FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Samaras & Allen [2021] FedCFamC1F 20
File number(s): SYC 5524 of 2017 Judgment of: HARPER J Date of judgment: 6 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – APPEAL – STAY – Application for a stay of interim parenting orders – Where notice of appeal and application for expedition has been filed – In circumstances where the primary judge was unavailable – Where application for a stay has been heard by a different judge – Where mother makes allegations of risk – Where Family Consultant considers risk to be a central issue – In circumstances where father has a criminal history – Where father has not been charged since 2012 – Where mother submits there would be a disruption of the child’s routine absent a stay – Where disruption would only occur if the appeal succeeds – Where mother argues her appeal would be rendered nugatory absent a stay – In circumstances where the parents have equal shared parental responsibility – Issue of substantial and significant time considered – Balance of convenience considered – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 65D(2), 65DAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191)
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635
Pointer & Cheadle [2020] FamCA 327
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 67 Date of hearing: 3 September 2021 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers Counsel for the Independent Children's Lawyer: Mr Maddox Solicitor for the Independent Children's Lawyer: John Spence & Associates ORDERS
SYC 5524 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALLEN
Applicant
AND: MR SAMARAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
6 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The mother’s Application in a Case filed on 1 September 2021 be dismissed.
2.All questions of costs be reserved.
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…
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CaseChat Overview and Summary
In the Family Court of Australia, Samaras & Allen was heard by Justice Smith, involving a dispute over parenting arrangements and the application for a stay of certain orders. The mother applied for a stay of certain orders made in August 2021 pending an appeal. The mother sought the stay of Orders 2 and 3, which pertain to the father's time with the child, while the father opposed the application and sought costs. The Independent Children's Lawyer did not rely on any additional material beyond what was submitted by the parties. The central legal issue was whether the court should grant a stay of the August 2021 orders pending the outcome of the mother's appeal. This required consideration of the principles governing the grant of such a stay, including the balance of convenience, the best interests of the child, and the likelihood of the appeal succeeding.
Justice Smith examined the principles established in Aldridge & Keaton (Stay Appeal) and other relevant case law. The court noted the onus was on the mother to demonstrate a proper basis for the stay, considering factors such as the best interests of the child, the likelihood of the appeal succeeding, and the desirability of maintaining the status quo. The court found that the mother had not demonstrated that the interim orders proposed in her application would provide the child with substantial and significant time with the father, as required by the Act. Furthermore, the court considered that the existing November 2019 orders, which provided for the child to spend substantial time with the father, were no longer workable and did not satisfy the legal requirements. The court concluded that the mother had not shown that a stay was in the child's best interests.
Accordingly, Justice Smith dismissed the mother's application for a stay of the August 2021 orders. The court found that the refusal of the stay would not significantly disrupt the child's routine and that the grant of a stay was not in the child's best interests. The court reserved the issue of costs pending further submissions. This decision highlights the importance of demonstrating that any interim orders proposed during an appeal will meet the legal requirements and be in the best interests of the child.
Justice Smith examined the principles established in Aldridge & Keaton (Stay Appeal) and other relevant case law. The court noted the onus was on the mother to demonstrate a proper basis for the stay, considering factors such as the best interests of the child, the likelihood of the appeal succeeding, and the desirability of maintaining the status quo. The court found that the mother had not demonstrated that the interim orders proposed in her application would provide the child with substantial and significant time with the father, as required by the Act. Furthermore, the court considered that the existing November 2019 orders, which provided for the child to spend substantial time with the father, were no longer workable and did not satisfy the legal requirements. The court concluded that the mother had not shown that a stay was in the child's best interests.
