Galipo & Anor and Christie

[2021] FCWA 148

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GALIPO & ANOR and CHRISTIE [2021] FCWA 148

CORAM: O'BRIEN J

HEARD: 11 AUGUST 2021

DELIVERED : Ex tempore

FILE NO/S: PTW 320 of 2020

BETWEEN: MR GALIPO and MRS GALIPO

Applicants

AND

MR CHRISTIE

Respondent

Catchwords:

PARENTING - Stay of orders pending appeal - Where the parents of the children are deceased - Where the paternal grandparents and the maternal uncle each sought orders in relation to the children - Where the matter proceeded to trial over 12 days - Where final orders were made on 5 August 2021 for the children to live with the grandparents, and permitting the grandparents to return to Country A with them - Where the uncle has filed an appeal against those orders, and seeks a stay pending the determination of that appeal - Where the uncle concedes that if the stay is granted the appeal should be expedited - Preliminary assessment of the grounds of appeal - Consideration of whether a successful appeal would be rendered nugatory if a stay is not granted - Consideration of other matters relevant to the exercise of discretion in the granting of a stay - Stay granted on strict conditions, on the basis that the appeal can be heard on 5 November 2021 - Turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicants	:	Ms A
Respondent	:	Ms B
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicants	:	Law Firm A
Respondent	:	Law Firm B
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Cape and Cape (2013) FLC 93-549

Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220

Grabar (1976) FLC 90-147

Grassby v The Queen (1989) 168 CLR 1

Gronow v Gronow (1979) 144 CLR 513

Galipo & Anor and Christie [2021] FCWA 140

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390

Lovell v Lovell (1950) 81 CLR 513

Mallett v Mallett (1984) 156 CLR 605

Monk v Bartram (1891) 1 QB 346

Symes v Commonwealth of Australia (1987) 89 FLR 356

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galipo and Christie has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The matter requiring determination is the application of [Mr Christie] (for convenience, “the uncle”) for a stay of parenting orders made by Duncanson J on 5 August 2021 pending the determination of his appeal filed on 9 August 2021 against those orders. The application is opposed by [Mr Galipo] and [Mrs Galipo] (for convenience, “the grandparents”).

2The proceedings relate to the parenting arrangements to be made for the children [Child A] born [in] 2013, [Child B] born [in] 2016, and [Child C] born [in] 2019, and arose in tragic circumstances. The children’s parents died in [an accident] [in] January 2020. At the time of the accident, the grandparents, who reside in [Country A], were visiting the children’s parents in Perth. The children and the grandparents were [involved in] the accident and were injured.

3The grandparents have remained in Perth since the accident, living with the children in the family home.

4The uncle, who at the time also resided in Country A, travelled to Perth after the accident followed shortly thereafter by his wife [Ms D] and their son [Child D]. They lived in the family home for a period of time after the accident but have since obtained their own accommodation. They too have remained in Western Australia.

5The primary orders provide for the grandparents to have joint parental responsibility for the children, and for the children to live with them. Previous orders placing the children on the Family Law Watchlist to prevent their departure from Australia were discharged, and orders were made expressly permitting the grandparents to relocate the children to Country A.

6The primary orders further require the grandparents to keep the uncle informed of long-term decisions made in respect of the children, for the children to communicate with him, and for the children to spend time with him, in a structured manner detailed in the orders, for four weeks each year, alternating between Country A and Australia. In the years when the children are to spend time with the uncle in Australia, the grandparents are required to accompany them for the necessary travel.

7In the event that the uncle returns to reside in Country A, the orders provide for the children to spend time with him as agreed between the parties.

8Various specific issue and supportive orders were also made, as to the costs of travel, communication and the like. An order was made permitting the grandparents to “file with the competent Family Court in [Country A] a copy of the final order [made in this court]”.

The notice of appeal

9The trial before Duncanson J proceeded in two tranches over eight days in January 2021 and a further four days in June 2021.

