Newett & Newett (No 3)
[2022] FedCFamC1F 599
•17 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Newett & Newett (No 3) [2022] FedCFamC1F 599
File number(s): BRC 2179 of 2018 Judgment of: BAUMANN J Date of judgment: 17 August 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Stay – Conditions imposed pending determination of the mother’s appeal Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge & Keaton [2009] FamCAFC 106 Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 17 August 2022 Place: Brisbane Solicitor for the Applicant: Damien Greer Lawyers The First Respondent: Litigant in person The Second Respondent: Litigant in person Independent Children's Lawyer: Mr A Kingston, Norman & Kingston ORDERS
BRC 2179 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NEWETT
Applicant
AND: MS NEWETT
First Respondent
MS ADLAM
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
17 AUGUST 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That pending the determination of the mother’s appeal against the final parenting Orders made 8 July 2022:
(a)the children, X born in 2011, Y born in 2013 and Z born in 2014 (“the children”) shall communicate with the mother by telephone or FaceTime on the following basis:
(i)There shall be one (1) call per week as agreed, and failing agreement at 6.00pm each Sunday;
(ii)The call shall be for no longer than thirty (30) minutes in duration; and
(iii)The father shall be entitled to have the call on speakerphone but shall not interrupt or record the telephone conversation.
(b)Order 13 of the Orders dated 8 July 2022 be stayed; and
(c)the father be restrained from removing the children from the Commonwealth of Australia.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Newett & Newett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
The application today can be found in the amended Application in a Proceeding filed by the mother, Ms Newett, on 18 July 2022. The Application arises as a result of final Orders made by the Court in published Reasons on 8 July 2022, and the subsequent appeal by the mother to the Full Court. I am informed today that the appeal has been listed before the Full Court for hearing on 29 September 2022, which is admirably only about six to seven weeks away. Hopefully it will proceed on that day.
When a Court has made a final order, the authorities and the law make it clear that a person who has obtained a judgment is entitled to the benefit of that judgment; a person who has obtained a judgment is entitled to presume the judgment is correct; and that a mere filing of an appeal is insufficient to grant a stay. However, this principle and the overarching principle about the best interests of the children the subject of the proceedings are of significant consideration, although not a paramount consideration, as is the case in parenting orders per se (see Aldridge & Keaton [2009] FamCAFC 106).
The Court can consider whether there can be terms upon which a stay can be granted that is fair to all the parties and to the children. The Court is required to consider if an appeal will be rendered nugatory if a stay is not granted, and this will be a substantial factor in determining whether it will be appropriate to grant a stay.
Although some preliminary assessment of the strength of the proposed appeal can be undertaken, in a case like this, with the history of this matter, it is not possible for me to say whether the mother does or does not have an arguable case. From my perspective, many of the matters raised by the mother in the appeal were dealt with in my Judgment, but I am prepared for the sake of this hearing today to accept that the mother is genuine in her beliefs and arguments and that she believes she has an arguable case on appeal.
The context for the stay application must be what was in place prior to the orders being made by me, finally, on 8 July 2022, and as the Reasons so published reveal, sadly, as is expressed in multiple occasions during those Reasons, the children were not spending physical time with the mother at the time of the final Orders. The only contact the children were having with the mother was telephone time. The only contact they were having with the grandmother, Ms Adlam, who is a party to the initial proceedings – and although she has not filed anything in respect of the stay, I have listened to her concerns and taken them into consideration – was telephone time when the mother was communicating with the children.
Accordingly, the orders that I made that provide for the time the children are to spend with the mother at a contact centre need not be stayed. It is a matter for the mother whether she seeks to undertake those Orders or not. In my view, there are only two aspects of the stay application which require some determination. They are as follows, and the reasons for my orders today will follow.
Firstly, telephone time. As the Reasons delivered 8 July 2022 make clear, the mother was having regular telephone time with the children – who, for the sake of the record, I record as being X, who is now 11 years of age; Y, who is now nine years of age; and Z, who is now eight years of age.
The mother was not, at that time, spending any physical time with the children, supervised or otherwise, as is set out in the Reasons. Although the Orders do not make any provision for telephone time, and that is explained in my Reasons, the mother asked that pending the appeal, in effect, telephone time be reinstated so that she may speak to the children daily. The maternal grandmother Ms Adlam also wishes to speak to the children. Ms Adlam tells me from the bar table orally this morning that attempts by her to facilitate some contact with the children – and, in particular, Z around her birthday – had failed. I accept that lack of time between the children, the mother and the grandmother, even by telephone, is distressing to the mother, the grandmother, and has been a significant change to what was in place up until the final Orders were made, for the children.
Accordingly, bearing in mind that I can and should not be seen, nor am I, making any finding that the mother’s appeal has no prospects of success – the major change, in fact, the only change to the children from their perspective, to what was in existence at the time the Orders were made to now, is that they were not having telephone time with the mother because the Orders made 8 July 2022 did not specify telephone time. In the exercise of my discretion, I propose to make an order on the stay application – although not properly sought by the mother in her say application, in my view, but I think from the mother’s oral submission what she was seeking was that telephone time be resumed. On this basis, pending determination of the appeal, the children shall communicate with the mother by telephone or FaceTime on the following basis:
(a)There shall be one call a week, as agreed, and failing agreement, at 6.00pm each Sunday;
(b)The call shall be no longer than 30 minutes; and
(c)The father shall be entitled to have the call on speakerphone but shall not interrupt or record the telephone conversation.
The other issue which I propose to deal with is the mother’s concern, notwithstanding what the father’s solicitor Mr Armstrong says, about the rights the father has in relation to travel overseas. Mr Armstrong says that he believes it may have been a matter that provoked the mother’s concerns that the passports that the children had, perhaps expired, have been returned to the father. If they are expired, then an application for a new passport would need to be made. That is dealt with at Order 13 of my final Orders. To provide some greater certainty that these children shall not be removed from the country before the Appeal is dealt with, I will stay order 13 of the final Orders.
There are no orders that make provision for overseas travel, although I accept that, as the father has, under my final Orders, sole parental responsibility for the major long-term issues of the children, the father could remove the children from the country for a holiday or more permanently, without notice to the mother. There is no evidence he has ever sought to do so. However, for an abundance of caution, I propose to order, pending the appeal being determined, that the father be restrained from removing the children from the Commonwealth of Australia pending determination of the appeal.
They are the only orders I propose to make today. I will publish my reasons.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 26 August 2022
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