FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McGowan & Hahn (No 2) [2024] FedCFamC1F 528
File number: PAC 2445 of 2018 Judgment of: CHRISTIE J Date of judgment: 1 August 2024 Catchwords: FAMILY LAW – APPLICATION FOR STAY – EX TEMPORE – Where appeal has been filed – Where father has sole parental responsibility – Where there is no basis upon which to order a stay – Where there is a significant delay in filing an appeal and application for stay – Where final orders provided for a moratorium of time based on the single expert’s evidence to assist in transitioning to another household – Where delay in bringing the application is material – Where it would be adverse to the child’s interests to order a stay – Where granting stay would interrupt the child’s period of stability – Where applicant did not discharge the onus to grant a stay – Application dismissed. Legislation: Australian Passports Act 2005 (Cth) s 7 and s 11
Family Law Act 1975 (Cth) ss 62, 65DA, 65Y, 68B
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
House v The King (1936) 55 CLR 499
Trahn & Long (No.2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 1 August 2024 Place: Sydney Counsel for the Applicant: Ms Breeze Solicitor for the Applicant: Somerville Legal Counsel for the Respondent: Mr Finch Independent Children's Lawyer: Ms Karagiannis ORDERS
PAC 2445 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAHN
Applicant
AND: MR McGOWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.The application filed 29 July 2024 is dismissed.
2.Costs are reserved.
3.The respondent’s solicitors have liberty to re-list the application for costs filed on 22 July 2024 by arrangement with chambers after determination of the appeal.
4.The listing on 4 September 2024 is vacated.
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 McGowan & Hahn has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for a stay pending appeal.
The proceedings relate to a child, X born 2017.
On 24 June 2024 I made final orders as follows:
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CaseChat Overview and Summary
The legal issues before the court involved assessing the delay in filing the appeal and the application for a stay, the strength of the proposed appeal, the best interests of the child, and the desirability of limiting changes to the child's living arrangements. The court had to balance these factors against the rights of the parties and the risk that the appeal might be rendered nugatory if a stay was not granted.
The court found that the delay in filing both the appeal and the application for a stay was material and unjustified. Furthermore, it found that granting a stay would be adverse to the child's interests as it would interrupt her period of stability. The mother had not discharged the onus to establish a proper basis for the stay, and there was no exceptional or special circumstance that would warrant a stay. The court concluded that the best interests of the child, X, would be served by maintaining the current arrangements and denying the stay.
The court dismissed the application for a stay, reserved costs, and allowed the respondent's solicitors to re-list the application for costs after the determination of the appeal. The listing on 4 September 2024 was vacated.
Orders
Orders of the court
PAC 2445 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS HAHN
Applicant
AND:
MR McGOWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1. The application filed 29 July 2024 is dismissed.
2. Costs are reserved.
3. The respondent’s solicitors have liberty to re-list the application for costs filed on 22 July 2024 by arrangement with chambers after determination of the appeal.
4. The listing on 4 September 2024 is vacated.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
They are as outlined in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18] and in Trahn & Long (No.2) [2008] FamCAFC 194 where the Full Court, having reviewed the jurisprudence, set out the following relevant principles at [38]:•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 of 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 the subject of the proceedings.CONSIDERATION On 24 June 2024 X came into the care of her father. The evidence suggests she has remained in his care in a household comprised of the father, his partner and their daughter HH. X would have been due to commence a new school this week or last week. The evidence does not establish whether that is the case. The mother’s counsel submits and I accept that at the time of hearing X was well settled at school and performing well. X had a close relationship with the mother and extended maternal family. It was submitted that there is relevance to be attached to the fact that X was unable to farewell her family and her friends. The fact that the decision was implemented without the opportunity to have farewells while unfortunate was intentional and designed to assist X’s transition. It is not a basis on which to order a stay. The final Orders did not provide for time with extended family, but as has been observed, there was no application before the court for orders. This is neither a matter touching on the merits of an appeal or a basis upon which to order a stay – although I accept it is a change in circumstances for X. No appeal was filed until the last day on which such an appeal could be filed (22 July 2024) and no application for stay was filed for a further week, being filed 29 July 2024. That application has been listed expeditiously. There is no explanation in the appellant’s affidavit material to explain why no action was taken expeditiously and yet the material now urges urgency upon the court.