Fannon & Kappel (No 2)

[2024] FedCFamC1F 701

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fannon & Kappel (No 2) [2024] FedCFamC1F 701

File number(s):

BRC 1183 of 2022

Judgment of:

HOGAN J

Date of judgment:

15 October 2024

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother sought a stay of final consent orders pending hearing of her appeal – Where the father and the Independent Children’s Lawyer opposed the stay application – Where the mother’s appeal is listed for hearing in December 2024 – Where the Court is not satisfied that failing to grant a stay of the operation of the orders will render the mother's appeal nugatory – Where a change of the orders already in place pending appeal is not in the child’s best interests – Where orders are made dismissing the mother’s application for a stay  

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth)

Cases cited:

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

Anderson & Anderson (1982) FLC 91-251; [1982] FamCA 36

Clemett and Clemett (1981) FLC 91-013

Darley & Darley [2016] FamCAFC 10

Jackson & Balen (2009) FamCAFC 131

Friscioni & Friscioni [2009] FamCAFC 43

Melville & Melville (No 3) (2020) 61 Fam LR 280; [2020] FamCAFC 231

OP & TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155

Robinson & Willis (1982) FLC 91-215; [1982] FamCA 16

Tindall & Saldo [2015] FamCAFC 1

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

Division:

First Instance

Number of paragraphs:

38

Date of hearing:

15 October 2024

Place:

Brisbane

Applicant:

Litigant in person

Counsel for the Respondent:

Mr Gordon

Solicitor for the Respondent:

DA Family Lawyers

Counsel for the Independent Children's Lawyer:

Ms Eviston

Solicitor for the Independent Children's Lawyer:

Legal Aid Queensland

ORDERS

BRC 1183 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FANNON

Applicant

AND:

MR KAPPEL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	15 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed 1 October 2024 and sealed 9 October 2024 for a stay of the operation of the Orders made by consent on 19 August 2024, pending the outcome of the Notice of Appeal filed on 13 September 2024, is dismissed.

IT IS NOTED THAT:

A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.

B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Fannon & Kappel has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

HOGAN J:

1. On 19 August 2024, final parenting orders for X, who was born in 2013 and who was nearly 11 years of age, were made by consent on the afternoon of the first day the matter was listed for trial.  Those orders, which I will refer to as the August 2024 orders, provide that X's parents have equal shared parental responsibility for the major long-term issues relating to her and that, from 23 August 2024, she live in an equal time week-about parenting regime and communicate with the parent with whom she is not living on Sundays and Wednesdays of each week.

2. The order also provides, amongst many other things (by orders 24 and 24A) that the parents facilitate X attending upon a paediatrician, or a suitably qualified professional, for the purpose of having an assessment for ASD and that such person be provided with a joint letter authored by legal representatives and the Independent Children's Lawyer to provide a brief history of the matter, a copy of the orders and any other documents, in essence, that the Independent Children's Lawyer considers appropriate. The Independent Children's Lawyer's discharge was ordered to occur upon compliance with the latter requirement.

3. The August 2024 order also contains a number of Notations which include, at Notation B, that neither party contended that the other was an unacceptable risk to X.

4. On 23 August 2024, the orders were implemented and X began living with her parents in a week-about parenting regime.

5. On 13 September 2024, the mother filed a Notice of Appeal by which she seeks to appeal the August 2024 orders.

6. On 1 October 2024, the mother originally submitted an Application in a Proceeding seeking a stay of the operation of the August 2024 order pending determination of her appeal. For reasons associated with the requirement to provide a filing fee and matters relevant to staffing within the court to enable a review of the mother's application and absence an indication of urgency, the Application in a Proceeding was not sealed until 9 October 2024.  It was subsequently listed for hearing today.

7. The appeal is listed for a procedural hearing before the Appeals Registrar tomorrow. It has already been allocated a hearing date and will be heard by a Full Court of this Court on 11 December 2024: that is, approximately eight weeks hence. 

8. Both the father and the Independent Children's Lawyer oppose the grant of a stay of the operation of the August 2024 consent order pending the determination of the appeal by the Full Court. 

9. The determination of an application for a stay of the operation of an order pending appeal involves the exercise of discretion. The principles relevant to the exercise of that discretion are well known and include, as I outlined at the commencement of the hearing in the hope that to do so would assist the mother who appears in person before me, that:

   (a)a proper basis for a stay must be made out – and it is unnecessary for an applicant to demonstrate any special or exceptional circumstances; and

   (b)a person who has obtained an order is entitled to the benefit of that order; and

   (c)the mere filing of an appeal is insufficient to grant a stay, as is also provided for by rule 13.12(1) of the Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth); and

   (d)the bona fides of an applicant should be considered; and

   (e)in assessing whether to exercise the discretion in favour of granting a stay of the operation of orders pending an appeal, the Court should, or is required to, weigh the balance of convenience and the competing rights of the parties; and

   (f)the Court is required to weigh the risk that an appeal may be rendered nugatory if a stay is not granted, this being a substantial factor in determining whether it is or is not appropriate to grant a stay of the operation of orders pending appeal; and

   (g)there should be some preliminary assessment of the strength of the proposed appeal, in the sense of an assessment of whether an appellant has an arguable case; and

   (h)it is desirable to limit the frequency of any change in a child's living arrangements; and

   (i)the Court should have regard to the period of time within which an appeal can be heard; and

   (j)the best interests of the child, the subject of the proceedings, are a significant consideration.[1]

   [1]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No. 2) [2008] FamCAFC 194; Clemett and Clemett (1981) FLC 91-013; Jackson & Balen (2009) FamCAFC 131 at [28]; Friscioni & Friscioni [2009] FamCAFC 43 at [54]-[57].

