FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hillsworth & Kantawong (No 2) [2023] FedCFamC1F 904
File number: SYC 1826 of 2019 Judgment of: CHRISTIE J Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – STAY APPLICATION PENDING APPEAL – EX TEMPORE – Where the applicant has filed a Notice of Appeal against final orders which provide for the respondent to have sole parental responsibility for the child and permitting the respondent to relocate the child’s residence to Country B – Where the appeal is listed for hearing shortly before the respondent’s visa expires and the date from which the respondent is permitted to relocate the child’s residence to Country B – Whether a stay should be granted – Where if the applicant is successful on appeal the child may be required to return to Australia – Where it would be inappropriate and disruptive for the child to leave Australia only to have to return – Where it is proper to grant a stay pending further order.
FAMILY LAW – PARENTAL RESPONSIBILITY – Where the respondent sought orders in relation to the child obtaining an Australian passport – Where that issue resolves by consent at the hearing.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12 Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 3
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 23 October 2023 Place: Sydney Counsel for the Applicant: Ms Robinson Solicitor for the Applicant: Single Law Solicitor for the Respondent: Philip A Wilkins & Associates Solicitor for the Independent Children's Lawyer: Legal Aid ORDERS
SYC 1826 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HILLSWORTH
Applicant
AND: MS KANTAWONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.Pending further order, Orders 2-4, 6, 7, 9-14 and 16-18 are stayed.
BY CONSENT THE COURT ORDERS THAT:
2.The mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the child X born 2017 provided that the passport is obtained in the name X.
3.Pursuant to section 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child.
4.The Australian Passport issued to the child shall be provided to the mother to hold on behalf of the child.
5.The mother shall provide a copy of the passport and change of name certificate to the father within 7 days of issue.
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)…
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- AGLC
- Hillsworth & Kantawong (No 2) [2023] FedCFamC1F 904
- Case
- [2023] FedCFamC1F 904
- Decision Date
CaseChat Overview and Summary
Christie J addressed the stay application by considering the potential disruption to the child if they were to leave Australia only to return if the appeal was successful. The judge noted that the applicant's application appeared to be bona fide and had been prosecuted diligently. The court recognised that the mother had a right to the judgment and a presumption of its correctness, but this was only part of what must be considered. The judge was keen to avoid a situation where the father was successful on appeal, and the child was required to return to Australia. The urgency of the stay application arose from the mother's impending visa expiration in December 2023, rather than the child's immediate needs. The court found that it would be inappropriate for the child to leave Australia only to have to return, as the child was well settled in Australia and had never lived in Country B. The judge concluded that, on balance, it was proper to grant the stay pending further order, allowing any party to revisit the application if circumstances required.
The court resolved the issue of the child obtaining an Australian passport by consent. The mother was granted sole parental responsibility for signing all necessary documentation and obtaining the passport for the child, provided it was obtained in the child's name. The passport would be issued to the mother to hold on behalf of the child, and she was required to provide a copy of the passport and change of name certificate to the father within seven days of issue.
ORDERS:
1. Pending further order, Orders 2-4, 6, 7, 9-14 and 16-18 are stayed.
2. By consent, the mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the child X born 2017 provided that the passport is obtained in the name X.
3. Pursuant to section 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child.
4. The Australian Passport issued to the child shall be provided to the mother to hold on behalf of the child.
5. The mother shall provide a copy of the passport and change of name certificate to the father within 7 days of issue.
Orders
Orders of the court
SYC 1826 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR HILLSWORTH
Applicant
AND:
MS KANTAWONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1. Pending further order, Orders 2-4, 6, 7, 9-14 and 16-18 are stayed.
BY CONSENT THE COURT ORDERS THAT:
2. The mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the child X born 2017 provided that the passport is obtained in the name X.
3. Pursuant to section 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child.
4. The Australian Passport issued to the child shall be provided to the mother to hold on behalf of the child.
5. The mother shall provide a copy of the passport and change of name certificate to the father within 7 days of issue.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Those principles are relevant to the stay application before me today. CONSIDERATION There is nothing to indicate that the applicant is not bona fide in his application. This was, as I previously indicated in my reasons for judgment, a difficult case in which each party’s proposal had advantages and disadvantages. I accept that the mother has a right to the judgment and a presumption as to its correctness but that is only part of what must be considered. The date of filing of the stay was very soon after the Notice of Appeal and I conclude the applicant’s application has been prosecuted diligently and without delay. I accept that there is a proper basis for an application to stay the orders since the orders provide for a child to leave the Commonwealth of Australia to reside somewhere elsewhere on a permanent basis. I am keen to avoid a situation where the father is successful on appeal and X is as a consequence required to return to Australia. I accept the submissions of the father and the ICL that that situation would be disruptive for X. One of the difficulties in this case is that the mother’s current visa is due to expire in December 2023. As previously indicated, the orders were designed to accommodate the conclusion of the school year and the expiration of the visa. If a stay is granted then it could operate until such time as the appellate division of the court determines the appeal which may or may not be after the date of the visa expiration. I will express any order I make as pending further order which will permit any party to revisit the application if circumstances require. The urgency arises from the mother’s immigration status as opposed to the child’s immediate needs. It would be inappropriate for X to have left Australia only to have to return. X is well settled in Australia. X has never really lived in Country B. I accept that the appeal as presently drafted could not be regarded as an abuse of the court’s processes. I do not think that the appeal has been filed in order to delay proceedings. As to the merits of the appeal – the first ground asserts inadequate reasons. I am not convinced that the lack of reasons ground will ultimately find favour given paragraphs [76], [79] – [81] of my earlier reasons for judgment but that is a matter for others. The second ground appears to deal with the weight given to evidence and will face the usual challenges in that regard (Gronow & Gronow (1979) 144 CLR 513 at 519: “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”). The applicant father sought further orders in the case outline concerning the Airport Watchlist but by staying Order 16 X will remain on the Airport Watchlist. The orders do not prevent the mother from leaving the country. The orders do not prevent the mother from renewing her visa, which she indicated she has made enquiries about. Both of these factors mean that on balance, weighing both the interests of the applicant and the respondent (alongside those of the child) it is proper to grant the stay. Obtaining an Australian passport for the child