Kane & Bakker (No 2)
[2022] FedCFamC1F 726
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kane & Bakker (No 2) [2022] FedCFamC1F 726
File number(s): SYC 8109 of 2018 Judgment of: AUSTIN J Date of judgment: 23 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application in a proceeding – Stay of orders – Where the mother seeks a stay of interim parenting orders pending the determination of her appeal – Where the stay application appears motivated by the mother’s dissatisfaction with the appealed orders – Where the appeal will not be rendered nugatory if the stay is refused – Where none of the six grounds of appeal pleaded are ostensibly meritorious – Application dismissed – Order made to suspend specified orders during the gazetted Summer school holidays Legislation: Family Law Act 1975 (Cth) Pt VII, ss 64B, 68B, 69ZL 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
AMS v AIF (1999) 199 CLR 160
Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621
Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681
JRN & IEG (1998) 72 ALJR 1329
Kane & Bakker [2022] FedCFamC1F 699
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No.2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 23 September 2022 Place: Newcastle (via video link) Solicitor for the Applicant: Fox & Staniland Lawyers Counsel for the Respondent: Mr Sansom SC Solicitor for the Respondent: ATW Family Law Solicitor for the Independent Children's Lawyer: Stidwill Lawyers ORDERS
SYC 8109 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KANE
Applicant
AND: MS BAKKER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
23 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Orders 3(a)(i) and 3(a)(ii) made on 30 August 2022 are suspended during the gazetted Summer school holidays, commencing on or about 21 December 2022 and concluding on or about 26 January 2023.
2.Otherwise, the Application in a Proceeding filed by the respondent mother on 20 September 2022 is dismissed.
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 under the pseudonym Kane & Bakker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
On 30 August 2022, I made interim parenting orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) between the parties in respect of their child, who is now four years of age (Kane & Bakker [2022] FedCFamC1F 699).
In effect, the orders do not alter the prior interim orders made in December 2020, save for the slight expansion of time the child will spend with the father during school holiday periods, commencing in September 2022.
The orders provide for the child to spend time with the father:
(a)Until the child starts school in early 2023:
(i)each Wednesday (Order 3(a)(i), which matches Order 4(a) made on 18 December 2020);
(ii)each alternate weekend, from Friday morning until Sunday afternoon (Order 3(a)(ii), which matches Order 4(b) made on 18 December 2020);
(iii)for two days in the Spring holidays, which visit follows on from one of the alternate weekend visits (Order 3(a)(iii)); and
(iv)for two discrete periods in the Summer holidays, one of four days duration and the other of five days duration (Orders 3(a)(iv) and 3(a)(v)).
(b)After the child starts school in 2023:
(i)each alternate weekend during school terms, from Friday afternoon until Sunday afternoon (Order 3(b)(i), which cuts back Orders 3(a)(i) and 3(a)(ii) to allow for the child’s school attendance on Wednesdays and Fridays); and
(ii)for five days in each school holiday period (Order 3(b)(ii)).
As can be seen, the only difference between these orders and those which have been in force since December 2020 is the few extra days in school holiday periods.
The proceedings are provisionally listed for trial in December 2022, so the orders will likely only prevail for the next few months until final orders are pronounced at some point following the trial, which one would expect to be early in 2023.
The mother has appealed from the orders and now, by an Application in a Proceeding filed on 20 September 2022, seeks the stay of the orders pending the determination of her appeal.
In support of the stay application, the mother relies upon her affidavit filed on 20 September 2022.
Legal principles
The discretion to stay the operation of orders should only be exercised in favour of an appellant where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the judgment pending the determination of the appeal, which may be when it is necessary to prevent the appeal from being rendered nugatory or there is a real risk it will be impossible for a successful appellant to be restored substantially to his former position if the appeal succeeds but the judgment is executed beforehand (Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 at 222–223).
In exercising discretion, the Court should consider the prospects of the appeal and where the balance of convenience lies (Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685).
These common law principles apply equally to judgments pertaining to parenting orders under Pt VII of the Act (Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]–[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No.2) [2008] FamCAFC 194 at [38]; JRN & IEG (1998) 72 ALJR 1329). The welfare of the child is to be considered as a significant, but not paramount, consideration when contemplating an application to stay parenting orders. The Court should also consider 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.
