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Hotchkiss & Marek (No 2)

Hotchkiss & Marek (No 2)

Case [2021] FedCFamC2F 598 16 December 2021

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598

File number(s): MLC 8449 of 2017

Judgment of: JUDGE DAVIS

Date of order: 10 December 2021

Date of reasons 16 December 2021

Catchwords: FAMILY LAW – STAY – REFUSAL TO GRANT STAY PENDING APPEAL OF INTERIM PARENTING ORDERS – Mother’s application for a stay of interim parenting orders pending the determination of her appeal of those orders – where the refusal of the stay had the effect of restoring long-standing time arrangements made pursuant to final consent parenting orders in a previous proceeding – the significance of the best interests of the children pending the determination of the appeal and factors relevant to the ascertainment of those interests – the identification and role of the status quo – judicial impression, or preliminary assessment, of the prospect of the substantive appeal succeeding – stay refused.

Legislation: Family Law Act 1975 (Cth), ss.62G, 65DAA

Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Beckford & Beckford (No. 2) [2020] FCCA 2775
Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
CSN & JBN(Full Court) (1998) 24 Fam LR 174
Clemett & Clemett (1981) FLC 91-013
Groth & Banks (No. 2) [2017] FamCA 36
K & B (2006) FLC 93-288
Hotchiss & Marek [2021] FedCFamC2F 456
Sheldon and Weir (Stay Application) [2011] FamCAFC 5
Stefanovski v Digital Central Australia (Assets) Pty Ltd [2017] FCA 1121
Rice and Asplund (1979) FLC 90-725

Division: Division 2 Family Law

Number of paragraphs: 97

Date of last submission/s: 3 December 2021

Date of hearing: 3 December 2021

Place: Melbourne

Counsel for the Applicant: Mr Atkinson

Counsel for the Respondent: Mr Combes
ORDERS

MLC 8449 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HOTCHKISS

Applicant

AND:
MR MAREK

Respondent

ORDER MADE BY:

JUDGE DAVIS

DATE OF ORDER:

10 DECEMBER 2021

DATE OF REASONS

16 DECEMBER 2021

THE COURT ORDERS THAT:
1.Paragraphs 1-5 of the Mother's Application in a Proceeding filed 30 November 2021 be dismissed.
2.Pursuant to section 68L(2) of the Family Law Act 1975 the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and
(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

AND THE COURT NOTES THAT:
A.At the hearing, the Mother withdrew her application for reportable family therapy made by paragraph 6 of her application in a proceeding filed 30 November 2021 with the agreement of the father that such withdrawal was without prejudice to the Mother's right to make such an application at a later stage if so advised.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hotchkiss & Marek (No 2)

Details

AGLC: Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598
Case: [2021] FedCFamC2F 598
Decision Date: 16 December 2021

CaseChat Overview and Summary

The case of Hotchkiss & Marek (No 2) involved an application by Ms Hotchkiss, the mother, for a stay of interim parenting orders pending the determination of her appeal of those orders. The matter was before the Federal Circuit and Family Court of Australia. The mother sought a stay which, if granted, would reinstate the long-standing time arrangements made under the final consent parenting orders in a previous proceeding. The respondent, Mr Marek, opposed the mother's application for a stay.

The legal issues before the court included the significance of the best interests of the children during the pendency of the appeal, the identification and role of the status quo, and the court's preliminary assessment of the prospect of the substantive appeal succeeding. The court considered the factors relevant to the ascertainment of the children's best interests, and the implications of the status quo in the interim period. The court also examined whether the mother's substantive appeal had a reasonable prospect of success, which would be a key factor in the decision to grant or refuse the stay.

Judge Davis concluded that the mother's application for a stay should be refused. The court found that the best interests of the children required the maintenance of the status quo, which was the long-standing time arrangements made under the final consent parenting orders in the previous proceeding. The court did not find that the mother's substantive appeal had a reasonable prospect of success, and therefore, refused the application for a stay. The court also ordered that the children be independently represented by an Independent Children's Lawyer, and that the parties provide relevant documents to the Independent Children's Lawyer upon notification of their appointment. The mother withdrew her application for family therapy at the hearing, with the father agreeing that this withdrawal was without prejudice to the mother's right to make such an application at a later stage if so advised.

Orders

Orders of the court

MLC 8449 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS HOTCHKISS

Applicant

AND:

MR MAREK

Respondent

ORDER MADE BY:

JUDGE DAVIS

DATE OF ORDER:

10 DECEMBER 2021

DATE OF REASONS

16 DECEMBER 2021

THE COURT ORDERS THAT:

1. Paragraphs 1-5 of the Mother's Application in a Proceeding filed 30 November 2021 be dismissed.

2. Pursuant to section 68L(2) of the Family Law Act 1975 the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a) Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and

(b) Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

AND THE COURT NOTES THAT:

A. At the hearing, the Mother withdrew her application for reportable family therapy made by paragraph 6 of her application in a proceeding filed 30 November 2021 with the agreement of the father that such withdrawal was without prejudice to the Mother's right to make such an application at a later stage if so advised.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598

