Jennings & Jennings (No 2)

Link copied
Case Copied 43 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jennings & Jennings (No 2) [2022] FedCFamC1F 116

File number(s): BRC 3275 of 2019
Judgment of: HOWARD J
Date of judgment: 7 March 2022
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Stay application –application to stay final parenting orders permitting international relocation to New Zealand – weighing of various considerations applicable on a stay application – stay application dismissed.      
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Family Law Regulations 1984 (Cth) reg 24

Care of Children Act 2004 (NZ) ss 8, 81, 82, 85

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Art 24, 26 

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106

AMS v AIF (1999) 199 CLR 160

Banks v Banks (2015) FLC 93-637

Bennett & Bennett (1990) 102 FLR 370

Cape v Cape (2013) FLC 93-549

Collu v Rinaldo [2010] FamCAFC 53

Cox v Pedrana (2013) 48 Fam LR 65

Devries v Australian National Railways Commission (1993) 177 CLR 472

DL v The Queen (2018) 266 CLR 1

EJK v TSL (No.2) (2006) 35 Fam LR 590

Harridge v Harridge [2010] FamCA 445

In the Marriage of N and S (1995) 19 Fam LR 837

M v M (1988) 166 CLR 69

Panneton & Delauder [2021] FamCAFC 102

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

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

Trahn & Long [2008] FamCA 922

Wen v Thom [2010] FamCAFC 81
Division: Division 1 First Instance
Number of paragraphs: 78
Date of last submission: 2 March 2022
Date of hearing: 2 March 2022
Place: Brisbane
Counsel for the Applicant: Mr Bunning
Solicitor for the Applicant: SJP Law
Solicitor for the Respondent: Keyworth Harris & Lowe Family Lawyers
Counsel for the Independent Children's Lawyer: Mr Dodd
Solicitor for the Independent Children's Lawyer: Life Law Solutions

ORDERS

BRC 3275 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR JENNINGS

Applicant
AND:

MS JENNINGS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

7 MARCH 2022

THE COURT ORDERS UNTIL FURTHER ORDER:  

1.The Court will hear submissions as to the wording of orders to reflect the reasons for judgment delivered 7 March 2022.

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.

IT IS NOTED that publication of this judgment by this Court…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Jennings & Jennings (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FedCFamC1F 116
Decision Date

CaseChat Overview and Summary

Jennings & Jennings (No 2) involved a dispute concerning the relocation of a child to another country, with the father opposing the mother's intention to move with the child to New Zealand. The matter was heard in the Family Court of Australia, where the father sought to appeal the decision of the primary judge regarding the child's residence and international relocation. The central legal issues before the court included the appropriate weight to be given to historical family violence in determining the child's best interests, and whether the appeal would be rendered nugatory if the stay application was denied.

The court examined whether the primary judge had appropriately considered the evidence of historical family violence and if there was a failure to adequately weigh other relevant evidence. The court acknowledged that arguments concerning the weight of evidence are challenging to succeed with in appeals from discretionary judgments. It noted that the primary judge had correctly given greater weight to the need to protect the child from family violence, as mandated by the Family Law Act 1975 (Cth). The court found that the family violence was extensive and had warranted significant attention in the reasons for judgment. Despite the father's claims of gaining insight, the court remained unconvinced and made adverse credit findings against him.

