Gerard & Santino (No 2)
[2024] FedCFamC1F 555
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gerard & Santino (No 2) [2024] FedCFamC1F 555
File number(s): MLC 53 of 2021 Judgment of: JOHNS J Date of judgment: 21 August 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – stay application – where final orders were made permitting the mother to relocate with the child to the United Kingdom – where final property orders were made providing for the father to pay the mother a fixed sum in 60 days – where the father has filed an appeal – where the father seeks a stay of the final orders pending the appeal – where the mother is in straitened financial position – where the mother has no secure housing in Australia – where the child does not yet have an Australian passport – where the father ceased providing financial support to the mother for three weeks following delivery of final judgment – where it is conceded the mother is entitled to the fruits of the judgment – where the father is offering limited financial support to the mother pending the appeal – application for stay of parenting orders refused – stay of property order granted on conditions Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Convention on the Civil Aspects of International Child Abduction
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106;
Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621;
Friscioni & Friscioni [2009] FamCAFC 43;
Gerard& Santino [2024] FedCFamC1F 386;
Sheldon & Weir [2011] FamCA 2;
Sheldon & Weir(Stay Application) [2011] FamCAFC 5
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 5 August 2024 Place: Melbourne Counsel for the Applicant: Litigant in Person Counsel for the Respondent: Ms Tulloch Solicitor for the Respondent: Kenna Teasdale Lawyers ORDERS
MLC 53 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SANTINO
Applicant
AND: MR GERARD
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.That pursuant to Rule 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Order 15 of the final orders made by the Honourable Justice Johns on 5 June 2024 (“the final orders”) be stayed pending the determination of the Notice of Appeal filed by the father on 3 July 2024 subject to the following:
(a)The father pay to the mother the sum of $10,000 on or before 1 September 2024, that payment to be deemed to be made in partial compliance with Order 15 of the final orders;
(b)That by 4.00pm on 30 August 2024 the father do all such acts and things as may be required to provide to the mother his birth certificate to enable application to be made for the issue of an Australian passport for the child X born 2019.
2.That the Application in a Proceeding filed 29 July 2024 and the Response to Application in a Proceeding filed 2 August 2024 be otherwise dismissed.
AND THE COURT NOTES
A.That it is agreed between the parties that by 4.00pm on 7 August 2024 the father will pay to the mother the sum of $750, being arrears of financial support payable by him pursuant to their agreement recorded at Notation A to the orders dated 1 February 2024.
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 Gerard & Santino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
On 5 June 2024 I made final parenting orders and published reasons for judgment in respect of the parties’ competing parenting applications regarding their child, X, aged almost five years (Gerard & Santino [2024] FedCFamC1F 386) (“the judgment”). The background to the dispute is detailed in the judgment and I do not propose to repeat it here.
The final orders made on 5 June 2024 (“the orders”) provide that:-
·The mother, who was the applicant in the proceedings, have sole parental responsibility for making all decisions regarding X’s long-term care, welfare and development and that X live with her;
·The mother be permitted to relocate the residence of the child to the United Kingdom as and from 31 July 2024;
·The father spend time and communicate with X. Detailed orders were made in relation to the father’s time, both in the period leading up to the relocation and following the relocation to the United Kingdom; and
·Orders were also made in relation to the adjustment of property as between the parties, the effect of those orders being that the father pay to the mother within 60 days, being 4 August 2024, the sum of $36,000 and otherwise the parties each retain their respective property interests.
On 3 July 2024, the father filed a Notice of Appeal in respect of the orders. The orders he seeks at Part F of that Notice of Appeal are as follows:-
1.Orders 1 to 14 made on 5 June 2024 be set aside and the parenting proceedings be remitted for rehearing before a judge other than the Honourable Justice Johns.
