Nemelia and Kenta

[2016] FamCA 39

FAMILY COURT OF AUSTRALIA

NEMELIA & KENTA [2016] FamCA 39

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the applicant mother seeks a stay of final parenting orders pending the outcome of her appeal – Where the orders sought to be stayed relate to the payment of travel for the children to spend time with the father and payment of orthodontic treatment for one of the children – Where there is no real risk that the appeal will be rendered nugatory – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Nemelia

RESPONDENT: Mr Kenta

FILE NUMBER: SYC 5874 of 2011

DATE DELIVERED: 3 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Stevenson

HEARING DATE: 29 January 2016

REPRESENTATION

THE APPLICANT: Ms Nemelia appeared on her own behalf by telephone link

THE RESPONDENT: Mr Kenta appeared on his own behalf

Orders

1. That the mother’s Application in a Case filed on 21 December 2015 and the father’s Response to an Application in a Case filed on 27 January 2016 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nemelia & Kenta 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 5874 of 2011

Ms Nemelia

Applicant

And

Mr Kenta

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 23, 24 and 25 June 2015 I heard the competing applications of the father, Mr Kenta, and the mother, Ms Nemelia, for parenting orders.  The litigation concerned two of the parties’ three children:

   ·          F born on in 2000; and

   ·          W born in 2003.

   The parties’ third child, Mr B, turned 18 years of age in early 2015.  I made orders and delivered written Reasons for Judgment on 21 July 2015.

2. On a date unknown to me the mother filed a Notice of Appeal which was apparently amended pursuant to an order made on 18 November 2015.  It appears that the mother appeals against Orders 6(a), 6(b), 6(c), 22(a) and 22(b) made on 21 July 2015.  These orders provided as follows:

   (6)The parties will share the costs of the children’s return travel to Sydney pursuant to paragraph 4 of these orders in the following manner:

   (a)the father will purchase the tickets for the first trip the children make following the date of these orders and the tickets for each alternate trip thereafter;

   (b)the mother will purchase the tickets for the second trip the children make following the date of these orders and the tickets for each alternate trip thereafter; and

   (c)each parent will provide the other with the children’s tickets seven (7) days prior to the departure date.

   …

   (22)Both parties will do all things necessary to cause [F] to attend all orthodontic appointments deemed necessary by [Dr C] in Sydney provided that:

   (a)the parties will each pay for one half of [F’s] airfares; and

   (b)the father will use his best endeavours to ensure that B’s appointments with [Dr C] take place while he is in the care of the father in Sydney pursuant to these orders.

1. On 21 December 2015 the mother filed an Application in a Case, by which she sought a stay of the above specified orders.  On 27 January 2016 the father filed a purported Response to an Application in a Case, by which he sought an order “The mother to post a bond to the Court in the event she further contravenes these orders.”  A hearing date of 29 January 2016 was allocated to the mother’s stay application.

The evidence

1. The mother filed affidavits sworn on 11 December 2015 and 20 January 2016.  She made reference to several matters which occurred after the trial and the orders of 21 July 2015.  The father also referred to a number of events which occurred after the July 2015 orders in his affidavit of 27 January 2016.  To a significant extent, the mother sought to re-litigate issues which I had determined by way of the orders of 21 July 2015.  The father sought to raise fresh matters of dispute in his material.

Consideration

1. I am of the view that there is no real risk that a denial of a stay will render the mother’s appeal nugatory.  She seeks to rearrange provision for payment of F’s airfares and to alter the place of his dental treatment from Sydney to the E Region.  It is most unfortunate that the mother is choosing to ignore the orders of 21 July 2015 but that is a matter which I cannot rectify in the context of the hearing of a stay application.

2. The contents of the mother’s Notice of Appeal do not provide much by way of assistance with an assessment of the merits of her challenge to the orders of 21 July 2015.  I was not provided with any information as to the likely timeframe for the hearing of the mother’s appeal.

3. It is extremely regrettable that F’s dental treatment is being compromised but, as noted, I cannot remedy that situation by way of the granting or refusal of a stay.  Obviously, F’s best interests would dictate that he receive appropriate treatment forthwith but I am powerless to rectify that situation in the present context.

4. For these reasons I will dismiss the mother’s Application in Case filed on 21 December 2015.  I will also dismiss the father’s purported Response to an Application in a Case filed on 27 January 2016.  The father, of course, is entirely at liberty to make an application which he may see fit in a Duty List in the usual manner.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 3 February 2016.

Associate: 

Date:  3 February 2016