10. In that sense, then, the orders sought by an appellant, if successful on an appeal, have some relevance. 

11. As I have already noted, the August 2024 orders have been implemented and X has been living in a week-about parenting regime since 23 August 2024. 

12. To stay the operation of the August 2024 orders and revert to the orders, as proposed by the mother to operate between now and the determination of her appeal, would require X to revert to spending time with her father as was provided for by interim parenting orders made in May and July 2023: namely, that she would spend time with him overnight each Wednesday and on each alternate weekend from Friday afternoon until Sunday afternoon. 

13. Given that, if successful in her appeal, the mother seeks that the Full Court make orders for X to spend time with the father from Thursday afternoon until Monday morning each alternate week, there exists the possibility of yet another change. 

14. Given that the August 2024 order has been implemented, I am not persuaded that failing to grant a stay of the operation of the same now will render the mother's appeal nugatory or that there remains a real risk that it will not be possible for the mother, if successful in her appeal, to have orders made in terms that she intends to seek in such a circumstance. 

15. Further, given that the August 2024 order has been put into effect and that X has had its terms explained to her, I consider that making an order now which stays the operation of that order would likely expose her to further disruption and would almost inevitably require and involve her in having to be told that what she has relatively recently been told would be her parenting regime – namely, living in a week-about equal time parenting regime – will now not be that and she will instead revert to spending four nights per fortnight with her father, albeit that that time occur by way of overnights each Wednesday evening and from Friday afternoon until Sunday afternoon each alternate weekend. 

16. As I have already adverted to, it may also require her to be given notice that there is a possibility of a further change to that regime, given the orders that the mother seeks, if successful in her appeal, would see the possibility, at least, of X living in a four-night a fortnight parenting regime, albeit one that would see her spend from Thursday afternoon until Monday morning in the care of the father. 

17. I am unpersuaded that this possibility is likely to be in X's best interests – that is, the requirement that she be told of a change to her current circumstances so soon after having the current week-about parenting regime explained to her and the prospect that she would also be told that that may not be the long-lasting parenting regime either. That is not, in my view, something that is in her best interests; nor, in my view, is imposing another change upon her so soon after the implementation of the agreed parenting regime, particularly noting:

    (a)the desirability of limiting the frequency of any changes in her living arrangements; and

    (b)the August 2024 orders were made by consent; and

    (c)that she is to be assessed in January 2025 for the presence of neurodivergence, whether ASD or ADHD or both. 

18. Any concern or thought that X would be at a risk of suffering harm if a stay of the operation of the August 2024 orders is not ordered has to be seen in the context of the mother's proposal for orders, if successful on her appeal, and the contents of the Notation to which I have already referred. 

19. The Notice of Appeal filed by the mother contains a number of assertions, which I have regarded for the purpose of this application as constituting grounds of appeal. They may be summarised to be as follows:

    (a)an assertion of duress by her legal representatives, as well as that she was provided with false or inaccurate legal advice, and that they were not prepared or sufficiently prepared and disengaged in their appearance on her behalf; and

    (b)secondly, that false information was provided to the Court prior to the making of the orders by consent in August of this year; and 

    (c)thirdly, that there was, and is, an absence of procedural fairness occasioned by the fact that this matter had previously been adjourned by the Court on a number of occasions before its listing for trial before me and this had adverse consequences for the mother in a number of aspects, as particularised in her Notice of Appeal, including in relation to the legal representation she had when the trial commenced; and 

    (d)fourthly, that inaccurate or false information was contained within the Case Outlines relied upon by the parties at the trial; and

    (e)finally, there is an assertion of missing or undisclosed evidence described as “key evidence”. 

20. Given that the mother seeks on appeal to challenge an order made by consent, it is relevant to note that her appeal – as does the appeal of any person challenging an order made by consent – confronts the issues discussed in authority such as Robinson & Willis[2] and Darley & Darley.[3] Insofar as the grounds of appeal raise the allegation of duress by the mother's legal representative, the appeal confronts the issues discussed in authorities such as Anderson & Anderson[4] and Melville & Melville (No 3),[5] as well as in Tindall & Saldo.[6]  Insofar as the grounds of appeal assert, in essence, issues with the competence of the legal representation which the mother had at the trial, the appeal confronts the issues raised in authority such as OP & TP & Anor (Conduct of Counsel).[7] 

    [2] (1982) FLC 91-215.

