Calpin & Leigh (No 2)

Case •

[2023] FedCFamC1F 995

•

1 November 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Calpin & Leigh (No 2) [2023] FedCFamC1F 995

File number(s): MLC 9080 of 2020
Judgment of: BENNETT J
Date of judgment: 1 November 2023
Catchwords:  FAMILY LAW – STAY PENDING APPEAL – where stay granted conditional upon applicant father prosecuting his appeal diligently
Legislation:  1980 Convention on the Civil Aspects of International Child Abduction
Cases cited:

Clemett & Clemett (1981) FLC 91-013

Sheldon & Weir [2011] FamCAFC 5

Trahn & Long (No. 2) [2008] FamCAFC 194
Division: Division 1 First Instance
Number of paragraphs: 24
Date of hearing: 1 November 2023 
Place: Melbourne via MS Teams
Solicitor for the Applicant: Ms Bramham, Bramham Lawyers
Counsel for the Respondent: Ms Mallett KC
Solicitor for the Respondent: Teak Legal & Consulting Pty Ltd
Solicitor for the Independent Children's Lawyer: Ms Dinning, Dinning & Co (as a friend of the Court)

ORDERS

MLC 9080 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR LEIGH

Applicant
AND:

MS CALPIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

1 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born 2020 be independently represented by a lawyer on this day AND IT IS REQUESTED that Victoria Legal Aid arrange such representation AND IT IS FURTHER REQUESTED that Victoria Legal Aid give consideration to funding the attendance of Ms Dinning at Court this day as she appeared and represented the child’s interests.

2.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

3.Subject to paragraph 4 of this Order, I stay paragraph 8 (relocation) of the Order made on 6 September 2023 pending determination of the father’s Notice of Appeal.

4.The mother be at liberty to make an application for the stay to be dissolved in the event that it is alleged that the father fails or neglects to prosecute his appeal diligently.

5.My reasons for decision this day be transcribed and, when settled, be placed on the Court file.

6.Otherwise, the Application in a Proceeding of the father filed 16 October 2023 and the mother’s Response thereto be and is hereby dismissed.

AND IT IS NOTED that the appeal is allocated a hearing in the week of 5 December 2023.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
EX TEMPORE

BENNETT J:

  1. The father seeks a stay pending appeal of the Order I made on 6 September 2023 which, inter alia, permitted the mother to relocate the residence of the parties’ child, X born 2020, to Country B on 30 days’ notice to the father and the independent children’s lawyer. The father’s Notice of Appeal was filed on  3 October 2023.

  2. The mother opposes the stay and wants to leave Australia in late 2023. The mother says that she will accompany X to back Australia in the event that the appeal is successful and/or the relocation Order is set aside. The mother says that she will leave an unquantified sum of money as security for her return which could, presumably, be accessed by the father to pay for X’s return trip in the event that the mother does not keep her word.

  3. Ms Bramham, solicitor, appears from the father. Ms Mallett KC appears for the mother. Ms Dinning is the former Independent Children’s Lawyer whose appointment was automatically terminated when the proceedings at first instance concluded. She appears today to assist the Court. I will request that she be reappointed on the stay. Ms Dinning will not appear on the appeal unless the Full Court request her re-appointment. The Independent Children’s lawyer played a significant and constructive role in the proceedings at first instance.

  4. Having read the affidavit material relied upon by the parents and having heard oral submissions, I have decided to stay the operation of the Order pursuant to which the mother can take X to live in Country B on 30 days’ notice on condition that the father prosecutes his appeal diligently. So, if he does not put in his appeal books, if he does not put in his summary of argument, she can bring it back and apply to have the stay dissolved.  There is no reason to stay the other Orders under appeal and my understanding is that the father does not seek to do so. I said that I would deliver my reasons subsequently. These are those reasons.

  5. On 12 September 2023, the mother gave the father notice that she proposed to leave Australia with X in late 2023. The mother thereby afforded the father more than twice the amount of notice that she was required to give. The father did not file his appeal until three or so weeks later at which time he did not seek a stay of the Orders under appeal.  In Court, I speculated that the father may not have realised that the Notice of Appeal did not automatically stay Orders under appeal. However, I was informed by his representative that the father had received advice to that effect from the inception of the appeal and that he merely chose not to apply for a stay to prevent X’s departure from Australia until 16 October 2023. In the meantime, the mother had arranged for the maternal grandmother to come to Australia to assist her with packing and, presumably, to accompany the mother and X on the journey to Country B in late 2023. The father waited 30 or so days before making his stay application.

  6. There are a few other facts which are relevant.

  7. The Order under appeal allowed the father to avail himself and X of expanded time together prior to X leaving Australia for Country B subject to supervision. The father has not availed himself of extra time. He says that he cannot afford to do so.

  8. Relevantly, it should be noted that, at first instance the father did not object to the mother taking X to Country B for holidays.

  9. The parties acknowledge that the 1980 Convention on the Civil Aspects of International Child Abduction (“1980 Abduction Convention”) is in force between Country B and Australia.

  10. Finally, whereas in many jurisdictions an appeal presages long delay, the father’s appeal is listed for hearing before the Full Court in early December 2023. Accordingly, the appeal is going to be heard in very short compass. I cannot say when the Full Court’s decision will be handed down.