2. Order 15 made on 5 June 2024 be set aside.
3.That the father pay or cause to be paid to the mother the sum of $40,000 by way of 4 instalments as follows:
(a) $10,000 within 60 days of the date of these orders;
(b)$10,000 on or before 12 months after the date of payment pursuant to order 3(a);
(c)$10,000 on or before 12 months after the date of payment pursuant to order 3(b); and
(d)$10,000 on or before 12 months after the date of payment pursuant to order 3(c).
4.Costs of the appeal and any rehearing pursuant to the Federal Proceedings (Costs) Act 1981.
As to the grounds of appeal relied upon, the appellant father’s contentions include that:-
1.The finding made by the primary judge that it is in the child’s best interests for the mother to have sole parental responsibility was made against the evidence or the weight of the evidence:
(a)Inappropriate weight was given to the evidence given by [Dr K] in finding that the presumption in favour of shared parental responsibility should be rebutted; and
(b)While the evidence of the family report writer, [Ms M], was “accepted in its entirety” at paragraph 210 of the reasons for judgment, her recommendation that the parties have equal shared parental responsibility was not adopted and/or given adequate weight.
2.In circumstances where the evidence of [Ms M] “was accepted in its entirety” the primary judge failed to give reasons or adequate reasons as to why the court should not accept the recommendation made by [Ms M] that the parties should have equal shared parental responsibility.
3.The finding made by the primary judge that the child could maintain a meaningful relationship with her father if the relocation was permitted was made against the evidence or the weight of the evidence.
4.The finding made by the primary judge that the parties have the capacity to facilitate travel between the United Kingdom and Australia in the event of a relocation was made against the evidence or the weight of the evidence.
5.The finding…that upon the relocation being permitted, the mother would support the child’s relationship with the father was made against the evidence of the weight of the evidence.
6.The finding…that the difficulties facilitating the child’s electronic communication with the father from time to time arose “as a result of (the child’s) young age, and also as a result of the inflexibility and conflict between the parents” rather than the position advanced by the father…was made against the evidence or the weight of the evidence.
7.The finding…that permitting the relocation would be in the child’s best interests was made against the evidence or the weight of the evidence.
8.The order…that the father pay the mother the sum of $36,000 in 60 days is not just and equitable in circumstances where:
(a)There was no evidence…that the father has those funds immediately available to him…;
(b) There was a finding that the father has a tax debt of $44,000…;
(c)There was unchallenged evidence… that the father owes his parents $53,000 in legal fees.
At the time of hearing, I was informed that the father’s appeal was listed for mention before an Appeals Registrar on 13 August 2024 and that subject to compliance with the directions of the Appeals Registrar, the father’s appeal may be listed for hearing in the sittings of the Full Court to commence on 28 October 2024, although this is not certain. Further, there can be no certainty as to when judgment will be delivered in respect of the father’s appeal.
On 26 July 2024, the father filed an Application in a Proceeding in which he sought orders that:-
(a)The application be listed for an urgent hearing;
(b)That the operation of orders 2 to 6, 8 to 9, 12 and 15 of the orders be stayed pending the determination of the Appeal;
(c)That the parties be restrained from removing X from the Commonwealth of Australia until further order;
(d)That the Registry Manager of this Court cause a sealed copy of the orders to be served upon the Proper Officer of the Australian Federal Police at Melbourne;
(e)That the mother cause the child’s Australian passport to be delivered to the father; and
(f)That the father hold the child’s Australian passport pending the determination of the father’s appeal.
That application is supported by the father’s affidavit filed 26 July 2024.
The father’s application for a stay of the operation of the orders is opposed by the mother. She seeks orders that the father provide her with his birth certificate to enable her to apply for an Australian passport for X. Further, in the event that the father’s stay application is successful, she seeks orders that the father pay her rent and fees for accommodation pending finalisation of the appeal.
LEGAL PRINCIPLES
It is a matter of discretion whether or not a stay should be granted; the granting of a stay is dependent upon the circumstances of each particular case.
Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides as follows:-
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must:
(a) be filed in the registry in which the order under appeal was made; and
(b)be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable.
