Kerimowa & Chong (No 2)

Case [2025] FedCFamC1F 395

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kerimowa & Chong (No 2) [2025] FedCFamC1F 395   

File number(s): PAC 2709 of 2023
Judgment of: ANDERSON J
Date of judgment: 17 June 2025
Catchwords: FAMILY LAW – APPLICATION FOR A STAY OF FINAL PARENTING ORDERS – Where appeal has been filed – Where it would be adverse to the children’s interests to order a stay - Refusal to grant a stay pending determination of substantive parenting appeal – Application dismissed.
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

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621

Cantrell & North & Anor (2019) FLC 93-921; [2019] Fam CAFC 127

Clemett & Clemett (1981) FLC 91-013

Kerimowa & Chong [2025] FedCFamC1F 277

Navickas & Fried [2024] FedCFamC1A 248

Zyma & Begum [2025] FedCFamC1A 11

Division: Division 1 First Instance
Number of paragraphs: 32
Date of hearing: 10 June 2025 
Place: Parramatta
Counsel for the Applicant: Ms Bateman
Solicitor for the Applicant: Tee Legal
Counsel for the Respondent: Mr Ng
Solicitor for the Respondent: Adams & Partners Lawyers
Solicitor for the Independent Children's Lawyer: Ms Wilkins of Phillip A Wilkins & Associates

ORDERS

PAC 2709 of 2023

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

MS CHONG

Applicant
AND:

MR KERIMOWA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

17 JUNE 2025

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed on 12 May 2025 is dismissed.

2.The costs of the father and the Independent Children’s Lawyer are reserved.

3.Any application for costs together with an affidavit in support shall be filed within twenty-eight (28) days after the determination, withdrawal or abandonment of the appeal in relation to the Orders made on 1 May 2025.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ANDERSON J

INTRODUCTION

  1. These reasons explain the dismissal of the mother’s Application in a Proceeding filed on 12 May 2025 seeking an order for the stay of orders made by me on 1 May 2025 pending the determination of her appeal.

    BACKGROUND

  2. The parties to these proceedings are…

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Kerimowa & Chong (No 2) [2025] FedCFamC1F 395
Case
[2025] FedCFamC1F 395
Decision Date

CaseChat Overview and Summary

In the matter of Kerimowa & Chong (No 2), the mother sought to stay the final parenting orders made by Anderson J on 1 May 2025, pending the determination of her appeal against those orders. The appeal was filed on 29 May 2025, following the trial of the father’s proceedings under Part VII of the Family Law Act 1975 (Cth). The final orders included provisions for the father to have sole parental responsibility, a six-month moratorium on the children spending time with the mother, and limited supervised contact thereafter. The mother’s application for a stay, filed on 12 May 2025, also sought the reinstatement of earlier orders that had been set aside. The father opposed the stay application, arguing that it would be adverse to the children's interests.

The court had to determine whether to exercise its discretion to stay the operation of the appealed orders under Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court considered the principles outlined in Zyma & Begum [2025] FedCFamC1A 11, which require a real risk that the appeal would be rendered nugatory if the orders were not stayed. The court also weighed the welfare of the children, the likelihood of the appeal succeeding, and the desirability of limiting residential changes. Anderson J found that the appeal did not demonstrate a sufficient risk of rendering the appeal nugatory, and that ordering a stay would likely be adverse to the children’s interests. The court noted the importance of stability for the children, given the recent changes in their living arrangements.

Anderson J dismissed the mother's application for a stay, concluding that the appeal did not meet the necessary criteria for a stay pending appeal. The court also rejected the mother's request to reinstate the earlier orders that had been set aside. The costs of the father and the Independent Children’s Lawyer were reserved, with any application for costs to be filed within 28 days after the determination, withdrawal, or abandonment of the appeal. This decision ensures that the children's welfare remains a paramount consideration, and that any changes to their living arrangements are made with their best interests in mind.

Orders

Orders of the court

PAC 2709 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CHONG

Applicant

AND:

MR KERIMOWA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

17 JUNE 2025

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed on 12 May 2025 is dismissed.

