of limitation of frequency hinges upon the father’s ultimate success.  I am unable to assess the prospects of that but concede that the granting of a stay at this point may limit the frequency of any changes although it is not guaranteed to do so.

12. A further factor is the period of time in which an appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time

13. It has been indicated that the earliest point at which the appeal may be able to be heard is the week of 29 August 2016.  That is approximately two months from today.  While that is a considerable delay in some respects, it equates to a rapid hearing of the matter and in circumstances where the child has been away from his mother for a period of 10 months it is not so substantial as to be telling against the granting of a stay, provided certain matters are dealt with to ensure that the matter is dealt with expeditiously.  I will return to these matters.

14. The final matter is the best interests of the child the subject to the proceedings.  I note that there are acceptable living arrangements in place for the child whether he is in Africa or in Australia.  This is not a case where there was a risk identified in relation to either of the parents other than the damage that might be done to their relationship with the child from him being absent by being in the other country.

15. I am satisfied that the child will be well cared for if he is to remain in Australia pending the appeal and will be well cared for if he is to return to Africa pending the appeal.  In relation to the best interests of the child, best interests must be considered in light of the s 60CC factors which I have set out in the primary judgment in this matter.  The further considerations that I have indicated are additional to those matters and are in relation to the period awaiting an appeal only.  A short delay in time before he returns to Africa, provided the appeal can be deal with expeditiously, is such that the balance that swings in respect of the consideration of his best interests to leave it as neutral as to whether he is to remain or return pending that hearing.

16. The matter of greater significance then on balance is the question of the appeal being rendered nugatory if a stay is not granted.  I consider that this is a significant risk and is such as to justify the granting of a stay on strict terms.  Accordingly, I grant a stay of the orders, the numbers of the orders will be identified and inserted in the judgment that deal with the prompt return of the child to Africa, such stay being granted on the following terms and such stay to lapse if the terms are not complied with:

    (1)The father is to seek an urgent hearing of the appeal at the earliest possible date before the Full Court.

    (2)The father is to comply with all directions given in respect of the preparation of that appeal including the filing and preparation of any documents.  If the father does not comply with procedural directions in relation to the timely hearing of the appeal the stay will lapse.

    (3)The father is to make arrangements for the child to continue to have time with his mother via electronic devices while she is in Africa and he is in Australia at all reasonable times as may be sought by the mother.  This includes facilitation of Skype time.

    (4)I note that the father has indicated through his legal representatives at the Bar Table that he is able to make arrangements to support the travel of the mother to Australia.  I do not know at this stage whether or not this is a workable proposition for the mother but note that the father has indicated that he is able to pay for her travel to Australia and her accommodation in Australia.

    (5)I grant the parties leave to relist the interim arrangements for the mother to spend time with the child while the stay is in force before me on 48 hours’ notice.

17. I note that the facilitation of the mother’s travel to Australia was a matter specifically advanced as being a potential term of the stay and that if it turns out not to be available it impacts upon issues of the balance of convenience between the parties and the welfare of the child pending the appeal and leaves open the consideration of the stay.  I note that the parties have been given leave to relist the matter on 48 hours’ notice, in particular, that leave is granted in the event of non-compliance with any of the terms of the stay.

18. The matter is, otherwise, adjourned to 12 August 2016 for further directions on the primary matter.

19. The parties may appear via telephone on that day but ought provide the Registry with seven days’ notice advising of their intention to do so, so the appropriate arrangements can be made.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 29 June 2016.

Associate: 

Date:  29 June 2016