The principles relating to the granting of a stay pending appeal are well known and are conveniently set out by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, where it states as follows:
[18]The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & 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 include 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 any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant 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 a 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 the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
The discretion to stay the operation of orders should only be exercised where circumstances exist which justify a departure from the ordinary rule that a successful litigant is entitled the fruits of his or her litigation, pending the determination of any appeal.
Circumstances that may justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory, or where there is a real risk that it will not be possible for a successful appellant to be restored to his or her former position if the orders are executed.
In determining that question, the Court should consider the prospects of the appeal and where the balance of convenience lies between the parties.
When considering an application to stay parenting orders, the welfare of the child is considered a significant, but not paramount consideration. Ordinarily, changes of residence should be limited as far as reasonably possible.
Other matters relevant to the consideration of the application to stay include whether the child’s present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal and the likely delay before the appeal is heard and determined.
Further, the Court should also take into account whether the appealed judgment is discretionary in nature (as it is here). The Appellate Court must strongly presume such judgment to be correct (per Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627). That this is so was confirmed by the Full Court in Friscioni & Friscioni [2009] FamCAFC 43 where it stated at [53]:-
53.This is an appeal against a discretionary judgment and in determining such an appeal there is a strong presumption in favour of the correctness of the decision. The limits on interference by an appellant court with such a judgment are well established in the authorities. It is not enough that the appeal court considers that, if it had been in the position of the court below, it would have reached a different outcome. It must be established that there has been some error made in exercising the discretion.
The onus of establishing a proper basis for a stay of the orders rests with the father.
THE FATHER’S CASE
The father was represented by Counsel at the hearing. The following submissions were made on behalf of the father in support of his stay application:-
·It was conceded that the mother is entitled to the fruits of the judgment;
·It was also conceded that the mother is entitled to presume that the judgment is correct;
·It was submitted that the consequences of the decision permitting the mother to relocate to the United Kingdom with X are significant and have the potential to impact the child’s relationship with the father. Accordingly, it was submitted that the father is bona fide in bringing the appeal and that it is not a frivolous application;
·The father proposed that there be conditions on the grant of the stay, as set out in Exhibit G2, namely that:-
·Within 14 days he pay to the mother the sum of $10,000 in partial satisfaction of Order 15 of the final orders;
·Within 7 days he do all acts and things as may be required to complete X’s Australian passport application;
·The application for a stay be otherwise adjourned to a date to be fixed in October 2024, save in the event that the appeal is listed for hearing in 2024 in which event the application be dismissed and the hearing vacated.
·Sensibly, it was conceded that the appeal would not be rendered nugatory absent a stay of the operation of the orders. At its highest, it was submitted that it would be inconvenient were the mother to return to the United Kingdom with X, and further there would be disruption to the child and to her relationship with the father were she to travel to the United Kingdom pending the finalisation of the appeal;
·The father contends that he has an arguable appeal. The submissions made on his behalf in that respect were brief and focussed on the order that the mother have sole parental responsibility for making decisions regarding X’s long-term care, welfare and development. It was submitted that that order was not open to the Court in circumstances where the evidence of the Family Report Writer had been accepted. Heavy reliance was placed on the fact that the Family Report Writer made recommendations that the parties should have equal shared parental responsibility for X’s long-term, care, welfare and development;
·It was also submitted that it would be preferable to limit the number of changes in the child’s living arrangements pending determination of the appeal, and to that end the mother and child ought remain in their existing rental accommodation in Australia. That would ensure that there is no disruption to the child’s relationship with the father.
THE MOTHER’S CASE
The mother represented herself at the hearing. She relied upon the following documents:-
(a)Response to Application in a Proceeding filed 2 August 2024; and
(b)Affidavit of the mother filed 2 August 2024.
The mother’s position, simply put, is that she has obtained a judgment and is entitled to the benefit of that judgment.
