KELLETT & KELLETT
[2012] FamCA 566
•13 July 2012
FAMILY COURT OF AUSTRALIA
| KELLETT & KELLETT | [2012] FamCA 566 |
| FAMILY LAW - PRACTICE AND PROCEDURE – Stay of proceedings – Where the father seeks a stay for his appeal regarding orders allowing the mother to return to Indonesia with the child – Where there is a real risk that the father’s appeal will be rendered nugatory if the stay is not granted – Stay granted |
| Sheldon and Weir (No 4) [2010] FamCA 1214 |
| APPLICANT: | Ms Kellett |
| RESPONDENT: | Mr Kellett |
| FILE NUMBER: | SYC | 3121 | of | 2012 |
| DATE DELIVERED: | 13 July 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 13 July 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | KDB Holmes Solicitors |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Dura |
SOLICITOR FOR THE FIRST RESPONDENT: | Clarkekann Lawyers |
Orders
IT IS ORDERED
That subject to compliance by the father with the conditions referred to in these orders the orders made by the Court on 13 July 2012 be stayed until the disposition by the Full Court of the father’s appeal.
That not later than 4.00 pm on Monday 16 July 2012 the father file and serve a Notice of Appeal and an Application for expedition in relation to the Appeal.
That in the event that the father fails to comply with order 2 then order 1 is discharged.
That the father expeditiously prosecute the Appeal so as to ensure that the matter can be heard by the Full Court on 25 July 2012.
That the mother is restrained from removing the child L KELLETT born … July 2003 from the Commonwealth of Australia before the disposition of the Appeal.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS REQUESTED
That the Australian Federal Police place the above named child on the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and maintain him on the PACE Alert System until further order of the Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kellett & Kellett (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3121 of 2012
| Ms Kellett |
Applicant
And
| Mr Kellett |
First Respondent
REASONS FOR JUDGMENT
Before the Court are proceedings in relation to parenting of a child, L Kellett (“the child”), born in July 2003. Today, judgment was handed down in relation to an application by the mother that she be permitted to return with the child to Indonesia, which is the country of his habitual residence and the country from which he was abducted by the father on 20 May 2012. Orders were made permitting the mother to remove the child from Australia and return with him to Indonesia.
An application has been made by the father for a stay of those orders, pending appeal. I am advised by counsel for the father and the solicitor for the mother, that the appeal can be dealt with on 25 July 2012.
In a decision in a matter of Sheldon and Weir (No 4) [2010] FamCA 1214, her Honour, Ryan J, set out the matters which have to be taken into account when determining an application for a stay, pending appeal.
The authorities make plain that a stay is not ordered as a matter of right. It is discretionary and the discretion to grant or refuse a stay will depend upon the circumstances of the particular case. In relation to the application to stay parenting proceedings, the Full Court in Truong & Lieuw (Chen) (No. 2) 2008 FAMCA of C194, described the process thus:
These principles, both in the general law and in respect of parenting proceedings, are well settled. See Commissioner of Taxation and the Commonwealth of Australia & Myer Emporium Limited 1986 160CLR 220 at 230. Alexander & Cambridge Credit Corporation 1985 2 New South Wales Law Report 685. Jennings Constructions Limited & Burgundy Royale Investments Proprietary Limited 1986 161 CLR 681. Clemmett & Clemmett 1981 Family Law Cases 91-013. JRN and KEN & IEG and 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 special or exceptional circumstances;
* a person who has obtained a judgment is entitled to the benefit of that judgment;
*the person who has obtained a judgment is entitled to presume the judgment is correct;
*the mere filing of an appeal is insufficient to ground 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 the stay;
*some preliminary assessment of the strength of the proposed appeal, whether the appellant has an arguable case;
*the desirability of limiting the frequency and 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 a stay for a short period of time;
*and the best interests of the child, subject to the proceedings.
On behalf of the father, it is submitted that the appeal will proceed without delay; that it can be heard on 25 July 2012, which is 12 days from today; and that the transcript has already been ordered and paid for and that appeal books can be prepared, if the Full Court so requires by the addition, to the existing documents, of the transcript. It is submitted, on behalf of the father, that I am required to weigh the balance of hardship to the mother if a stay is granted, against the prejudice to the father, if it is not.
The father relies upon an affidavit sworn by him today and filed in Court together with an application in a case filed in Court today.
The mother opposes the granting of a stay. She proposes that she should lodge a bond of $20,000 against her return for the purpose of the appeal. It is her submission that the child has been away from home and away from school for almost two months and that his interests require that he be returned as soon as possible both to home and to school. The mother points out that there is no indication when judgment will be delivered by the Full Court and it is her submission, that although she has a child in boarding school in Perth, it cannot be said that there is a tie for her with Australia.
In balancing the arguments of the father and the arguments of the mother, I take into account the fact that the mother does not seek any orders which would require the father to maintain her in Australia and indeed, that she is in a position to put up a bond of $20,000, indicating to me, that she has the means to support herself for the period of time until the disposition of the appeal.
There is no doubt that there is hardship to the mother, if she is required to remain in Australia and not return to her home. However, in my view, the hardship to the father, which comes about by the real risk that any appeal may be rendered nugatory, if a stay is not granted, is the factor which tips the balance in favour of the granting of a stay and I propose to do so.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 July 2012.
Associate:
Date: 13 July 2012
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