Livvy & Kash (No 3)
[2024] FedCFamC1F 913
•3 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Livvy & Kash (No 3) [2024] FedCFamC1F 913
File number(s): BRC 16626 of 2021 Judgment of: BAUMANN J Date of judgment: 3 December 2024 Catchwords: FAMILY LAW – APPLICATION FOR STAY –Where appeal and cross appeal has been filed – Where there is no basis upon which to order a stay Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
House v The King [1936] HCA 40-55 CLR 499
Livvy & Kash [2023] FedCFamC1F 1014
Livvy & Kash (No 2) [2024] FedCFamC1F 697
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 3 December 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Litigant in person Solicitor for the Second Respondent: O’Hare Law Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor ORDERS
BRC 16626 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LIVVY
Applicant
AND: MR MENZIES
First Respondent
MS KASH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That the Application in a Proceeding filed 20 November 2024 be 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).
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 the pseudonym Livvy & Kash has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
On 22 October 2024, the Court made some final parenting orders in this matter relating to a child, X. The history of X’s care is set out in the Reasons for Judgment (see Livvy & Kash (No 2) [2024] FedCFamC1F 697.
It has always been the paternal grandmother’s view that the child is at risk in the care of the mother, both in respect of drug use, the mother’s criminal record, the mother’s mental health and a reflection of earlier school performance.
The Reasons for Judgment, which built on earlier reasons (see Livvy & Kash [2023] FedCFamC1F 1014), identified and analysed the expert evidence that was available to the Court from Dr W, a consultant psychiatrist; the child's treating psychiatrist, Dr N; and the family report writer, Ms D, who had provided two reports, in which she, for reasons she gave - and which she was the subject of proper and concentrated cross-examination - found in favour of a change of residence.
The effect of the order is that X would, unless stayed, commence living with the mother and her siblings in approximately a week’s time. So as to settle the child down during the school holiday period, the Court ordered that the child remain in the care of the mother, save for one period of one week which is to be spent with the maternal grandmother and the father.
Regrettably it seems that, despite Order 4 made by me, the intention for the effect of the orders to be explained to the child by the report writer did not come into effect; I cannot deal with that today. It is disappointing, as it was intended that the child have a balanced explanation of the Reasons the Court made the order it has.
APPLICATION TO STAY ORDERS
As she was perfectly entitled to do, the maternal grandmother, on the 18 November 2024, filed an Appeal. The Appeal, I accept, is prepared by the maternal grandmother as an unrepresented litigant.
It may be, if she is able to obtain legal advice - and she certainly hopes to do so - that the Grounds of Appeal might be amended so as to more clearly identify what is said to be appellate grounds. It seems, from a reading of the Grounds of Appeal that some aspects of the trial are criticised by the maternal grandmother (see ground 11), and other procedural issues which relate to the way the trial was conducted before me.
On 20 November 2024, the maternal grandmother filed her application seeking a stay of the filed orders. The stay is supported by X’s father, Mr Menzies, being the second Respondent in these proceedings who, although he has not filed any affidavit in support of the Application for a stay, does support it. He tells me and I accept that he has filed a further Appeal in respect of the decision made on 22 October 2024. It is not clear whether that has been filed, but, nonetheless, I am acutely aware that the grandmother and her son, the father of X, strongly oppose the orders I have made.
Legal principles
I had the benefit of written submissions by Mr O’Hare, solicitor for the mother, and by the Independent Children’s Lawyer, Ms Harrington, who have identified the appropriate principles that need to be considered when the Court is considering an Appeal.
I propose to deal with them now seriatim. They are most easily found in the decision of the Full Court in the decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106.
Firstly, the onus is on the Applicant to establish a proper basis for the stay. However, it does not have to be in circumstances that could be described as special or exceptional.
The mother who has obtained the Judgment is entitled to the benefit of that Judgment, as the mere filing of Appeal is insufficient to grant a stay.
The mother gives evidence that she has, not surprisingly, considering the terms of the Judgment and the order being made on 22 October 2024, made arrangements for the child to be enrolled at P School, to obtain school uniforms, to engage with the school community when the child comes into her care and to identify possible other therapeutic and psychiatric support for the child.