Discussion
By advertence to the mother’s affidavit, the reasons she advances for the stay of orders may be conveniently summarised as follows:
(a)Order 1 discharges former orders, thereby removing her entitlement to live with the child in City RR (at [6] and [9]) and precluding her from taking a planned holiday with the child in December 2022 (at [6], [58]–[60]), when no such discharge order was foreshadowed (at [57] and [61]);
(b)the orders for the child to spend time with the father during school holidays were made without notice and without any application (at [7]);
(c)she had little time to consider the orders proposed by the Independent Children’s Lawyer (“the ICL”) (at [41]–[43]);
(d)she will have difficulty managing her work commitments around exchanges of the child next week (at [49]–[50]); and
(e)she is worried about how the child will react to the changes (at [51] and [55]).
Order 1 was made to ensure the current parenting arrangements for the child are specified within one self-contained document rather than being spread over several different suites of operative orders. While that was not expressly discussed during submissions, it is difficult to conceive why it is controversial.
Order 1 does not prevent the mother and child from living in City RR, as the mother fears. The previous orders made in October 2020 (Order 1) and December 2020 (Order 1) “permitting” them to relocate to City RR were not valid parenting orders within the meaning of s 64B, nor mandatory or restrictive injunctions under ss 68B or 114 of the Act, and were accordingly not made in proper exercise of statutory power. The mother can live with the child wherever she chooses, so long as she complies with orders regulating the child’s interaction with the father (AMS v AIF (1999) 199 CLR 160 at 223–224 and 231–232). She chooses to live in City RR and the father does not assert she cannot.
Although Order 1 discharged a former order made in September 2020 (Order 3) allowing the mother to unilaterally suspend the child’s time with the father so she could take a holiday with the child before the end of 2022, Order 3(a)(iv) was made to expressly avoid any incursion on the Christmas vacation planned by the mother with the child. Her counsel informed the Court she would return from the holiday with the child on 28 December 2022, so the child will begin spending time with the father from the following day. To the extent it is understood that Orders 3(a)(i) and 3(a)(ii) continue to operate throughout the Summer holidays, which was not intended, an order can now be made to suspend those two orders during the Summer holidays. It would not be proper for me to amend the orders under the slip rule, without consent, when the mother is prosecuting an appeal which (in part) depends upon that point.
Another order was made in October 2020 enabling the mother to enrol the child at a City RR pre-school of her choice (Order 6), but the discharge of that order by Order 1 is of no moment. Her current enrolment is not controversial and she starts school in 2023.
There were no other extant substantive parenting orders or injunctions, from those formerly made in January 2019, February 2019, June 2019, February 2020, May 2020, September 2020, October 2020, December 2020, June 2021, July 2021, or October 2021, which remained useful, so their discharge seemingly causes no prejudice.
It is simply false for the mother to allege the orders providing for the child to spend time with the father during school holidays were made without notice and without any application. The introduction of the child spending time with the father in school holiday periods was expressly contemplated by the parties and the ICL. The father made an application months before for the child to spend block time with him in both the upcoming Spring and Summer school holidays, though the orders were not so generous as he hoped. So did the ICL. The mother accepted the child would begin spending block time with the father in school holidays, though not until 2023, so the school holiday orders begin operation a few months earlier than she hoped.
The mother’s complaint about having little time to consider the orders proposed by the ICL is baseless. Her counsel did say it had only been provided that morning, but the ICL’s proposal fell between those pressed by the parties. If the mother was equipped to deal with the father’s proposal, she was just as well equipped to deal with the ICL’s. The mother’s counsel sought permission to make further submissions when the hearing resumed after a break, which request was granted.
The difficulty the mother will experience managing her work commitments around the parties’ exchange of the child next week might be an irritant, but not more. The weekend and midweek orders effectively replicate those made between the parties in December 2020, as the mother concedes (at [11]). The changeover orders also replicate Order 4 made in December 2020 and the mother does not appeal from the changeover orders (Orders 4 and 5). The mother will collect the child from the father on Tuesday in lieu of Sunday. An obvious way for the mother to overcome any difficulty she experiences by travelling to Sydney next Tuesday to collect the child is to allow the child to remain with the father until the next day, when he must return the child to the mother (Orders 3(a)(i) and 4).
