Edinger & Duy (No 3)
[2023] FedCFamC1F 570
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Edinger & Duy (No 3) [2023] FedCFamC1F 570
File number(s): PAC 4543 of 2020 Judgment of: ALTOBELLI J Date of judgment: 30 June 2023 Catchwords: FAMILY LAW – STAY PROCEEDINGS – Final orders made for child to spend no time with the father and allowing the mother to travel to Country D with the child – Where the father has filed a Notice of Appeal – Where the mother has already gone to Country D with the child and has no return date at this stage – Where it is argued the father’s appeal will be rendered nugatory if orders are not made – Where previous order for time with the father is reinstated as it causes the mother no prejudice. Legislation: Hague Convention on the Civil Aspects of International Child Abduction Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 30 June 2023 Place: Sydney Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Solicitor for the Respondent: Robertson Saxton Osborne Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 45543 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EDINGER
Applicant
AND: MS DUY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
30 JUNE 2023
THE COURT ORDERS THAT:
1.Orders 3, 7 and 8 made by the Honourable Justice Hannam on 2 June 2023 be stayed.
2.Should the Respondent mother return to Australia with or without the child, she is to cause the child’s Australian passport and/or any other passport that he might have to be surrendered to the Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Parramatta within 24 hours’ of her arrival in Australia.
3.Leave is granted to the parties to apply to relist the proceedings on 24 hours’ notice should the Respondent mother return to Australia and in the event that further orders or directions are required.
Airport Watchlist Order
4.Until further Order the Applicant and Respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children, X (DOB: 2015, Male), from the Commonwealth of Australia.
5.The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
6.Until further Order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia.
7.The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
8.The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these Orders.
THE COURT NOTES THAT:
A.The effect of Order 1 of these orders is that Order 2 made on 4 February 2021 for the father to spend time with the child will continue to apply pending further order of this Court. Order 2 made on 4 February 2021 is reproduced below:
2. The child shall spend time with the father as follows:
(a)From after school or 3pm Friday until before school or 9am Monday each alternate weekend commencing 5 February 2021;
(b)From after school or 3pm Wednesday until before school or 9am Thursday each alternate week to commence 10 February 2021; and
(c)From after school on the last day of the school term of the first, term school holidays to 10:00am on the second Saturday.
(d) At any such other time as agreed between the parties in writing.
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 Edinger & Duy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
The matter before me relates to a child, X, who is eight years old. His father, who is 47 years old, is the applicant (“the father”). His mother, who is 45 years old, is the respondent (“the mother”). Justice Hannam heard this matter and made final orders on 2 June 2023, the effect of which is that the mother have sole parental responsibility, X live with her and spend no time or have any communication with the father. The father was also required to surrender X’s passport to the Parramatta registry and do a number of other matters.
Importantly, the Court granted the mother liberty to remove X from the Commonwealth of Australia for the purposes of taking a holiday and a number of ancillary orders were made to permit that travel. Those orders were made on 2 June 2023. About two weeks later, the mother and X departed Australia for Country D and the mother remains in Country D with X. By way of a letter from the mother’s solicitor dated 28 June 2021, she advised the father’s lawyers about this and, significantly, says in the letter:
Our client has no return date at this stage.
It is important to note that the order made by her Honour allowed travel for the purposes of a holiday. It was not an open-ended invitation or permission to relocate. In any event, the father filed a Notice of Appeal on 16 June 2023 which is a few days before the mother left for Country D with X. On 20 June, the father filed the present Application in a Proceeding seeking a stay of the operative orders made by her Honour together with an Airport Watchlist order.
The Application in a Proceeding was amended yesterday, on 29 June at 3.41 pm, to seek orders which would not only stay the parenting orders, but cause to be identified on a Court document the fact that the pre-existing order made on 4 February 2021 for X to spend time with the father is reinstated. The matter comes before me in that factual context.
The father this morning was represented by his counsel, Mr Givney. The mother was represented by her solicitor, Ms Frost, who has limited instructions but was nonetheless able to assist the Court and make such submissions as could reasonably be made on her behalf in the circumstances. X was represented by the Independent Children's Lawyer, Ms Wilkins.
The principles for granting a stay pending an appeal are relevantly well known. For example, [17]–[18] in the Full Court’s decision in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 contains a very useful and concise statement of the relevant law. For all practical purposes, the focus of today’s proceeding is on the issue of whether the father’s appeal will be rendered nugatory if the orders are not made. Mr Givney, on behalf of the father, submitted quite strongly that they would be, even in the circumstances of the mother having departed Australia for Country D for an unknown period of time.
His submission to the Court is that in circumstances where Country D is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, a matter which I accept as a matter of law, the remedies available to the father are limited. But, whether that be representation through governmental authorities or whether that be the commencement of proceedings in Country D, the father would be assisted by having an order that in effect provides him with the benefit of time with X, which, in other legal contexts, could be interpreted as rights. Without this, it strikes me that the father’s appeal would be rendered completely nugatory.
It may well be that the horse has bolted anyway. Nonetheless, the Court is satisfied that by making these orders, particularly in the form in which it has, there is little to no prejudice on the mother, and the father is given an opportunity to agitate for the return of X or even, perhaps, just to seek a reassurance from the mother that he will be returned so that the appeal might be prosecuted in the normal fashion. I have made the Watchlist orders on the basis that there is no harm and there is benefit in the sense that if X returns, he would then be prevented from once again leaving the country. In the circumstances, I am satisfied that the orders I have made are appropriate.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 30 June 2023. Associate:
Dated: 30 June 2023
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