BECKFORD & BECKFORD (No.2) - [2020] FCCA 2775

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKFORD & BECKFORD (No.2)

[2020] FCCA 2775

Catchwords:
FAMILY LAW – Application for a stay pending appeal from interim parenting orders – whether appeal will be rendered nugatory – whether the applicant has a arguable ground of appeal – desirability of limiting the frequency of any change in a child’s living arrangements – no evidence as to when the appeal can be heard – whether satisfactory arrangements can be implemented pending the appeal – best interests of the children – application for stay of orders refused.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2)(a), 69ZL

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Chapa & Chapa [2013] FamCAFC 52

Charisteas & Charisteas and Ors [2020] FamCAFC 162

Gronow v Gronow [1979] HCA 63

Johnson v Johnson [2000] HCA 48

Mallett v Mallett [1984] HCA 21

Norbis v Norbis [1986] HCA 17

Applicant:

MS BECKFORD

Respondent:

MR BECKFORD

File Number:

MLC 8078 of 2020

Judgment of:

Judge Carter

Hearing date:

30 September 2020

Date of Last Submission:

30 September 2020

Delivered at:

Melbourne

Delivered on:

8 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Tesoriero

Solicitors for the Applicant:

Nicholes Family Lawyers

Counsel for the Respondent:

Ms Hutchings

Solicitors for the Respondent:	Women's Legal Service Victoria
Counsel for the Independent Children's Lawyer:	Ms Agresta
Solicitors for the Independent Children's Lawyer:	Altavilla Family Law

ORDERS

The Application in a Case filed by the Father on 18 September 2020 seeking a stay of orders 3, 4, 5 and 6 of the orders made on 21 August 2020 is dismissed.
The mention listed on 4 November 2020 be and is hereby vacated.
The proceedings are adjourned to 20 November 2020 at 10.00am for interim defended hearing before her Honour Judge Stewart.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Beckford & Beckford (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8078 of 2020

MS BECKFORD

Applicant

And

MR BECKFORD

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in this matter have three children, X, aged 14, Y, aged 10 and Z aged 6. Final orders were made in this matter regarding the care of the children…

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.

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Details

Case: [2020] FCCA 2775
Decision Date: 8 October 2020

CaseChat Overview and Summary

In *Beckford & Beckford (No.2)*, the father applied to Judge Carter of the Federal Circuit Court of Australia for a stay of interim parenting orders made on 21 August 2020, pending an appeal. The father sought to stay orders concerning the children's living arrangements.

The central legal issues before the court were whether the appeal would be rendered nugatory if the stay was not granted, whether the father had an arguable ground of appeal, and the desirability of limiting changes to the children's living arrangements. The court also considered whether satisfactory arrangements could be implemented pending the appeal, all within the overarching consideration of the best interests of the children.

Judge Carter reasoned that the application for a stay should be refused. The court found that there was no evidence presented regarding when the appeal could be heard, which was a critical factor in assessing the risk of the appeal being rendered nugatory. Furthermore, the court considered the principle that frequent changes to a child's living arrangements are generally undesirable, and that the best interests of the children were paramount.

Consequently, the court dismissed the father's application for a stay of the interim parenting orders. The mention listed for 4 November 2020 was vacated, and the proceedings were adjourned for an interim defended hearing on 20 November 2020. The court also made notes regarding the application of section 102NA of the *Family Law Act 1975* concerning family violence and unrepresented parties.

Orders

Orders of the court

The Application in a Case filed by the Father on 18 September 2020 seeking a stay of orders 3, 4, 5 and 6 of the orders made on 21 August 2020 is dismissed.

The mention listed on 4 November 2020 be and is hereby vacated.

The proceedings are adjourned to 20 November 2020 at 10.00am for interim defended hearing before her Honour Judge Stewart.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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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