She contends that her financial position has worsened since the final hearing, thus amplifying her need to return to the United Kingdom with the child. She deposes in her affidavit at [6] that the father stopped paying the agreed financial support of $250 per week on 5 June 2024, being the day the judgment was delivered. Although she deposes that those payments ceased for approximately six weeks, at hearing it was admitted by the father, and accepted by the mother, having regard to the banking records produced by the father (Exhibit G3), that in fact those payments ceased for a period of three weeks, and resumed on 27 June 2024, some six days prior to the filing of the Notice of Appeal. The father missed three payments totalling $750.
During the period that he ceased providing that financial support to the mother, it was conceded by the father that on 14 June 2024 he paid the sum of $10,000 to his lawyers’ trust account and a further $1,400 in respect of an outstanding invoice to that firm. Further, on 30 July 2024 the father paid an additional $12,000 into his lawyer’s trust account. At the time of hearing, that firm held $22,000 upon trust for the father.
At [11] of her affidavit, the mother deposed that she had left the child’s passport application for collection and completion by the father from the child’s kindergarten. She deposed that the father had taken that document but had yet to sign and return it to her. As a result, the child’s passport application has yet to be lodged.
It was conceded on behalf of the father that he had not yet signed the application. Ultimately, the application for an Australian passport was signed by the father during the course of the hearing, albeit that he is still to provide to the mother his birth certificate to enable the application to be filed. It was conceded by the father that there ought be an order that the father attend to the production of his birth certificate to the mother to enable the passport application to be lodged. Accordingly, I will make orders to that effect.
The mother also deposed as to the uncertainty of her current rental accommodation. She deposes that her rent has increased in 2024 and that she is unable to afford that additional amount. Further, the mother submitted that her position has worsened since the final hearing as she now has one, and not two housemates (as was the case at trial) contributing to the rent. The mother deposed that her current housemate is not in a position to pay increased rent.
The mother also deposed that her current living arrangements with that housemate has become increasingly difficult due to his desire to entertain his friends at the property in the evenings, which has been unsettling and caused disruption to X.[1]
[1] Mother’s affidavit filed 2 August 2024, paragraph 12.
The mother deposes that she cannot afford the increased rent, even were she to obtain an additional housemate. Further, the mother deposed that she has informed the rental agent of her intention to vacate the property, given the final orders made permitting the relocation.
During her oral submissions, the mother confirmed that there is no current lease on the premises, that the lease expired in 2024, and she is living month-to-month in that property. The mother confirmed during her oral submissions that she will be required to vacate the property upon the landlord providing her with 30 days’ notice.
The mother deposed at [14] of her affidavit that she has nowhere else to live, that she does not have the financial capacity to secure new rental accommodation and that she is still ineligible for the full Parenting Payment or Rental Assistance from Centrelink. There was no challenge to that evidence.
The mother submitted that in the event that she is required to vacate her current accommodation, she will not be in a position to commit to a rental property, which would likely have a term of not less than 12 months. She submitted that short-term accommodation, such as AirBnB, will be expensive and will likely exhaust her savings. Further, it was submitted by the mother that in the event she is forced into short-term accommodation, this is likely to be disruptive to X.
In contrast, the mother submitted that if permitted to return to the United Kingdom pending finalisation of the appeal, she will be able to live at the home of her father and stepmother rent‑free and will have the benefit of ongoing family support which will provide X with stability and security.
The mother confirmed that she would return to Australia if required at the conclusion of the appeal.
DISCUSSION
As this is an interim hearing, there was no cross-examination. Accordingly, I am unable to make findings in relation to disputed facts.
The father’s affidavit provides little evidence that assists the Court in the determination of the current application as it largely focusses on his complaints as to the mother’s alleged conduct following the making of the final orders. The mother disputes many of those matters. In any event, those matters agitated by the father, even if proven, are not relevant to the determination of his application to stay the operation of the orders pending the determination of his appeal.
As noted earlier, in the determination of the father’s stay application I must have regard to the principles relating to the granting of a stay pending appeal as identified in Aldridge & Keaton (Stay Appeal).