  11. The considerations on a stay application in a case such as this are not controversial. In the early case of Clemett and Clemett (1981) FLC 91-013, which was an appeal against a custody Order which reversed a significant status quo in favour of the father, the Full Court stated [page 2]:

    In determining whether a stay should be granted the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father.

  12. In Sheldon & Weir (stay application) [2011] Fam CAFC 5 the Full Court, comprising Bryant CJ, Finn and Ainslie-Wallace JJ., cited with approval the earlier Full Court decision of Warnick, Boland and Dessau JJ in Trahn & Long (No. 2) [2008] FamCAFC 1941 in which it was stated [38] as follows:

    These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [1986] HCA 13; (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681; Clemett and Clemett [1980] FamCA 90; (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 included 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 “special” or “exceptional” circumstances;

    •a person who has obtained a judgment is entitled to the benefit of that judgment;

    •the person who has obtained a judgment is entitled to presume the judgment is correct;

    •the mere filing of an appeal is insufficient to ground 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 the 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 a stay for a short period of time; and

    •the best interests of the child the subject of the proceedings.

  13. Ms Mallett KC for the mother submitted that the appeal, as articulated in the father’s Notice of Appeal are weak. In my view, the father’s appeal against my decision does not appear to be a particularly strong appeal.  But I cannot say it is an appeal that cannot be argued or that is wholly without merit.

  14. I take into account as a relevant factor that the mother is entitled to presume that my judgment is correct and to have the benefit of the decision. In this regard she gave notice promptly (12 September) that X would leave Australia in late 2023

  15. The application for a stay was filed outside the appeal period and the mother is particularly aggrieved that the maternal grandmother’s trip to Australia to assist in X’s move to Country B will going to be of little utility, if not wasted, if the mother and X cannot fly out in late 2023. It is implicit that the maternal grandmother may not have come out to Australia when she did had the father let it be known that a stay would be sought. However, there is no necessity that an application be filed contemporaneously with the Notice of Appeal or within the appeal period.  The date at which the stay is sought goes to the balance of convenience.

  16. I do not accept that the timing of the stay application necessarily goes to the father’s bona fides. It may not be conducive to the parents’ having a cooperative relationship into the future but it does not inform the exercise of my discretion on the issue of a stay in a negative sense.

  17. The mother did not book any flights for herself and X from Australia on the planned departure date. It is submitted on behalf of the mother that airfares will increase significantly in December 2023. I acknowledge fares will increase in the short-term because of the festive season.  In the event that the mother looks to a departure sometime in early 2024, after giving another period of 30 days’ notice – for relocation or a holiday – and presuming the Full Court may have delivered its decision on the appeal then airfares may have fallen in price by that stage.  This goes to the relative balance of convenience and the terms of a stay which are fair to all parties. This is not the case (as was first thought) where the mother had purchased tickets and would lose the cost of them.

  18. I accept that the father has not availed himself of extra time with X which was provided for in the Orders he now appeals. Through Counsel, the father says that he has not been able to afford the extra costs of supervision.  I accept the submission of Counsel for the mother that the father has failed or neglected to put evidence of his financial situation before the court and that his disclosure in this regard was similarly lacking in the trail before me.

  19. I acknowledge, as submitted by Counsel for the mother, that the mother will find the appeal process to be stressful and may well be comforted by her family if there was a family member who could be with her here.  It appears that there won’t be a family member here with her. However, in assessing the appeal, the mother will reasonably be told that it will not be another 10 days in Court, or five days in Court. It will probably be less than a day in Court. 

  20. I consider whether the appeal would be rendered nugatory if a stay were not granted.  That is not the case here. If the mother went to Country B but did not return, one would contemplate that any refusal by the mother to return as ordered would constitute a wrongful refusal in the terms of the 1980 Abduction Convention, and that the child would be brought back in repatriated to Australia in due course.

  21. There was discussion in relation to a security bond, and no particular figure was forthcoming.  Had I been inclined to not stay the Order, a security bond is a matter that I would certainly have considered, I would have ordered it in something like the sum of three and a half thousand dollars, which appeared to be the upper end of air fares applicable for return.

  22. I take into account, in terms of the child’s best interests, that a return to Country B would benefit the mother in the short-term and that benefit to the mother and her emotional support constitutes a benefit for the child, and that any appeal does represent a period of limbo for the mother.  It represents a period of limbo for both parties, and I am afraid that just happens to be the nature of the legal system we have, that a decision is not considered to be absolute.  It is subject to a right of appeal, and the father has exercised his right in accordance with the timetable, for which the legislation provides.  However, in the event that the father fails or neglects to diligently prosecute his appeal, the mother should not be delayed any further in Australia.  This is not an invitation for her to make any further arrangements to leave Australia, but there are certain things that the father will have to do to make his appeal ready.  And if he fails to do that, I would anticipate the mother applying for the stay to be dissolved.

  23. In looking at the best interests of the child and the balance of convenience, I am inclined to the view that there should be just one move to Country B and no false starts.  If X is to leave Australia it should be on the basis that everyone knows whether X and the mother are leaving for a holiday or leaving to relocate. Any departure, should await the outcome of the appeal which, I note, is listed for hearing in five or so weeks.

  24. I am satisfied that, at this point in time, it is in X’s best interest to have the appeal conclude before he leaves Australia. I regard as very significant the fact that the appeal will be argued in little over a month. If the appeal is postponed, particularly by an act or omission of the father or those he instructs, the mother has liberty to apply to dissolve the stay.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       1 November 2023

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