Angeli & Farina (No2)
[2021] FedCFamC1F 306
•15 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Angeli & Farina (No2) [2021] FedCFamC1F 306
File number(s): SYC 5377 of 2019 Judgment of: REES J Date of judgment: 15 December 2021 Catchwords: FAMILY LAW – PARENTING – STAY – Where orders were made permitting the mother to relocate with the child to the United States of America – Where the father seeks a stay of the orders pending determination of the appeal – Desirability to limit the frequency of change in the child’s living arrangements – Application for a stay of orders granted. Legislation: Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) r 13.12 Cases cited: Aldridge & Keaton [2009] FamCAFC 106 Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 14 December 2021 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Broun Abrahams Burreket Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Lander & Rogers Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 5377 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ANGELI
Applicant
AND: MS FARINA
Respondent
LEGAL AID NSW
Independent Children's Lawyer
ORDER MADE BY:
REES J
DATE OF ORDER:
15 DECEMBER 2021
THE COURT ORDERS:
1.
That the operation of orders 11, 12, 19 to 27 (inclusive), 30, 33 to 37 (inclusive),
39 and 40 made on 9 December 2021, be stayed pending the determination of the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Angeli & Farina has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
On 9 December 2021, Altobelli J delivered reasons and made orders permitting a child to live with the mother in the United States of America and for the relocation to occur no earlier than 1 January 2022.
The father now seeks a stay of the operation of those orders, pending the determination of the appeal. The father has filed the Notice of Appeal and has also filed an application seeking expedition of the appeal.
The application is opposed by the mother but supported by the Independent Children’s Lawyer (“ICL”).
Whilst r 13.12 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) provides that an application for a stay should be dealt with by the judge who heard the substantive proceedings, “unless that judicial officer is unavailable”, the trial judge is presently on leave and therefore unavailable.
The principles governing an application for a stay pending appeal are well known and set out in the decision of the Full Court in Aldridge & Keaton [2009] FamCAFC 106 in the following terms:
18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child's living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
In circumstances where neither the trial judge nor either of the senior counsel who appeared at trial is available, and there has been no opportunity for the father to obtain a transcript, it is not possible to make any assessment of the strength of the proposed appeal. However,
senior counsel for the mother concedes that the appeal is arguable.
I am confident, as a result of my own enquiries, that the appeal will be heard with expedition.
I accept that there is no inflexible presumption in favour of maintaining the status quo pending appeal in parenting matters but I am unable, on the very limited evidence before me, not having been the trial judge, to conclude that the arrangements that were in place for this child were unsatisfactory. The consequence of staying the operation of the orders as sought by the father is that the orders made on 20 January 2020 and 18 December 2020 will operate. Those orders provide that the child spends time with the father on alternate weekends, alternate Thursdays after school until Friday morning and half of each school holiday period.
Senior counsel for the father submitted that those orders had worked well and provided for the child to spend time with both his parents. Neither senior counsel for the mother nor the ICL disputed that proposition.
In the present instance, it is the last of the factors which is persuasive. The father deposed:
12.I am concerned that if [the child] relocates to the United States and my appeal is successful then this will cause further disruption to [the chid] as follows:
a.[The child] would have commenced in a new school with a new curriculum on or around 5 January 2022, only to potentially have to leave that school if orders following an appeal are made for him to remain in Australia; and
b.[The child] will experience two sets of change, first in moving to the United States and not seeing me with [sic] as he currently does, and secondly moving back to Australia and not seeing his mother as he currently does.
The child has lived in Australia since 2019. He is doing well at school according to his most recent report and has friends and sporting activities. He spends time with both of his parents.
He is settled.
If that settled state is to be disrupted, it should be done so only after it is clear that there will be no further changes in store for him.
Orders 11, 12, and 19 to 27, those permitting relocation, will be stayed.
Senior counsel for the mother submitted that there is no basis to stay the operation of orders
30 to 40 as sought by the father.
I accept that there is no basis to stay orders 31 and 32 which relate to school and extracurricular activities. I also accept that there is no basis to stay order 38 which relates to the child’s having a current passport.
Orders 30, 33 to 37, 39 and 40 relate to time the child spends with the father when the child is resident in the United States of America and they will also be stayed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 15 December 2021
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