Pursuant to the final orders, the mother was not permitted to relocate until after 31 July 2024. The father filed his Notice of Appeal on 3 July 2024, but did not file his application for a stay of the orders until more than three weeks later on 26 July 2024. In circumstances where there was no stay on the operation of the orders, the mother’s evidence is that she has given notice to her rental agent of her intention to relocate. Hence, her future living arrangements in Australia are now uncertain. That issue is compounded in circumstances where the mother’s rent has increased to a level which she says she cannot afford. As a result, her ongoing tenure in that accommodation is uncertain, her tenancy being on a “month-to month basis”.
Whilst the proposed return to the United Kingdom represents a change in X’s circumstances, including changes to her residence, her existing child-care arrangements, and the manner in which she spends time and communicates with the father, I accept that her current accommodation in Melbourne is also attendant with much instability and uncertainty.
If the mother is permitted to travel to the United Kingdom pending the finalisation of the appeal, she and X will have the security and stability of rent-free accommodation with the mother’s family as well as the ongoing support they can provide to her. The mother has no such support network available to her in Australia.
The mother intends to reside in the United Kingdom pending the appeal. As such, there is little risk of her not returning to the jurisdiction if required, in circumstances where the United Kingdom is a signatory to the Convention on the Civil Aspects of International Child Abduction (generally referred to as the “Hague Convention”).
Further, as X is not yet of school age, there will be little disruption to her educational or social development if she is permitted to travel to the United Kingdom with the mother pending the finalisation of the appeal. Such travel will afford X the opportunity of living with and spending time with members of the maternal family.
Whilst there will inevitably be disruption to the child’s ability to spend time with the father if permitted to travel, she will be able to communicate with him frequently. Further, the orders make provision for the father to travel to the United Kingdom to spend time with X should he elect to do so. The Family Report Writer’s evidence, which I accepted, was that X’s meaningful relationship with the father would continue in the event of relocation. [2]
[2] Gerard& Santino [2024] FedCFamC1F 386, paragraphs 193 – 194, 201 and 207.
The principal grounds of appeal relied upon by the father are that:-
·The order for the mother to have sole parental responsibility was made “against the evidence or the weight of the evidence”;
·That the trial Judge did not provide adequate reasons in respect of the order that the mother have sole parental responsibility;
·The determinations made in respect of the child’s ability to maintain a meaningful relationship with the father and for the parties to facilitate time between the father and the child upon relocation was made “against the evidence or the weight of the evidence”.
Further, there is an attack upon the findings made as to the mother’s capacity to support communication between the father and the child, it being contended that those findings too were made “against the evidence or the weight of the evidence”.
As can be seen, the appeal largely challenges the exercise of the trial Judge’s discretion. As such, the appeal is not without its difficulties, particularly so in circumstances where due to findings that the father had perpetrated family violence, including coercive and controlling behaviour, against the mother, the presumption in favour of equal shared parental responsibility is rebutted.[3] Whilst I accepted the evidence of the Family Report Writer, I was not bound by her recommendations, as appears to be contended on behalf of the father.
[3] Gerard & Santino [2024] FedCFamC1F 386, paragraph 277.
The mother has a right to the judgment and a presumption as to its correctness.
I am satisfied that the father has prosecuted his appeal diligently. However, the three week delay in bringing his stay application, his conduct in withdrawing financial support to the mother upon the filing of the appeal, and failing to provide the documents necessary for the issuing of an Australian passport for X are matters of concern and undermine the strength of his submissions as to his bona fides. On one view, such conduct may be viewed as another form of coercive control.
I am satisfied that the cessation of financial support provided by him to the mother following the delivery of judgment likely had a direct adverse impact on X and the mother. Similarly, his failure to do all things to facilitate the completion of X’s passport application in a timely fashion was no doubt a significant stressor for the mother and deprived her of the opportunity of making orderly arrangements to travel with X as provided by the orders.