Accordingly, Justice Smith dismissed the mother's application for a stay of the August 2021 orders. The court found that the refusal of the stay would not significantly disrupt the child's routine and that the grant of a stay was not in the child's best interests. The court reserved the issue of costs pending further submissions. This decision highlights the importance of demonstrating that any interim orders proposed during an appeal will meet the legal requirements and be in the best interests of the child.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The mother made clear in her submissions that despite the orders proposed in her Case Outline, she sought a stay only of Orders 2 and 3 of the August 2021 orders.EVIDENCE RELIED UPON The mother provided a short Case Outline and relied on the following material:(a)Application in a Case filed 1 September 2021 (“the Stay Application”), substituted by the Minute of Order set out in her outline of submissions;(b)Affidavit of the Mother filed 1 September 2021;(c)Family Report of Dr D dated 13 October 2020; and(d)Reasons for Judgment dated 26 August 2021 (“Reasons”). The father relied on his Response to an Application in a Case filed on 3 September 2021, and his Affidavit filed on 3 September 2021. The Independent Children’s Lawyer (“ICL”) did not rely on any material beyond that relied on by the other parties. All parties and the ICL made oral submissions.DISCUSSION The power to make an application for a stay pending an appeal is found in Rule 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), which came into effect on 1 September 2021. The power to grant such a stay is well recognised in this Court. Rule 13.12(3) requires the application to be made to the judge whose orders are the subject of appeal, unless they are unavailable. Henderson J was unavailable, so it falls to me to determine the mother's urgent application. The principles governing a stay pending appeal are well settled. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge”), the Full Court noted at [17] that an appeal from parenting orders is subject to well established principles on the limits on interference by an appellate court with a discretionary judgment: House v The King (1936) 55 CLR 499. A different view by an appellate court, only on matters of weight, by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519). The Full Court in Aldridge (supra) set out the following relevant principles relating to an application for a stay of parenting orders: (a)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 any "special" or "exceptional" circumstances;(b)A person who has obtained a judgment is entitled to the benefit of that judgment;(c)A person who has obtained a judgment is entitled to presume the judgment is correct;(d)The mere filing of an appeal is insufficient to grant a stay;(e)The bona fides of the applicant;(f)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;(g)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 a stay;(h)Some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;(i)The desirability of limiting the frequency of any change in a child's living arrangements;(j)The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and(k)The best interests of the child the subject of the proceedings are a significant consideration.
Decision
Reasons for decision
The August 2021 orders provide for substantial and significant time. I am not satisfied that the interim orders proposed by the mother in her Application in a Case filed on 1 September 2021 accords substantial and significant time between the child and the father. More importantly perhaps, as already noted above, the mother contended that the November 2019 orders can simply govern the position pending appeal if a stay is granted and no other orders are made. But those orders have become close to unworkable. It is not clear the residual operation of those orders could satisfy the definition of substantial and significant times in s 65DAA(3) of the Act.CONCLUSION I have given consideration to the mother’s concerns in this matter, namely her arguments that the child would be placed at risk and there would be a disruption to the child’s routine, should I refuse her application for a stay of the August 2021 orders. The mother raised the possibility of risk to the child due to the father’s criminal history, including his conviction for firearms offences and subsequent charges for supplying drugs. However, I accept the submission of the ICL that there remains limited cogent evidence of the father’s involvement in criminal activity past 2012, although he remains a person of interest to the police. I am unable, in delivering judgment on a stay application, to form any view of risk other than to consider the opinions presented to me. I do, however, note that the November 2019 consent orders provided for the child to spend 58 hours per week with the father. The mother contends these orders can continue to govern the father’s time with the child, but in my view this is not correct. I am not satisfied that there would be a detrimental change to the child’s routine if a stay is refused and the appeal succeeds. The disruption of this routine will only occur should the appeal succeed. If a stay is ordered, and the appeal fails, the child would suffer a change in parenting arrangements anyway. Finally, I do not accept that if a stay is granted or even if the mother’s proposed interim orders were made pending appeal, the child would be afforded substantial and significant time with the father. I am satisfied the grant of a stay is not in the child’s best interests. Accordingly, I dismiss the mother's Application in a Case filed 1 September 2021. The father by his Response to the Application in a Case seeks costs. I have received no submissions on costs. I will reserve costs.
Ratio Decidendi
Legal Principle Established
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