CHADWICK & RECKARD (No.2)

[2020] FCCA 3084

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHADWICK & RECKARD (No.2) [2020] FCCA 3084

Catchwords:
FAMILY LAW – Parenting – stay application.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

House v The King [1936] HCA 40

Trahn & Long (No. 2) [2008] FamCAFC 194

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

Sheldon & Weir (Stay Application) [2011] FamCAFC 5

Applicant: MS CHADWICK

Respondent: MR RECKARD

File Number: CAC 1807 of 2020

Judgment of: Judge Dunkley

Hearing date: 28 October 2020

Date of Last Submission: 28 October 2020

Delivered at: Parramatta

Delivered on: 28 October 2020

REPRESENTATION

Solicitors for the Applicant: Mr Bertand of Sterling Law (Qld)

Solicitors for the Respondent: Mr Warren of Andrew Warren Associates

ORDERS

1. The Application in a Case filed on 22 October 2020 is dismissed.

2. Costs relevant to that application to be determined consequent upon the determination of the appeal.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 1807 of 2020

MS CHADWICK

Applicant

And

MR RECKARD

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. Ms Chadwick, whom I hereinafter refer to as the appellant and/or mother, and Mr Reckard, whom I hereinafter refer to as the respondent and/or father, are the parents of X, aged 16, who was born in 2004, and Y, aged 12, who was born in 2008.

2. On 8 October 2020, I delivered an interim parenting judgment and made interim parenting orders.

3. In general terms, those orders required that the mother return the children from Queensland to live in New South Wales nearby to Town B within 21 days of 8 October 2020.  If she did not do so, that the children live with the father until she herself, the mother, could move back, whereupon the children would live with the mother.

4. On 13 October 2020, the mother filed an appeal to the Family Court of Australia.

5. That appeal seeks to appeal orders 1, 4, 5, 6 and 18, made on 8 October 2020.  The notice of appeal articulates within it 10 grounds of appeal.

6. On 22 October 2020, the mother filed an application in a case seeking a stay.

7. In support of that application in a case she relies on an affidavit sworn 22 October 2020, and her legal representative made oral submissions on her behalf.

8. The father opposes the granting of a stay.

9. He has filed an affidavit affirmed 28 October 2020.  His legal representative made written submissions and provided some oral submissions.

10. Neither of the affidavits of the mother or the father advances the issues to be considered in deciding whether to stay the orders.

11. The granting of a stay is a discretionary decision.  The cases of Trahn & Long (No. 2), Aldridge & Keaton (Stay Appeal), and Sheldon & Weir (Stay Application), are but some of the many full court decisions relevant to the determination of stays.

12. One of the strongest grounds, but not the sole consideration, is that if a stay is not granted or denied, whether that fact would or will render a successful appeal nugatory.

13. In this case, for reasons later explained, I do not believe the denying of stay has this effect.  To grant the stay would likely have that impact with respect to the father’s relationship with the children, which I will again further explore for reasons later herein.

14. The respondent is entitled to the benefit of the judgment made on 8 October;  that is, that the children would be returned to live nearby to Town B so that they can spend time with him pursuant to those orders.  He is also entitled to presume the correctness of the judgment, in that, the pathway referred to in Goode & Goode was correctly applied in the terms of that judgment and that the outcome thereof, had as its paramount consideration, the best interests of X and Y, and that the orders were also reasonably practicable.

15. There can be no question about the bona fides of the appellant in either of the filing of her notice of appeal or the application in a case seeking the stay.

16. She has quickly lodged her appeal, well within time.  Soon thereafter, she filed the stay application, and prosecuted both diligently.

17. The appellant offered as a condition of a stay being granted that she would prosecute an application before the appeals division of the Family Court in an application in an appeal seeking expedition.

18. The weight to be given that, as part of the balancing exercise, is difficult as it is not possible to determine at this point the merits of the expedition application as and against other cases awaiting the attention of the Full Court.

19. If the stay is not granted, the mother would be expected to soon return with the children to live nearby to Town B.  It is then submitted that if her appeal succeeds, she would have considerable difficulty and expense in returning to Queensland, and might not be able to do so if the current COVID-19 restrictions applied without very considerable problems.

20. Whilst that is true, the current restrictions would not prohibit her and the children returning to Queensland, just make it more difficult.  As such, not granting the stay does not render nugatory her appeal.

21. If the stay is granted, it would likely render nugatory for the father, the benefit of the time with orders as they apply to X, given her age.

22. If the stay is granted and the appeal is not expedited, it might not be heard until late in the second half of 2021, although neither of the parties’ legal representatives have been able to ascertain when the hearing of the appeal would occur.

23. If the appeal did not occur until the second half of 2021, or late therein, X would then be aged 17, approaching 18, and the time left for the father to have a relationship with her whilst she was still a minor and a child will have evaporated.

24. In Y’s case, more than 12 months would have elapsed since the last time he spent time with his father, at the expense of their relationship.

25. It is not held that the mother’s appeal is unarguable.  A number of her grounds assert that there was an error in holding the best interests of the children were met if they resided in Town B area, on the basis that it was submitted that insufficient weight was given to the various aspects of the evidence that caused that finding.

26. The decision in House v The King is relevant on this aspect of the appeal, and makes that argument;  that is, the weighting argument or the insufficient weighting argument, harder to advance, but not impossible.

27. The second ground of the appeal challenges the hearing of the interim case at the time that it was heard on the basis that there was evidence of the father’s drug use and his undisputed failure to protect the eldest child, X, from illicit drug use, is the way that that ground is articulated.

28. That issue was again, dealt with as part of the interim judgment, and again, it is submitted that insufficient weight was attached to that argument.  The earlier observations relevant to the House v The King are relevant to this ground.

29. The third ground is that there was an error in concluding that the children’s views were not known.

30. That matter will fall to be determined on the evidence of the transcript, and on the evidence of the parties’ affidavits.

31. The fourth ground is that there was an error in holding that the mother could afford to relocate on the basis that she did so in 2007.  Again, that is a matter of weight, and the earlier observations apply to that ground.

32. The fifth ground and the sixth ground relate to definitions of COVID-19 hotspots.  Those grounds assert that improper consideration was given to the Queensland declaration that all of New South Wales is a COVID‑19 hotspot, and that fact was given insufficient weight in consideration of the children’s best interests.  Those grounds are best met with the observation that neither the New South Wales government, nor the Commonwealth government, shares a view that the area surrounding Town B, is on their definitions, a COVID-19 hotspot. 

33. That then highlights the divergent and perhaps political nature of the definition of what it means to be a hotspot, and any health advice that underpins that and causes me to conclude that those two grounds are potentially the weakest two grounds of the appeal as they are not central to the welfare, nor best interests of the children, X and Y, given the political nature of the definition.

34. The remaining grounds challenge the findings underpinning the requirement to move the children’s location back to the Town B area.  There was an oral submission made on behalf of the mother that the interim hearing should have been adjourned until the views of the children were obtained.  That application was never made during the course of the interim hearing.

35. If the stay is not granted and the mother returns to near Town B, there will have then been a move by the children from Town B to Queensland, and from Queensland back to Town B, in a short period;  that is, there would have been two changes in the place where they lived.  As each of Y and X are home schooled, there is not so much disruption to them as a result of those changes in place of living.

36. For reasons set out in the interim judgment, I remain satisfied at this point of time that the best interests of the children are served by living with the mother in New South Wales nearby to Town B and spending time with their father.  Nothing has changed in that regard.

37. Having considered all the above, and on balance, I determine that the application for the stay is to be dismissed, and I so order.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  12 November 2020