10The uncle’s notice of appeal contains eight grounds, summarised as follows:

(a)ground one asserts an error in law in refusing the uncle’s application to file updating affidavit material “for material changes in circumstances and evidence relevant to the issues” prior to the second tranche of the trial;

(b)ground two asserts that Duncanson J “failed to take into account the lack of disclosure from the grandparents of relevant facts and material which only came to light due to subpoenas issued”, in circumstances where permission to inspect the subpoenaed documents was only granted on 21 June 2021 being the first day of the second tranche of the trial, “thereby denying the uncle and the ICL the ability to call and cross examine persons relevant to that material”;

(c)ground three asserts an error in law in refusing the uncle’s application for the grandmother to be recalled to be further cross examined in the second tranche of the trial about “evidence and documents arising after” the first tranche of the trial;

(d)ground four asserts an error in making the orders contained in paragraphs 7 and 12 of the primary orders, asserting those orders to be mutually inconsistent;

(e)ground five asserts error in “elevating [her honour’s] assessment of the children’s ‘primary attachment’ to a determinative factor without proper consideration of all the factors and evidence, including the (sic) attachment to the Uncle”;

(f)ground six asserts error in fact and in law when her Honour determined that the grandparents had the capacity to provide for the children’s needs, including the ability to encourage and promote relationships, by reference to listed matters which it is suggested were either not taken into account or given insufficient weight;

(g)grounds seven asserts an error in fact in her Honour’s finding that the uncle’s motive in seeking care of the children was at least partly driven by his desire to stay in Australia, asserting that finding was made in the absence of evidence; and

(h)ground eight asserts error in finding that the Single Expert Witness (“SEW”) recommended “preparatory psychological counselling for the children to assist with the transition (whatever the outcome)” and then failing to make an order for such counselling.

The legal principles

11The authorities stress the discretionary nature of an application for a stay, which must be heard by the judicial officer who made the primary order unless (as in this case) that judicial officer is unavailable.[1] The mere filing of a Notice of Appeal is insufficient to ground a stay.[2]

[1] Family Law Rules 2004 (Cth) r 22.11.

[2] Cape and Cape (2013) FLC 93-549, [23] (“Cape”).

12The applicant bears an onus to establish a proper basis for the stay, but is not required to demonstrate “special” or “exceptional” circumstances.

13A person who has obtained a judgment is entitled to the benefit of that judgment, and to presume that the judgment is correct. Those long‑standing common law principles apply in proceedings in this court,[3] including parenting proceedings.[4]

[3] Monk v Bartram (1891) 1 QB 346.

[4] Cape, [21].

14In exercising its discretion, the court may consider the bone fides of the applicant.

15A stay may be granted on terms that are fair to both parties. That in turn may involve the Court weighing the competing rights of the parties and the balance of convenience as between them.

16A weighing of any asserted risk that an appeal may be rendered nugatory if a stay is not granted will be a substantial factor in the exercise of the discretion. That risk has been described in various terms, including the identification of a “real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed”,[5] and whether the grant of a stay is required to “preserve the subject matter or integrity of the litigation”.[6]

[5] Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220, 223.

[6] Grassby v The Queen (1989) 168 CLR 1.

17The exercise of the discretion is also informed by a preliminary assessment of the strength of the proposed appeal. What is required is an objective preliminary assessment only, to identify whether in the opinion of the judge hearing the stay application the applicant has an arguable case on appeal.

18The exercise of the discretion is further informed by reference to 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, the desirability of limiting the frequency of any change in a child’s living arrangements, and the best interests of the child the subject of the proceedings.[7]

The uncle’s application and affidavit

[7] Cape, [21].

19In his application in a case filed on 9 August 2021 the uncle sought a stay of the primary orders, other than the order for the discharge of the Independent Children’s Lawyer (“ICL”). In case there was a delay in the hearing of his stay application, he sought an urgent injunction restraining the grandparents from removing the children from Western Australia or permitting anyone else to do so. He sought further orders that pending the hearing of the appeal the children spend time with him for three weekends out of four from 4.00 pm Friday until 4.00 pm Sunday, and for one half of all school holidays, commencing at 4.00 pm on the Friday of the first week unless otherwise agreed.