I am also satisfied that the uncertainty of the mother’s living arrangements in Melbourne is a compelling factor in the determination of this issue. As was conceded by the father’s Counsel, his appeal will not be rendered nugatory in the event that the mother is permitted to travel to the United Kingdom with X pending the appeal.
Whilst it is possible that the appeal will be listed for hearing in the sittings commencing on 28 October 2024, there is no certainty that that will occur. Further there is no certainty as to when the judgment will be delivered in relation to the appeal.
Although the father concedes that he will pay the sum of $10,000 in partial satisfaction of Order 15 of the final orders, I am not satisfied that such payment, if made, appropriately addresses the mother’s accommodation issues. It is a capital payment towards her property entitlement, and I do not consider that she ought be required to draw on that sum to meet her ongoing rental expenses. In any event, were she required to apply those funds in that manner they would be exhausted in a matter of months, thereby leaving the mother, and by extension, the child, in a precarious position.
The mother’s circumstances are not dissimilar to those considered by Ryan J in Sheldon & Weir [2011] FamCA 2 where her Honour dismissed an application to stay final parenting orders for the mother to have sole parental responsibility for the parties’ two-and-half year-old daughter and permitted her to relocate with the child to the Republic of Ireland. In that case her Honour found the child’s living circumstances in Australia to be unsatisfactory, noting that the mother and child had vacated their rental property and were sharing a room at the home of a friend, effectively “living out of suitcases”. Her Honour noted that the mother was in a “very vulnerable financial position”, as is the position of the mother in this case. The decision of her Honour to refuse the father’s stay application was upheld on appeal (Sheldon & Weir(Stay Application) [2011] FamCAFC 5).
Having regard to the above matters, I am not persuaded that there ought be a stay of the operation of the parenting orders in circumstances where:-
·the mother is living in rental accommodation on a month-to-month basis and has no certainty of her ongoing occupancy of her rental accommodation. I do not consider those circumstances to be satisfactory. I am satisfied that the mother and the child are in a tenuous and vulnerable position with respect to their housing;
·the mother has limited financial resources and no family support in Melbourne. The father offers only limited financial support, and has at times been unreliable in the provision of that support, as is evidenced by his failure to make payments for a period of three weeks following the delivery of judgment;
·the father makes no proposal to assist the mother with the costs of her accommodation pending appeal;
·permitting the mother to remove the child from Australia will not render the appeal nugatory, particularly in circumstances where she will be travelling to a Hague Convention country and the mother concedes the child will be returned if required; and
·there is no certainty that the appeal will be heard and determined this year.
At the conclusion of the hearing the father agreed to pay to the mother the sum of $750.00, by way of payment of the arrears arising from the agreed amount of support he failed to pay to her following the delivery of judgment. I will make a notation to that effect.
The father also agreed that orders ought be made regarding the production of his birth certificate to enable completion of X’s passport application. I will make orders to that effect.
As to the father’s application to stay the property orders, at the time of the hearing he was in breach of those orders, it being his position that he did not have the capacity to pay the lump sum of $36,000 ordered to be paid within 60 days, being 4 August 2024. That submission was somewhat hollow, having regard to the husband’s payments to his lawyers, totalling $23,400 since judgment as evidenced in his Costs Notice (Exhibit G1).
The father conceded his preparedness to pay to the mother the sum of $10,000 on or before 19 August 2024, such sum to be deemed to be paid in partial compliance with Order 15 of the final orders and in accordance with his proposed final orders.
The father’s Counsel made no submissions as to the merits of the father’s appeal against the property order. Given the sum in issue, and the application made by the father that orders should be made that he pay to the mother the sum of $40,000 in instalments of $10,000 over the next three years, as opposed to the final orders that he pay the sum of $36,000 within 60 days, the prospects of him successfully appealing that order would appear limited. Nonetheless, it cannot be said that his appeal has no merit.
Accordingly, accepting that his case is arguable I will stay the operation of the final property order on the conditions proposed by the father.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 21 August 2024
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