FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pressner & Lennart (No 2) [2024] FedCFamC1F 900
File number(s): SYC 6080 of 2022 Judgment of: BOYLE J Date of judgment: 23 December 2024 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE – Application for stay pending appeal – Where the father seeks orders for the stay of final orders made on 16 December 2024 permitting the mother to relocate with the children to the United Kingdom – Where this is opposed by the mother – Orders made for a stay of the final orders Legislation: Family Law Act 1975 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Cape & Cape (2013) 50 Fam LR 1
Jennings & Jennings [2021] FedCFamC1F 314
Trahn & Long (No 2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 20 December 2024 Place: Sydney Solicitor for the Applicant: Barker Evans Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
SYC 6080 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PRESNER
Applicant
AND: MS LENNART
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.Orders 1 to 27 of the Orders made on 16 December 2024 are stayed until further Order.
2.Either party may remove the children X born in 2012 and Y born in 2018 from the Commonwealth of Australia, only for the purpose of a holiday over the forthcoming New South Wales school holiday period.
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).
EX TEMPORE REASONS FOR JUDGMENT
BOYLE J:
This is the father's application for a stay of final parenting orders. Judgment was delivered on 16 December 2024 with respect to the two children, X and Y, which permits the mother to relocate the children's residence to the United Kingdom.
MATERIAL RELIED UPON
The father relies on an Application in a Proceeding filed on 17 December 2024. He also filed a Notice of Appeal on 18 December 2024. There are two affidavits in support of his application, dated 17 and 18 December 2024. The father has also provided a Case Outline Document.
The…
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- AGLC
- Pressner & Lennart (No 2) [2024] FedCFamC1F 900
- Case
- [2024] FedCFamC1F 900
- Decision Date
CaseChat Overview and Summary
The court considered the best interests of the children to be a significant consideration, though not the paramount one in this instance. The father had acted promptly in filing the application for the stay, an appeal, and an application for expedition. The court accepted the father's bona fides and that he had acted on his perception of the children's best interests throughout the proceedings. The court found that the father had an arguable case for appeal, given the seriousness of the international relocation and the potential for significant change in the children's living arrangements. The court was also mindful of the desirability of limiting the frequency of change in children's living arrangements.
The court granted the application for a stay of the final orders, stating that orders 1 to 27 of the Orders made on 16 December 2024 are stayed until further order. The court also permitted either party to remove the children from the Commonwealth of Australia for the purpose of a holiday over the forthcoming New South Wales school holiday period. The form of the order is subject to the entry in the Court’s records.
Orders
Orders of the court
SYC 6080 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR PRESNER
Applicant
AND:
MS LENNART
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1. Orders 1 to 27 of the Orders made on 16 December 2024 are stayed until further Order.
2. Either party may remove the children X born in 2012 and Y born in 2018 from the Commonwealth of Australia, only for the purpose of a holiday over the forthcoming New South Wales school holiday period.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The best interests of the children a significant consideration, but in this instance not the paramount consideration. CONSIDERATION In this matter, there is no question that the father has acted promptly in filing the application for the stay, in filing an appeal, and in making an application for expedition, which is before the Full Court later today. I accept the father's bona fides, that throughout these proceedings he has acted on his perception of the children's best interests and that he continues to do so with respect to the appeal and the stay application. The length of time for an appeal to be heard is four to six months if it is not expedited, so that is the longest timeframe likely. It could be considerably less than that if expedited. Precise timing, of course, is not known. In terms of whether the appeal may be rendered nugatory if a stay is not granted, I accept the mother would return with the children from Australia if required to do so, if an appeal was successful. The problem in this case goes to the changes required by the orders that have been made. These two children would be moving to the UK, back to a country they have lived in before, but not a home or a place they have lived in before. That entails a change of school for both of them. Whilst I accept X is soon to be starting high school, which is a change here in Australia, it is a significant matter to move home between countries and to move schools, make new friends, and all that goes with it. The mother would be giving up rental accommodation. There would need to be school enrolments finalised for the children to have places at school. They would be starting not at the start of a school year but in the middle of one. From Y's perspective, this is less significant on the facts as I found them, than it is for X. For X, it is a significant time for her. She has already expressed resistance at returning to the UK. To be put in a situation where she is leaving Australia on a basis that it may not be permanent, depending on the outcome of the appeal, would put her in an extraordinarily difficult emotional situation. Those matters take into account some of the other factors, such as the desirability of limiting the frequency of change in children's living arrangements. In an international relocation, the change is significant, and I am very mindful of that. The court must also consider the strengths of the proposed appeal and whether the father has an arguable case. It is trite to say that an arguable case is not a terribly high bar. It is not winnable. It is not compelling. It is just arguable. This is a discretionary judgment that is being appealed. The father has pointed to various findings made, whether those findings were available and whether those findings, if incorrect, infected the logic of the judgment. It would be difficult for me in these circumstances to say that it is not arguable. It is always difficult to make assessments of one's own decision. Given the seriousness of the move, it seems to me there is an arguable case.