20The uncle’s application was supported by his affidavit sworn the same day. In that affidavit, he set out briefly the relevant background, and referred to submissions made by his counsel on 5 August 2021, on the delivery of judgment. He said further that at that hearing the grandparents’ counsel had said words to the effect that the then current arrangements for the children to spend time with him would continue pending their departure, which would be in a matter of weeks.

21The uncle then went on to outline difficulties which he said he encountered in spending time with Child C on the weekend of 6 to 8 August 2021, while noting that Child A and Child B spent time with him. He gave evidence that Child A was very upset about the outcome of the trial, begging he and his wife to “fight for [him]”, and saying that he did not want to go to Country A.

22He said further that he sought orders to spend time with the children pending the hearing of the appeal, and that the orders he sought were “in line with the arrangements made [with the grandfather] although with more time with [Child C]”.

23Appropriately, he indicated his intention to “progress the appeal as expeditiously as possible”. He otherwise expressed concern that if the children were taken to Country A, and the appeal is successful, they would face significant difficulty in re‑entering Australia for reasons to do with the pandemic, noting further that his own visa status and that of his wife would place them at risk of being refused re‑entry to Australia were they to travel to Country A to collect the children. He expressed the view that the grandparents would be able to remain in their current accommodation pending the hearing of any appeal, and that even if they faced difficulty in that regard they were well supported by the local Country A community in any event.

The grandparents’ response and affidavit

24The grandparents filed a response on 10 August 2021, seeking the dismissal of the uncle’s application. Each swore an affidavit in support of that response; the grandmother’s affidavit did little more than confirm the content of the grandfather’s affidavit.

25In his affidavit, the grandfather set out the current schooling arrangements for Child A and Child B, and his intended arrangements for their schooling in Country A. He confirmed that Child B and Child C had acquired Australian citizenship at birth, and said that Child A (who was born in Country A at a time when his parents did not have permanent residency status in Australia) “has an Australian citizenship”. While the matter was not expressly covered in his affidavit, it was common ground at the hearing before me that Child A was a part of his parents’ application for citizenship, that the application had been approved, and that the ceremony at which citizenship was to be formally conferred was scheduled for Australia Day 2020, and did not proceed following the fatal accident. Counsel for the uncle acknowledged that it was common ground that Child A has Australian citizenship, albeit the certification has not yet been completed.

26The grandfather said that Child B has an Australian passport, and that on 9 August 2021 he and the grandmother had “applied for [Child C’s] passport and for the issuing of [Child A’s] citizenship”, expressing the intention to apply for an Australian passport for Child A once his citizenship certificate is issued.

27The grandfather’s affidavit did not descend into further detail to enable any assessment of how long those processes might take. On his evidence, they were commenced only two days ago. At the hearing this morning counsel for the grandparents conceded that there will be some delay in the issue of Australian passports, that the extent of that delay cannot be confidently predicted notwithstanding efforts being made to expedite the process, and that the Country A passports which she said had been issued for the children were not to hand.

28The grandfather said further that his bridging visa, and that of the grandmother, have been extended and are due to expire on 6 October 2021, and expressed uncertainty as to whether they would be further extended. He noted that the uncle has a temporary visa, which he says will expire in approximately 10 months.

29The grandfather went on to emphasise that, having arrived in Perth to visit only in late 2019, he and the grandmother had been booked to return to Country A on 18 January 2020. It was only the tragic death of the children’s parents, the grandparents’ own injuries, and their subsequent commitment to care for the children that prevented their return. He confirmed their desire to return home to Country A as soon as possible.

30The grandfather disputed any suggestion that there had been difficulties with the children spending time with the uncle, explaining his version of events on the weekend immediately following the delivery of the judgment.

31He said further that the family home, in which the grandparents and children presently live, is owned by [Finance Company A] and that the debt on it exceeds its value. That debt has not been serviced since the accident. On his evidence, Finance Company A has expressed an intention to “repossess the house and sell it”.

32He otherwise set out in summary form the proposals of the grandparents for the care of the children on return to Country A, and their financial circumstances.