2. The costs of the father and the Independent Children’s Lawyer are reserved.

3. Any application for costs together with an affidavit in support shall be filed within twenty-eight (28) days after the determination, withdrawal or abandonment of the appeal in relation to the Orders made on 1 May 2025.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons explain the dismissal of the mother’s Application in a Proceeding filed on 12 May 2025 seeking an order for the stay of orders made by me on 1 May 2025 pending the determination of her appeal.BACKGROUND The parties to these proceedings are the parents of two children, now aged ten years and eight years. The father commenced proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the children on 30 May 2023. A trial occurred on various dates between 10 March 2025 and 29 April 2025. At the conclusion of the trial, I reserved my judgment. On 1 May 2025, I delivered my decision and reasons.[1][1] Kerimowa & Chong [2025] FedCFamC1F 277. Among other things, the final parenting orders made by me include orders that:(a)The father have sole parental responsibility and sole decision-making authority for the children;(b)On the delivery up of the children to the Court Children’s Service on 1 May 2025 the children not spend time with the mother for a period of six months (“the moratorium period”); and(c)On completion of the moratorium period, the children spend time with the mother on one occasion in December 2025 and thereafter, on four occasions in each calendar year. The mother appealed from those orders on 29 May 2025 (“the appeal”). Prior to the filing of the Notice of Appeal, and on 12 May 2025, the mother filed an Application in a Proceeding seeking a stay of my orders. Simultaneously, the mother sought an order that the children live with her and that orders made by a Senior Judicial Registrar on 1 August 2023 be reinstated. Those orders provide for the children to live with the mother and spend supervised time with the father on a fortnightly basis at a contact centre. By his Response to an Application in a Proceeding filed on 19 May 2025, the father invites me to dismiss the mother’s application. The application was promptly listed for hearing on 21 May 2025. However, the Independent Children’s Lawyer with the consent of the parties sought an adjournment of the hearing in circumstances where despite filing an application for a stay of my orders, the mother had not filed a Notice of Appeal. The application was re-listed for a hearing on 10 June 2025.EVIDENCE The mother relied on the following:(a)An Application in a Proceeding filed on 12 May 2025; and(b)Affidavits in the name of the mother filed on 12 May 2025 and 6 June 2025. The affidavit filed on 6 June 2025 was filed without leave of the Court. However, neither the father nor the Independent Children’s Lawyer opposed my receipt of that evidence. The father relied on the following:(a)A Response to an Application in a Proceeding filed on 19 May 2025;(b)An affidavit in the name of the father filed on 19 May 2025; and(c)An Outline of Case Document filed on 19 May 2025.APPLICABLE LAW Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides parties with the opportunity to apply for a stay of an order of the Court pending the outcome of an appeal.

Evidence

Evidence Before The Court

The application was promptly listed for hearing on 21 May 2025. However, the Independent Children’s Lawyer with the consent of the parties sought an adjournment of the hearing in circumstances where despite filing an application for a stay of my orders, the mother had not filed a Notice of Appeal. The application was re-listed for a hearing on 10 June 2025.EVIDENCE The mother relied on the following:(a)An Application in a Proceeding filed on 12 May 2025; and(b)Affidavits in the name of the mother filed on 12 May 2025 and 6 June 2025. The affidavit filed on 6 June 2025 was filed without leave of the Court. However, neither the father nor the Independent Children’s Lawyer opposed my receipt of that evidence. The father relied on the following:(a)A Response to an Application in a Proceeding filed on 19 May 2025;(b)An affidavit in the name of the father filed on 19 May 2025; and(c)An Outline of Case Document filed on 19 May 2025.APPLICABLE LAW Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides parties with the opportunity to apply for a stay of an order of the Court pending the outcome of an appeal. As the judge who made the order under appeal, I have jurisdiction to hear and determine the application for a stay of the final orders. The principles relating to applications for a stay of orders are those described by Austin J in Zyma & Begum [2025] FedCFamC1A 11 at [15] to [16], as follows:15. The discretion to stay the operation of appealed orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)[1986] HCA 13; (1986) 160 CLR 220 at 222–223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1)[1986] HCA 84; (1986) 161 CLR 681 at 685).16. Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments in parenting proceedings (JRN & IEG[1998] HCATrans 263; (1998) 72 ALJR 1329; 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]). In relation to the proposed stay of appealed parenting orders, the welfare of the child is now considered a significant, but not the paramount, consideration. Residential changes should desirably be limited as far as reasonably possible. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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