The mother cannot, and should not, be criticised, based on the fact that she is entitled to rely upon the Judgment, that she has taken steps to make the transition of X to her care as easy as possible for the child.
I have no doubt that the paternal grandmother and the father are bona fide in relation to their Appeal. They can be shown during the trial to have strongly argued against the orders I have made, as one of the competing proposals. As I say, in my view, there are no questions of their bona fides.
The Court is required to weigh up the risk that an Appeal may be rendered nugatory if a stay is not granted. And this is often said to be a substantial factor in determining whether it will be appropriate to grant a stay. Coupled with this consideration is that in a parenting case, as this is, the best interests of X, the subject of these proceedings, are a significant consideration. Furthermore, again, within this genre, the Court is required to consider the desirability of limiting the frequency of any change to a child’s living arrangements.
I propose to deal with those factors as a group, which I regard as the factors which significantly shape the exercise of my discretion. In so doing, I indicate I have given some consideration to the matters otherwise referred to in the beforementioned Full Court decision of Aldridge & Keaton, I find:
(a)That a preliminary assessment of the Notice of Appeal would suggest that it could not be described as a strong Appeal. Whilst the grandmother said she had legal advice that she had excellent chances of success, and whilst I accept that the Appeal does not and is not articulated in the way Appeals are often articulated, at least at the preliminary level; the analysis by the Independent Children’s Lawyer at paragraph 5 of the written submissions is broadly correct in my view. Namely, that:
(i)Paragraphs 1, 2, parts of 5, 7, 9, 10, 13, 15, 16, 17, 19, 22 and 23, as currently articulated, are not proper grounds of Appeal.
(ii)It is arguable that the complaints set out at paragraphs 5, 7, 8, 11, 14, 18 and 23 were not arguments advanced during the trial and that generally a person is bound by the way their trial was conducted.
(iii)That a number of the grounds assert a failure to give weight in the way that the paternal grandmother says I should have (see grounds 3, 4, 9, 12, 20 and 21). This is a point also adopted by Mr O’Hare for the mother, relying upon the oft-quoted arguments that, in a discretionary Judgment, an application of weight to a fact that is found is a matter that is generally undisturbed at an appeal, relying upon decisions like House v The King [1936] HCA 40-55 CLR 499.
(b)It is also alleged that there may have been a mistaken finding of fact, but whether it was material in the scheme of the matter is a matter for another day. In my view, it is always difficult for a trial judge to assess an Appeal ground, especially one prepared by a disappointed litigant, as Ms Livvy is, but I am comfortable in describing the Grounds of Appeal as not strong.
I have no evidence as to when the appeal may be heard. I identified, with the assistance of the Independent Children’s Lawyer (because this is relevant to the granting of a stay) that the Appeal having only been filed on 18 November might be subject to a timetable such as the following.
(a)A directions hearing before a Registrar in January 2025;
(b)An Appeal hearing in April or May 2025 (unless expedited);
(c)Reasons for Judgment within 30 to 60 days thereafter; and
(d)If remitted for a rehearing to a judge other than myself, there is every reason to suspect that a rehearing would not take place before the end of 2025 by a Division 1 judge in Queensland.
On this hypothetical timetable, therefore, if the orders are not stayed, then the arrangements in place, which of course include time between the child and the grandmother and the father each school term, and for holidays, would be in place for at least 12 months.
CONSIDERATION
As my Reasons for Judgment made clear, I found it was in the best interests of X to live with the mother and her siblings. In so doing, the Court was well aware that that would change the arrangements which had been in place, in the grandmother’s care, at least commencing from a decision made by a Senior Judicial Registrar in July 2022 which caused a significant change of arrangements and which was, during the trial process before me, maintained whilst the child’s relationship with the mother had a chance to be re-created.
The Court was well aware of the issues whereby the mother had - and was properly criticised for - not pursued the time with her daughter in the way that she should have. That was taken into account. The Court was also alive to the very strong criticisms of the mother, which are still maintained by the paternal grandmother and shared by her son, the father.
In consideration of all the factors, it is my decision that the stay application should be dismissed, which means that the orders as they currently exist will continue to be put into force.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 3 February 2025
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