33The grandfather’s affidavit did not address the merits of the orders sought by the uncle for the children to spend time with him pending determination of the appeal, in the event the stay is granted. I raised that issue with counsel for the grandparents, who understandably indicated that there had not been an opportunity to take detailed instructions in response to that aspect of the uncle’s application, while submitting more generally that no orders are required, bearing in mind the absence of interim orders over the course of the primary proceedings other than in relation to certain specific dates and occasions.

34Sensibly, counsel for the uncle conceded that that aspect of her client’s application should properly be adjourned generally, with liberty to the parties to seek a relisting in the event of disagreement. At my invitation, the ICL expressed her preliminary view in relation to the making of interim orders, favouring them, in case that is of assistance to the parties in the further discussions which will no doubt take place.

The submissions of the ICL

35The ICL supported the application of the uncle. She said that in her view there may be merit to the appeal, expressing some concern as to the findings of the primary judge as to primary attachment in particular. In any event, she pointed to the disruption to the children that would occur if they were to leave their current home, accompany the grandparents to Country A, and then be required to return in the event of the appeal being successful.

36The ICL also expressed concern as to the possibility that the children may have been informed that they are returning to Country A, and at the confusion that might arise if a stay is granted. She proposed that in that event she be authorised to speak to [Dr A], who continues to provide counselling to the children, to explain the effect of any stay order and the process from this point, with a view to Dr A then reassuring the children in an appropriate manner. Again sensibly, counsel for the parties expressed no opposition to that proposed course.

Preliminary assessment of the merits of the appeal

37In making the required preliminary assessment of the merits of the appeal, I acknowledge the obvious limitations on that assessment. The stay application is brought as a matter of urgency, and without the grounds of appeal being supported by the submissions and cross reference to documents and transcript that will form part of the presentation of the case on appeal. I am conscious also that I do not have the advantage of the degree of familiarity with the case available to the primary judge who would, were it not for her unavailability, hear the stay application.

38Ground one asserts an error in law in refusing the uncle’s application to file updating affidavit material “for material changes in circumstances and evidence relevant to the issues” prior to the second tranche of the trial. In fact, it was the ICL who filed on 13 May 2021 an application in a case seeking orders permitting the filing no later than 14 days prior to the date fixed for the resumption of the trial of updating affidavits by the grandmother, the uncle, and witnesses [Ms O] and [Ms Q]. The application also sought leave for the filing of an affidavit by [Mrs I]. The ICL’s application was supported by the uncle.

39That application was listed to an existing hearing on 18 May 2021, which had been scheduled for the consideration of a request by counsel for the uncle and the ICL to alter listed trial dates. On 19 May 2021, the primary judge dismissed the application in so far as it sought leave to file updating affidavits, but granted leave for the issue of various subpoenas. The uncle was recalled on the first day of the resumed trial, giving further evidence. The parties agreed that the evidence of Ms O was relied upon, but she was not required for cross examination. Ms Q gave oral evidence.

40In circumstances where the uncle and the witnesses just mentioned were permitted to give evidence in the second tranche of the trial, albeit orally rather than on affidavit, no error of law on the part of the primary judge is readily apparent. That is particularly so when at the hearing in question, counsel for the uncle expressly acknowledged that the updating evidence sought to be adduced could be adduced orally, saying “in short, we don’t have to do the affidavits but we thought it would save some time”. I note further the submission of counsel for the uncle at the relevant hearing that the proposed affidavit of Mrs I would be “a short affidavit about the level of assistance she has provided which was a little bit of a gap in the evidence and will plug that”.

41In dismissing the application, the primary judge made it clear that she was “content to receive any necessary updating evidence by way of oral evidence”, but that she did not propose to allow the filing of further affidavits “including to plug any gaps”.

42At the hearing this morning, counsel for the uncle in response to questions from me acknowledged that the central complaint raised by ground one is that the primary judge erred in refusing the application of the ICL seeking an order compelling the grandparents to file updating affidavits of evidence in chief prior to the second tranche of the trial.

43My preliminary assessment is that ground one is without merit.

