Sarkozy & Sarkozy (No 2)
[2024] FedCFamC1F 620
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sarkozy & Sarkozy (No 2) [2024] FedCFamC1F 620
File number: SYC 4887 of 2021 Judgment of: AUSTIN J Date of judgment: 16 September 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders – Where the applicant seeks a stay of final parenting orders pending determination of her appeal – Where the final orders only introduced two material changes to the parenting arrangements which have prevailed for years – Where there is no proper basis to stay the orders – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, s 61C
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.12
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
JRN & IEG (1998) 72 ALJR 1329; [1998] 16 Leg Rep 16
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No 2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person Solicitor for the Respondent: Graham Chegwidden Solicitor & Barrister (did not participate) Solicitor for the Independent Children's Lawyer: Marsdens Law Group (did not participate) ORDERS
SYC 4887 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SARKOZY
Applicant
AND: MR SARKOZY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 30 August 2024 is dismissed.
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 the pseudonym Sarkozy & Sarkozy (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
On 18 June 2024, the applicant appealed from final parenting orders made between the parents in respect of their children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 21 May 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 1).
The appeal is listed for hearing before the Full Court on 1 October 2024.
On 30 August 2024, the applicant filed an Application in a Proceeding seeking that the appealed orders be stayed until the appeal is heard and determined. In support of the application the applicant relied upon her affidavit filed on 30 August 2024.
The stay application should ordinarily be heard by the primary judge, but his Honour is unable to hear the stay application quickly and, since the appeal hearing is only two weeks hence, the application had to be heard by another judge (r 13.12(3)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The applicant applied for the application to be determined in the absence of the parties in accordance with Pt 5.3 of the Rules, which request is granted.
Background
The parties contested parenting arrangements for the two youngest of their five children, the eldest three children having already attained their majority.
The appealed orders provided for the respondent to have sole parental responsibility for the children, for them to live with him, and for them to spend time with the applicant once every three months under the supervision of another adult or a private supervision service up until each child turns 14 years of age, after which their time with the mother will be in accordance with their individual wishes.
The appealed orders preserved the residential situation established by interim parenting orders made nearly three years before in July 2021. Those orders required the children to live with the respondent but intentionally made no provision for them to either communicate or spend time with the applicant. The orders restrained the applicant from telephoning the children and from entering the respondent’s residential premises.
The appealed orders made in May 2024 only introduced two material changes to the situation which prevailed for years.
First, provision was made for the children to spend time with the applicant, albeit confined and supervised, but that is a change she would perceive to be advantageous.
Secondly, the parental responsibility for the children which was formerly vested jointly in the parents by law (s 61C(1) of the Act) was removed and instead conferred exclusively upon the respondent (s 61C(3) and s 61D), which change the applicant perceives to be disadvantageous.
The premise for the stay order was articulated by the applicant in her affidavit as follows:
2.The basis for a stay would be in fairness to all parties, and the competing rights of the parties, as the Final orders dated 21 May 2024 drastically amend the time, and parental responsibility for the children, of the previous Family court orders dated 27 July 2021, where there were no restrictions for the children to contact and spend time, with the [applicant]…
…
7.A stay of the orders would continue the shared parental responsibility that the [applicant] and [respondent] have been provided under the law, pending appeal.
Although it is true the July 2021 orders did not expressly forbid the children from choosing to spend time and communicate with the applicant, nor did the orders require it, in which event the applicant could not compel the children to spend time or communicate with her.
Legal principles
The discretion to stay the operation of appealed orders should only be exercised where circumstances justify departure from the ordinary rule that the successful respondent is entitled to the fruits of the judgment pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222–223).
Those principles apply equally to judgments delivered in this jurisdiction, including judgments determining parenting causes under Pt VII of the Act (JRN & IEG (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]–[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No 2) [2008] FamCAFC 194 at [38]).
The prospects of the appeal and the balance of convenience between the parties are often important considerations (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685) but, remembering this is an appeal from a discretionary judgment, there is a strong presumption the decision is correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627).
For appeals brought from parenting orders, the welfare of the children is a significant but not paramount consideration. Residential changes should desirably be avoided. Consideration should be given to the adequacy of the children’s present circumstances and the likely delay before the appeal is heard and determined.
Disposition
Applying those governing principles to current circumstances, the only practical point to the proposed stay of the appealed orders is to restore the applicant’s joint parental responsibility for the children for the next few weeks until the appeal is heard and determined. The stay of the orders would revive the interim orders made in July 2021, under which the children cannot be compelled to spend any time at all with the applicant, which consequence she presumably did not anticipate.
No evidence was adduced to demonstrate any significant decision needs to be made for the children within the next few weeks which should desirably involve both parents exercising joint parental responsibility. Imagining for the moment that the appealed orders were stayed and the parties’ joint parental responsibility for the children was thereby restored, such parental responsibility could still be exercised by the respondent individually and without recourse to the applicant. She would likely have no opportunity to individually exercise her parental responsibility for the children between now and the appeal hearing because they would still be living with the respondent and would neither see nor communicate with her.
As can be seen, the stay application is pointless because, even if granted, it would make no tangible difference in the very short period the stay order would operate. The denial of the stay application would not render the appeal nugatory.
There is no need to address the apparent strengths and weaknesses of the appeal.
The Application in a Proceeding filed on 30 August 2024 is dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 16 September 2024