Most Recent Citation

Ryder & Brooks (No 2) [2024] FedCFamC2F 708

Cases citing this decision · 1 of 1 shown

Ryder & Brooks (No 2)
[2024] FedCFamC2F 708

…CFamC1F 149 Friscioni & Friscioni [2009] FamCAFC 43 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716 Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598 House v The King (1936) 55 CLR 499 Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 JRN & KEN v…

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Cases cited in this decision · 11 of 11 shown

Hotchkiss & Marek
[2021] FedCFamC2F 456 Para 2

…Judge O’Shannessy’s orders ). On that day, Judge O’Shannessy delivered ex tempore reasons for making those orders.[1] [1] Hotchkiss & Marek [2021] FedCFamC2F 456 ( Hotchkiss & Marek ).…
BECKFORD & BECKFORD (No.2)
[2020] FCCA 2775 Para 14

…In addition, Mr Atkinson referred me to the judgment of her Honour Judge Carter in Beckford & Beckford (No. 2) [2020] FCCA 2775, which offers a recent statement of the principles in Aldridge & Keaton (Stay Appeal) .…
Stefanovski v Digital Central Australia (Assets) Pty Ltd
[2017] FCA 1121 Para 21

…In Stefanovski v Digital Central Australia (Assets) Pty Ltd [2017] FCA 1121, Derrington J made the following comments at [4(e)]: Necessarily, the applicant will need to establish that their appeal has some merit to it. They are not obliged to demonstrate that the appeal will be successful, or that success is more…
Groth and Banks (No 2)
[2017] FamCA 36 Para 12

…In Groth & Banks (No. 2) [2017] FamCA 36, Thornton J made the following remarks outlining authority specifically in relation to parenting orders: 16.In Friscioni and Friscioni [2009] FamCAFC 43, the Full Court (Boland, O’Ryan and Le Poer Trench JJ) outlined the relevant principles and stated that in cases where a…
Sheldon & Weir (Stay Application)
[2011] FamCAFC 5 Para 1

…In Sheldon and Weir (Stay Application) [2011] FamCAFC 5 Bryant CJ, Finn and Ainslie-Wallace JJ said at [27]: … [It] is impossible, at least in most cases, for a Judge in the position of her Honour, or an appellate court in our position, to be able in the context of proceedings relating to a stay of orders pending a…
Aldridge & Keaton (Stay Appeal)
[2009] FamCAFC 106 Para 11

…In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court (Bryant CJ, Boland and Crisford JJ) at [18] described those principles 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 know…
Friscioni & Friscioni
[2009] FamCAFC 43 Para 12

…2017] FamCA 36, Thornton J made the following remarks outlining authority specifically in relation to parenting orders: 16.In Friscioni and Friscioni [2009] FamCAFC 43, the Full Court (Boland, O’Ryan and Le Poer Trench JJ) outlined the relevant principles and stated that in cases where a stay of parenting orders is…
Bryant v Commonwealth Bank of Australia
[1996] HCA 3 Para 20

…s one that does not pre-determine, one way or the other, the substantive application. [emphasis added] [19] Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at p 463. [20] Ibid.…
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd
[1986] HCA 84 Para 11

…the Commonwealth of Australia v Myer Emporium Limited [No.1] (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) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature…
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)
[1986] HCA 13 Para 11

…espect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (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)…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 11

…ings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (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) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN &…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
62G, 65DAA 3 mentions (from Para 2)

File number(s):	MLC 8449 of 2017
Judgment of:	JUDGE DAVIS
Date of order:	10 December 2021
Date of reasons	16 December 2021
Catchwords:	FAMILY LAW – STAY – REFUSAL TO GRANT STAY PENDING APPEAL OF INTERIM PARENTING ORDERS – Mother’s application for a stay of interim parenting orders pending the determination of her appeal of those orders – where the refusal of the stay had the effect of restoring long-standing time arrangements made pursuant to final consent parenting orders in a previous proceeding – the significance of the best interests of the children pending the determination of the appeal and factors relevant to the ascertainment of those interests – the identification and role of the status quo – judicial impression, or preliminary assessment, of the prospect of the substantive appeal succeeding – stay refused.
Legislation:	Family Law Act 1975 (Cth), ss.62G, 65DAA
Cases cited:	Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Beckford & Beckford (No. 2) [2020] FCCA 2775 Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 CSN & JBN(Full Court) (1998) 24 Fam LR 174 Clemett & Clemett (1981) FLC 91-013 Groth & Banks (No. 2) [2017] FamCA 36 K & B (2006) FLC 93-288 Hotchiss & Marek [2021] FedCFamC2F 456 Sheldon and Weir (Stay Application) [2011] FamCAFC 5 Stefanovski v Digital Central Australia (Assets) Pty Ltd [2017] FCA 1121 Rice and Asplund (1979) FLC 90-725
Division:	Division 2 Family Law
Number of paragraphs:	97
Date of last submission/s:	3 December 2021
Date of hearing:	3 December 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Atkinson
Counsel for the Respondent:	Mr Combes

MLC 8449 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HOTCHKISS Applicant
AND:	MR MAREK Respondent

ORDER MADE BY:	JUDGE DAVIS
DATE OF ORDER:	10 DECEMBER 2021
DATE OF REASONS	16 DECEMBER 2021