If the mother decides against that option, the closeness of the child’s changeovers next week on Tuesday afternoon in Sydney and Wednesday morning in City RR are manageable. The father must travel to City RR for the day if the child is to spend time with him next Wednesday 28 September 2022.
The mother’s worry about the child’s capacity to cope with the minor changes imposed by the orders could well be genuine, but the honesty of her sentiment is not objective proof of the fact.
Analysed in that way, it can be seen that none of the reasons advanced by the mother for the proposed stay orders are convincing. In reality, the stay application appears motivated by merely her dissatisfaction with the appealed orders. Nonetheless, I proceed on the basis that the appeal is bona fides.
The appeal is not rendered nugatory if the stay orders are not made, though the part of the appeal concerning Order 3(a)(iii) will fall away. The appeal has already been listed for hearing before the Full Court on 22 November 2022, in which event the child will spend only two extra days with the father under the appealed orders (pursuant to Order 3(a)(iii)) than she otherwise would have done under the orders made in December 2020, with which orders the mother is content.
It is unlikely the child’s best interests will be deleteriously affected by her spending two extra days with the father over the next couple of months, even if the mother is correct about the child’s anxiety and even if her appeal eventually succeeds.
Being a discretionary decision, the Full Court must approach the appeal on the basis of a strong presumption that the decision is correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 at 627). None of the six grounds of appeal pleaded in the Notice of Appeal filed on 20 September 2022 are ostensibly meritorious.
Ground 1 takes up an argument about the procedural unfairness of Order 1, which has already been addressed. No more can be usefully said.
Ground 2 alleges an error by making orders so close to final trial, but the orders were made in response to a review application filed by the father, which applications must be heard promptly. Jurisdiction was regularly invoked by the application and so had to be exercised. Furthermore, the proceedings are only “provisionally” listed for trial in December 2022 (Order 1 made by Harper J on 18 July 2022), and the matter is listed on 24 November 2022 to determine whether the provisional final hearing dates should be confirmed. If the mother’s point is that there was no choice but to dismiss any application for variation of existing interim orders simply because the final trial is imminent, the argument is unlikely to find favour.
Ground 3 alleges an error by not differentiating the child’s visits with the father on weekly and fortnightly cycles from those during school holiday periods. I have already explained how that problem can be addressed in the interregnum and will make orders accordingly.
Ground 4 alleges an error by making orders which will apply ahead into 2023, but some provision had to be made for 2023 in the event the provisional trial dates in December 2022 are not confirmed or to allow for the period which will almost inevitably elapse if judgment is reserved should the trial proceed in December 2022. Should that happen, judgment will not likely be published until the first few months of 2023. Once final orders are pronounced, the interim orders will lapse (r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
Ground 5 asserts an error in the orders which dictate changeover arrangements, but the orders replicate existing arrangements (pursuant to Order 4 made in December 2020), which the parties apparently implement unexceptionally.
Ground 6 alleges inadequate reasons, but they were delivered ex tempore, in short form as permitted by the Act (s 69ZL(1)), and in response to a review application. The ground does not purport to particularise the nature of the asserted insufficiency and counsel said it was yet to be amended.
The appeal lies from only some, not all, of the orders made on 30 August 2022. However, inconsistently, the mother seeks that all of the orders be set aside. Curiously, she appeals from and seeks the discharge of even Order 2, which provides for the child to live with her.
Although the mother proposes that all of the orders be set aside, she does not specify what relief she seeks in respect of the underlying review application or the respective proposals of the parties and the ICL, which were determined by those orders. Their applications cannot be left in suspension if the appeal succeeds. They must either be remitted for re-hearing or determined by the Full Court in the re-exercise of discretion. In either case, the remedial orders she must ask the Full Court to make will be impossible to reconcile with her prosecution of at least Grounds 2 and 4.
Conclusion
Taking all of those considerations into account, the mother has not demonstrated it would be appropriate for the appealed orders to be stayed unconditionally, though I am prepared to make orders to clarify that the weekly/fortnightly cycle will not spill into the Summer school holidays. Otherwise, the stay application will be dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 September 2022
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