    [3] [2016] FamCAFC 10.

    [4] (1982) FLC 91-251.

    [5] (2020) 61 Fam LR 280.

    [6] [2015] FamCAFC 1.

    [7] (2002) 30 Fam LR 281.

21. The submissions made by Counsel who appeared for the father and the Independent Children's Lawyer were to the effect that the mother's prospects of successfully appealing the order made by consent in August of this year were limited. 

22. I proceed on the basis that the mother's appeal confronts the difficulties to which I have already adverted. 

23. As I outlined during the course of the hearing, in determining this application, I proceed on the basis that the mother is bona fide in bringing the appeal that she has commenced and that she is also bona fide in prosecuting the application for a stay of the operation of the August 2024 consent orders pending the determination of her appeal by the Full Court. 

24. As already noted, X's best interests are a significant consideration in the determination of the appeal. In having regard to those, I note that the parents' evidence contains a large number of factual matters about which they are in dispute. Given the impossibility of resolving those factual disputes at the hearing of an application such as this, I have instead focused upon matters such as the fact that the orders have been implemented, that X has already transitioned into a new parenting regime and the likely impact upon her of now (if a stay of the operation of the August 2024 orders was granted) being required to transition away from that into a different parenting regime – particularly given the listing of the appeal to occur on 11 December 2024. 

25. I consider it is undesirable for X to be required to undergo another significant change to her parenting regime given the relatively recent implementation of the August 2024 orders and the fact that the implementation of the same has been explained to her. 

26. Given that the appeal will be, as I have said, before the Full Court in mid-December of this year, I am not persuaded that to require X to undergo such a change is something which is in her best interests. 

27. I am not persuaded, therefore, that an order staying the operation of the August 2024 order is something that is beneficial for her or in her best interests. 

28. I note, also, that the various disputes between the parents about the implementation of the 2024 orders – in particular, what appears to be a disagreement about the steps to be taken to facilitate X's attendance upon Dr N, a paediatrician, in early January 2025 for assessment by that practitioner in relation to possible ASD or ADHD – are such as to be covered by the terms of the August 2024 orders.  I accept the submission to the effect that any assertion the father has failed to comply with the terms of those orders is something that can be the subject of consideration on another application and one that is not currently before the Court. 

29. I take into account, in arriving at that determination, the contents of the emails forwarded by Ms O, speech pathologist, to the parents on two dates in September 2024, respectively.  In the first of those emails, she outlines that, upon the father taking X to see her earlier, she made a number of recommendations that she thought X would benefit from.  Those are contained within that email.  She also makes it clear, at the top of the second page of the email (found at page 98 of the mother's amended/updated affidavit, sealed 11 October 2024) that she discussed with him the issues set out at the top of that page during the course of their interaction. 

30. It is also relevant to note that Ms O specifically expressed an encouragement for X's parents to work together and to get on with having her assessed, as is to occur in January of 2025. 

31. I also note the contents of Ms O September 2024 email – authored, it seems, after the mother attended upon her for a parental appointment the day before.  It contains and reiterates her recommendations in relation to matters to which attention should be given. 

32. Insofar as her recommendations contained within that email relate to her expressed concerns about X's anxiety, mental health and sleep problems – which provide, it seemed to me, a basis for her suggestion that she (X) attend as soon as possible upon a clinical psychologist for assessment and investigation – it is pertinent, I think, to record that the parents appear, at least from my reading of their affidavits relied upon in this application, to be factually in dispute about the existence of some, at least, if not all, of those issues. 

33. As I have said, I am not persuaded in such circumstances that the parental dispute about the manner in which the August 2024 orders are to be implemented persuades of the grant of a stay of the operation of those orders pending the matter being determined by the Full Court in December of this year. 

34. Insofar as submissions were made in respect of the issue of X not having a voice and not being heard, such submissions, in my view, need to be considered:

    (a)in the context of the parental agreement about the terms of the orders that were made by consent in August 2024; and

    (b)in the context of the differences in the parental evidence about issues such as how X has transitioned into the new parenting regime of her week-about time living with each of her parents and her expressions about this. 

35. The parents are, it seems to me, in dispute about those matters: the mother, in essence, asserted that X is expressing significant disaffection with the current parenting regime, whilst the father asserts, in essence, that she has settled in and has adapted to the changes which were implemented when the parents implemented the August 2024 order. 

36. I am not persuaded that causing X to have to revert to a different parenting regime, pending the determination of the mother's appeal, is something that is likely to be of benefit to her. 

1. For the reasons expressed orally, I am unpersuaded that the mother, as the applicant for a stay, has discharged the onus cast upon an applicant of establishing a proper basis for a stay of the operation of the August 2024 order pending the hearing of the appeal listed for 11 December 2024.

2. Consequently, I decline to make an order staying the operation of that order pending the determination of the mother's appeal. I dismiss the Application in a Proceeding by which such an order was sought.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan.

Associate:

Dated:       15 October 2024