44Ground two asserts that the primary judge “failed to take into account the lack of disclosure from the grandparents of relevant facts and material which only came to light due to subpoenas issued”, in circumstances where permission to inspect the subpoenaed documents was only granted on 21 June 2021 being the first day of the second tranche of the trial, “thereby denying the uncle and the ICL the ability to call and cross examine persons relevant to that material”.

45The ground as drafted is unclear. On its face, it appears to suggest that in determining what orders were in the best interests of the children the primary judge should have taken into account the asserted lack of disclosure from the grandparents, while then acknowledging that the information said not to have been disclosed came to light when documents were produced under subpoena. In response to my enquiry, counsel for the uncle clarified the position, saying that the thrust of the ground of appeal was that (in circumstances where the subpoenas in question were served only shortly prior to trial, and no criticism could be raised as to the timing of the grant of leave to inspect) the uncle and the ICL were nevertheless denied the opportunity to call and cross examine persons relevant to that material.

46Having advanced that proposition, counsel acknowledged that the uncle did not bring any application on or after 21 June 2021 to call additional witnesses to address matters disclosed in the subpoenaed documents, nor did he at any stage seek an adjournment of the trial for that purpose.

47That being so, and bearing in mind the general principle that on appeal parties are bound by the conduct of their case at first instance, it is difficult to identify merit in ground two.

48Ground three asserts an error in law on the part of the primary judge in refusing the uncle’s application for the grandmother to be recalled to be cross examined in the second tranche of the trial about “evidence and documents arising after” the first tranche of the trial. On my preliminary review of the materials it did not appear that any such application was formally made. Indeed, when counsel for the grandparents confirmed that she did not seek to recall either of them to give further oral evidence, counsel for the uncle then moved directly to the calling of her next witness.

49I raised that point squarely with counsel for the uncle, who said that (understandably) her recollection of the sequence of events did not descend to that level of detail. Nevertheless, counsel was firm in her submission that an oral application had been made before the primary judge to require the grandmother to be recalled for further cross examination, which application was refused.

50I am unable to make any reasoned preliminary assessment of the merits or otherwise of ground three.

51Ground four asserts an error in making the orders contained in paragraphs 7 and 12 of the primary orders, asserting those orders to be mutually inconsistent.

52The order at paragraph 7 is as follows:

“The children communicate with [the uncle] as agreed between the parties.”

53The order at paragraph 12 is as follows:

“The children communicate with [the uncle] at all reasonable times by electronic means, including special occasions such as the children’s birthdays and Christmas.”

54While there is an obvious tension between those two orders, my preliminary assessment is that is a matter readily (and more appropriately) addressed by the application of the slip rule rather than on appeal. The provisions of Rule 17.02 do not require recital. While the slip rule does not apply where the amendment is a matter of controversy, that does not appear to be the case here. It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the Court’s order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission.[8]

[8] Symes v Commonwealth of Australia (1987) 89 FLR 356.

55My preliminary assessment is that ground four is without merit. Even if I am wrong in relation to the likely application of the slip rule, noting submissions made by counsel to the effect that the form of orders was (if only briefly) argued, not all demonstrated errors on the part of a primary judge are productive of a miscarriage of justice necessitating appellate intervention.

56Ground five asserts error in “elevating [her honour’s] assessment of the children’s “primary attachment” to a determinative factor without proper consideration of all the factors and evidence, including the (sic) attachment to the Uncle”. Properly understood, this ground raises a weight challenge. The principles applicable to such challenges are well-known and do not require repetition.[9]

[9] Mallett v Mallett (1984) 156 CLR 605, Gibbs CJ citing with approval the statement of Latham CJ in Lovell v Lovell (1950) 81 CLR 513; Gronow v Gronow (1979) 144 CLR 513, [519].