The court also addressed the appeal's potential futility if the stay was refused, considering the father's residence in Australia and the mother's willingness to facilitate the child's relationship with the father. The court concluded that the appeal would not be rendered nugatory if the stay was denied, given the circumstances. The court referenced relevant case law to support its determination and highlighted the importance of the mother's stability and lack of flight risk. The court ultimately decided that the appeal would proceed, with the stay application denied.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Counsel for the father relied upon a decision of the Full Court entitled Panneton & Delauder [2021] FamCAFC 102 (“Panneton”). I am familiar with this decision. Paragraph 25 of the reasons for judgment under consideration bears no resemblance to the situation complained of in Panneton. The primary judge’s paragraph 144 in Panneton bears no resemblance to paragraph 25 in the reasons for judgment currently under consideration. To reiterate – a trial judge is entitled “to state out the outset the ultimate conclusion which he or she has reached…” Ground 3 This is a complaint that the Court focused on the evidence of historical family violence. It is said that the Court failed to engage with other evidence, hence causing the discretion to miscarry. It appears to be a complaint about weight. Arguments concerning weight are notoriously difficult to succeed with on appeal from a discretionary judgment. The argument pressed on behalf of the father seems to downplay ss 60CC(2)(b) and 60CC(2A) of the Family Law Act 1975 (Cth) (“the Act”). The Court is required by the Parliament to give greater weight to the consideration in s 60CC(2)(b) relating to the need to protect children from family violence etc. – ahead of the other primary consideration in s 60CC(2)(a) relating to the benefits to the child of having a meaningful relationship with both parents. Not that there is any suggestion that the child would not continue to have a meaningful relationship with the father. At the hearing of the application on 2 March 2022, very few submissions were made in relation to ground 3. The reasons show that family violence was so extensive that it required a significant amount of time to be devoted to it in the reasons for judgment. A significant amount of time during the trial was devoted to evidence (including by way of cross-examination) of the family violence perpetrated by the father and to whether or not the father had actually gained insight into the destructive effects his violent conduct had on the family. The father claimed that he had gained insight from some of his actions. The Court was not convinced and made a credit findings against the father. Depending on the facts of a particular case – different considerations contained in s 60CC assume greater or less prominence. In a case involving the residence of a 15 year old child, s 60CC(3)(a) (the wishes of a child) will be given very significant weight. This is not so with young children. In the instant case, because of the particular facts, the Court determined that very significant weight needed to be given to ss 60CC(2)(b) and 60CC(2A) and ss 60CC(j) and (k). This approach accords with authorities including Collu v Rinaldo [2010] FamCAFC 53.Grounds 4 and 6 Counsel for the father made submissions in relation to grounds 4 and 6 grouped together. Those grounds are linked and, to some extent, ground 8 is also linked. Most of the submissions made by counsel for the father at the hearing of the stay application related to grounds 4 and 6. That is why I have devoted more time to a consideration of those grounds in these reasons.

Ratio Decidendi

Legal Principle Established

Coleman J’s view was that this aspect was “the primary consideration”. The Full Court did not criticise his Honour in relation to the use of those words. I will work on the basis that the words used by the Full Court provide the appropriate formulation – namely that the question of whether or not an appeal would be rendered nugatory will be a “substantial factor” in determining this application. I have come to the conclusion that the appeal in the current case before the Court would not be rendered nugatory if the stay is refused. The father lives in Location C in Queensland with the subject child X (born … 2015). The mother lives in New Zealand with her older daughter Y (born … 2009). The child, Y travels to Australia during school holiday periods to have holiday time with her father, Mr B. The mother has facilitated this arrangement and it has worked well for the child, Y. The mother’s willingness and ability to facilitate the relationship between Y (living in New Zealand) and Y’s father (living in Australia) was one of the reasons that the Court concluded that the child should live with the mother in New Zealand. That is, the Court concluded that the mother will facilitate X’s time with his father in Australia (note paragraph 170 of the reasons for judgment). There is no evidence before the Court to suggest that the mother is a flight risk – in the sense that she has no intention of leaving New Zealand. This is important as will become apparent shortly. The mother was born in New Zealand. The mother is well settled in New Zealand with her new partner and with the child Y. There are a number of decisions involving stay applications brought in circumstances where there has been permission for an international relocation. In Cape v Cape (2013) FLC 93-549 (“Cape v Cape”) – the Full Court (Finn, Thackray and Aldridge JJ) – essentially, confirmed the correctness of a trial judge’s dismissal of a stay application in respect of an international relocation. The Full Court did vary the orders made by the trial judge. To do this, the Full Court had to “allow” the appeal – but the variation made by the Full Court still permitted the mother to leave Australia with the child and travel to live in Germany. The Full Court required that the mother obtain recognition from a Court in Germany pursuant to the so-called “Child Protection Convention”[1] – of the orders that had been made by the Family Court of Western Australia and the orders made by the Full Court. The mother was also required to obtain a declaration from the German Court of “enforceability in Germany” of the orders made by the Courts in Australia.[2] Furthermore, the Full Court required that the mother register in the Court in Germany the orders made by the Australian Courts. New Zealand is not a signatory to this Convention. However, it is possible to register an order of an Australian Court in New Zealand. Pursuant to Regulation 24 of the Family Law Regulations 1984 (Cth) – this Court is able to transmit its own orders to a New Zealand Court for registration upon request. [1] Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. [2] Article 26 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.