57The primary judge’s finding that the children are primarily attached to the grandparents was consistent with the evidence of the SEW, supported by the evidence of Dr A, and in my view clearly open to her. Indeed, the grounds of appeal do not suggest otherwise. It may fairly be observed that, while the primary judge clearly (and in my view properly) regarded that finding as important in determining the outcome that would best advance the children’s best interests, it cannot be said that her Honour did not also consider the evidence as to the nature of their attachment to the uncle and his wife. Indeed, her Honour expressly found that the children “have a close and loving relationship with [them]”.[10] She considered not merely the question of attachment in isolation, but the likely effect on the children of separation from the grandparents, the likely effect on them of separation from the uncle and his wife, and indeed the likely effect on the children of separation from the child of the uncle and aunt, Child D.

[10] Galipo & Anor and Christie [2021] FCWA 140, [374].

58My preliminary assessment is that the proposition that the finding of primary attachment was elevated to a “determinative factor” is not made out by a reading of the judgment as a whole. Nevertheless, it remains open to the uncle to challenge the weight given to that finding by the primary judge in her overall determination. On my preliminary assessment, ground five is not strong.

59Ground six asserts error in fact and in law in the primary judge’s determination that the grandparents had the capacity to provide for the children’s needs, including the ability to encourage and promote relationships, by reference to listed matters which it is suggested were either not taken into account or given insufficient weight. Those listed matters descend to a level of detail which render a preliminary assessment of them impracticable in the context of the urgency of the stay application. In broad terms, they relate to propositions regarding the grandparents’ age and state of health by comparison to that of the uncle and his wife, propositions as to the practical arrangements proposed to be made for the children in Country A including as to accommodation, daily care, education and health, and the attitude of the grandparents to the uncle and his family and the relevance of that to the proposition that they would support maintenance of the relevant relationships.

60Again, the principles applicable to weight challenges do not require repetition. It is, however, open to the uncle to pursue such challenges, and to seek to demonstrate a failure on the part of the primary judge to take into account relevant considerations. It is also open to him to challenge relevant findings of fact, albeit subject to the established principles in that regard to which I will refer shortly.

61Ground seven asserts an error of fact by the primary judge in finding that the uncle’s motive in seeking care of the children was at least partly driven by his desire to stay in Australia, asserting that finding was made in the absence of evidence. There are two difficulties which immediately emerge.

62First, I am unable to identify any point in the judgment at which that finding is actually made; at [449], her Honour merely says:

“It may be suggested that the uncle’s motive in seeking care of the children was at least partly driven by his desire to remain in Australia. The uncle said whether or not the children are in his care would have no effect on his visa”.

63Her Honour does not in that paragraph make the finding complained of; she merely notes the suggestion made, and the uncle’s evidence in denial of it.

64I invited counsel for the uncle to point me to any further relevant and clear finding in the judgment. Her submission was that the relevant paragraph appears in the judgment under a heading “any other fact or circumstance that the court thinks is relevant”; my understanding of her argument was that by reference to that heading it is appropriately to be inferred that the statements under it constitute findings. A similar submission was made in relation to ground eight.

65While I am not persuaded by that submission, nothing turns on it.

66Even if the finding complained of was made, an appeal court should not interfere with factual findings reasonably open on the evidence.[11] While a finding of fact for which there is no evidence constitutes a question of law alone,[12] the assertion in ground seven of an “absence of evidence” is inaccurate when regard is had to the evidence of the uncle’s father,[13] the evidence of [Mrs U][14] and the evidence of [Ms M].[15]

[11] In the Marriage of Grabar (1976) FLC 90-147; Gronowv Gronow (1979) 144 CLR 513.

[12] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390.

[13] Galipo & Anor and Christie [2021] FCWA 140, [160].

[14] Ibid [183].

[15] Ibid [199].

67My preliminary assessment is that ground seven as presently formed is without merit.

68Ground eight asserts error by the primary judge in finding that the Single Expert Witness (“SEW”) recommended “preparatory psychological counselling for the children to assist with the transition (whatever the outcome)” and then failing to make an order for such counselling. The “finding” referred to[16] simply recites the view of the SEW; self-evidently, it was open to the primary judge to accept or reject that view. To the extent it might be suggested that her Honour was in error in failing to follow the recommendation of the SEW in that regard, that selective complaint might fairly be viewed in context of the uncle’s criticism of her Honour’s agreement with the conclusions of the SEW as to, for example, the importance of the likely effect of any changes in the children’s circumstances in the overall determination.

[16] Ibid [451].

69My preliminary assessment is that ground eight as presently cast is without merit.

Consideration and conclusion

70As will be apparent, my preliminary assessment is that the uncle’s appeal does not have strong prospects of success. That is not, however, the relevant test in determining his application for a stay of the primary orders, even were it not for the circumspection with which necessarily preliminary assessments should be approached. On balance, I am not prepared to conclude that the uncle’s appeal is not arguable.

71The uncle submits that in the absence of a stay, and presupposing that the grandparents and children then leave Australia prior to the hearing and determination of the appeal, a successful appeal will be rendered nugatory. The ICL supported that submission. Counsel for the grandparents sought to argue by reference to the grandparents’ expressed intention to comply with orders that in the absence of a stay a successful appeal would not be rendered nugatory.

72While the grandparents have indicated their intentions to comply with any orders that might be made following an appeal, and the primary orders include provisions permitting them to be filed with what is described as the “competent Family Court in [Country A]”, there is no evidence before me nor were submissions made as to the recognition, registration or enforcement in Country A of orders made by this Court. While Country A is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, that is neither here nor there for present purposes.

73That is so, as the concept of a successful appeal being rendered nugatory is not limited to a consideration of whether it would be so rendered in a strictly technical sense; it extends to a consideration of practicalities and financial realities associated with enforcement. It is sufficient to note that the financial circumstances of all parties are modest, and that the distinct possibility of difficulties being faced in the parties or the children being permitted re-entry to Australia following departure cannot be ignored.

74I am satisfied that if the primary orders are not stayed, and the grandparents departed with the children to Country A prior to the determination of the appeal, a successful appeal by the uncle would potentially be rendered nugatory in the relevant sense.

75Little more need be said about the prejudice to the uncle if the stay is not granted. There is no suggestion raised that he is other than bona fide in his pursuit of the appeal.

76The asserted prejudice to the grandparents if the stay is granted is easily stated; they are prima facie entitled to the benefit of the judgment, they would argue that the appeal is without merit, and they want to go home.

77While I have considerable sympathy for the position of the grandparents, particularly in the tragic circumstances which led them to stay in Australia, and when they have made significant sacrifices in order to care for their grandchildren in those circumstances, the prejudice to them in the granting of a stay can to a significant degree be obviated, and is not in any event necessarily as significant as it would first seem.

78No travel arrangements have yet been made for the proposed departure to Country A, nor has any expense been incurred in that regard. As earlier noted, neither Child C nor Child A have passports, and Child A’s asserted Australian citizenship has not been certified. Some delay in the completion of those processes may reasonably be anticipated, as was appropriately conceded.

79The exercise of the discretion as to the granting of a stay is informed by reference to the period of time in which the appeal can be heard. At my request, prior to this morning’s hearing the Regional Appeals Registrar made enquiries in that regard, and has confirmed that the appeal can be heard on Friday, 5 November 2021. That hearing can be accommodated by the members of the Full Court convening for it by video link from their various locations.

80The present arrangements for the children’s care by the grandparents in Perth are self-evidently satisfactory and stable. In making that observation I do not disregard the evidence of the grandfather as to his concerns as to security of tenure in their current accommodation; with the consent of the parties and the ICL I propose to authorise the solicitors for the grandparents to provide a copy of these reasons for decision to Finance Company A, noting my observation that the grandparents are only required to remain in Perth by virtue of orders of this court which prevent them from removing the children from Western Australia, and that they have appropriately persisted in their efforts to be released from that restraint.

81I observe further that it is very much in the interests of these three children, who lost their parents in such tragic circumstances, to be able to remain in their current family home at least pending the determination of the appeal. In those circumstances, I am confident that Finance Company A, appropriately informed, will adopt a sympathetic and sensible approach.

82On balance, I conclude that the primary orders should be stayed, but on the condition that the appeal is prosecuted expeditiously. To that end, the Regional Appeals Registrar has advised that she will list the appeal for a directions hearing on 20 August 2021 at 10.00 am. The purpose of that hearing will be to make all necessary procedural orders to ensure that the appeal can be heard on 5 November 2021.

83I am conscious also of the need to obviate to the extent possible the prejudice to the grandparents arising from the stay, in the event that the appeal is unsuccessful. I note in that regard that they have only very recently applied for a passport for Child C, and have not yet applied for a passport for Child A. I would not want them to face a situation where they could not progress the process of obtaining passports between now and the determination of the appeal, only to have to resume that process in the event the appeal is unsuccessful.

84Accordingly, while I propose to stay the primary orders, I propose to make an interim order giving the grandparents joint parental responsibility for the children, and orders expressly permitting them to obtain passports for the children or any of them without the need for the consent of any other person.

85I was advised by counsel for the grandparents that the primary orders have been forwarded to the Australian Federal Police for the purpose of removal of the children from the Family Law Watch List. I do not know whether that request has been actioned. Out of an abundance of caution, I propose to authorise the uncle to provide a copy of the orders to be made today to the Australian Federal Police should he wish to do so. I propose further to restrain the grandparents from removing the children from Western Australia pending the determination of the appeal. Counsel for the grandparents sensibly conceded that those steps were appropriate if the stay was to be granted.

Orders

86There will be the following orders:

Notice of appeal / Stay of orders

1.The orders contained in paragraphs 1 to 17 inclusive and 19 of the orders of the Honourable Justice Duncanson dated 5 August 2021 be and are hereby stayed pending the determination of the Form 19 Notice of Appeal filed on 9 August 2021, on the condition that the Appellant, [Mr Christie]:

(a)comply strictly with all procedural orders and directions made in relation to the preparation and conduct of the appeal;

(b)within one (1) business day of receipt of the requested quote for the provision of the transcript of the proceedings before the primary judge, order and pay for such transcript; and

(c)otherwise do all things necessary to ensure that the appeal is able to be heard to conclusion on
5 November 2021.

2.In the event that the Appellant fails to comply with any of the conditions set out in the immediately preceding order, the Respondents to the appeal, [Mr Galipo] and [Mrs Galipo], have liberty to seek a relisting before the Honourable Justice O’Brien at short notice for consideration to be given to the discharge of the order staying the primary orders.

Orders in the primary proceedings

3.Until further order:

(a)the Applicants, [Mr Galipo] and [Mrs Galipo], have joint parental responsibility for the children, [Child A] born [in] 2013, [Child B] born [in] 2016 and [Child C] born [in] 2019 (“the children”);

(b)the Applicants are at liberty to apply for and obtain passports for the children or any of them without the need for the authority or agreement of any other person; and

(c)the Applicants be restrained and an injunction is hereby granted restraining them from removing the children or any of them from the State of Western Australia, or causing or permitting any other person to do so.

4.The Applicants through their solicitors are at liberty to provide copies of these orders and of the judgment delivered this day to [Finance Company A].

5.The Respondent, [Mr Christie], through his solicitor is at liberty to provide a copy of these orders to the Australian Federal Police.

6.In the event that steps have already been taken to remove the names of the children or any of them from the Family Law Watch List, the solicitors for the Respondent are at liberty to inform the Court to that effect by letter, on receipt of which the file is to be referred immediately to the Honourable Justice O’Brien in chambers for orders to be made to reinstate the names of the children on the said watch list.

7.The Independent Children’s Lawyer is at liberty to advise the children’s counsellor, [Dr A], of the orders made today, and explain to [Dr A] the effect of those orders and the steps which will now be taken in the proceedings, with a view to [Dr A] then appropriately reassuring the children as she considers appropriate.

8.The Form 2 application in a case of the Respondent filed on 9 August 2021, and the response of the Applicant’s filed on 10 August 2021, otherwise stand adjourned generally, with liberty to relist before the Honourable Justice O’Brien at short notice in the event that the Honourable Justice Duncanson is unavailable.

9.Costs of both parties and the Independent Children’s Lawyer reserved.

These reasons are the reasons for decision delivered on 11 August 2021, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

GA

Associate

12 AUGUST 2021