Simmons and Anor and Kingley - [2013] FamCA 568

FAMILY COURT OF AUSTRALIA

SIMMONS & ANOR AND KINGLEY

[2013] FamCA 568

FAMILY LAW – ORDERS – Stay – Child related proceedings – Where events have overtaken proceedings – Where a new regime has been created – Where a refusal of the application of the stay will not render the appeal nugatory – Whether the appeal proceeds on substantial grounds – Where the application is dismissed.

Family Law Rules 2004 (Cth) r 22.11

Aldridge & Keaton [2009] FamCAFC 95 Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Carlin & Carlin (1977) FLC 90-320 Clemett & Clemett (1981) FLC 91-013 CSN & JBN (1998) FLC 92-833 De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678 EJK & TSL (No 2) (2006) 35 Fam LR 590 Friscioni & Friscioni [2009] FamCAFC 43 Jenning Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 JRN & KEN v IEG & BLG (1998) ALJR 1329 K & B (2006) FLC 93-288 Kelly & Kelly (1981) FLC 91-007 SRS & KLS & Child Representative [2005] FamCA 700 The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd (1986) 160 CLR 220 Trahn & Long (No 2) [2008] FamCAFC 194
1st APPLICANT:	Mrs Simmons

2nd APPLICANT:

Mr Simmons

RESPONDENT:

Mr Kingley

INDEPENDENT CHILDREN’S LAWYER:

Ms Dart of Legal Aid Queensland

FILE NUMBER:

BRC

1363

2008

DATE DELIVERED:

2 August 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

30 July 2013

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT:

Mr Baston

COUNSEL FOR THE 2ND APPLICANT:

Mr Baston

COUNSEL FOR THE RESPONDENT:

Mr Anderson

SOLICITOR FOR THE RESPONDENT:

Smith and Associates

INDEPENDENT CHILDREN’S

LAWYER :

Ms Dart

Orders

That the Application in a Case filed 12 July 2013 is dismissed.
That in the event that the Respondent seeks an order that the Applicants pay his costs of and incidental to the Application in a Case filed 12 July 2013:
(a)the Respondent file and serve brief written submissions in support of such application for costs within 14 days of the date hereof;
(b)the Applicants file and serve any brief written submissions in answer to any submission filed and served by the Respondent within a further 14 days thereafter;
(c)the Respondent file and serve any brief further written submissions strictly in reply to the submission served by the Applicants within 7 days of its service.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmons and Anor & Kingley 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 BRISBANE

FILE NUMBER: BRC 1363 of 2008

Mrs Simmons and Mr Simmons

Applicants

And

Mr Kingley

Respondent

REASONS FOR JUDGMENT

The trial of the competing parenting Applications in relation to C Arndale-Kingley, born in 2006, (“the child”) took place between 6 and 10 May 2013. On 5 July 2013, I made parenting orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FamCA 568
Decision Date

CaseChat Overview and Summary

In *Simmons & Anor and Kingley* [2013] FamCA 568, the Family Court of Australia considered an application by the applicants, Mr and Mrs Simmons, for a stay of parenting orders made on 5 July 2013, pending the determination of their appeal against those orders. The dispute concerned the parenting arrangements for a child, C Arndale-Kingley. The applicants sought to stay the operation of the July order, which had already been put into effect, with the child living with her father, the respondent Mr Kingley, and resuming attendance at her previous school.

The primary legal issue before the Court was whether to grant a stay of the existing parenting orders pending the appeal. This required the Court to consider the principles governing applications for stays, including the entitlement of a successful litigant to the benefit of a judgment, the onus on the applicant to establish a proper basis for a stay, and the paramount consideration of the child's best interests. The Court also had to assess factors such as the bona fides of the applicants, the potential for undue delay, the likely time to hear the appeal, and whether refusing the stay would render a successful appeal nugatory.

Justice Hogan applied the established principles for granting a stay, noting that while a stay should not be granted as a matter of right, it could be ordered if the applicant satisfied the Court of a justifiable ground. Crucially, the Court considered that events had overtaken the proceedings, as the child had been informed of the July order, had moved to live with her father, and had recommenced attending her school. Granting a stay would necessitate informing the child of a further change in her care arrangements, which the Court found would likely cause significant confusion and was not in her best interests, particularly given recent substantial changes. The Court also noted that limiting the frequency of changes in custodial arrangements is especially desirable for a child.

The application for a stay was dismissed. The Court ordered that if the respondent sought costs, written submissions were to be exchanged between the parties within specified timeframes. The judgment was published under a pseudonym as approved by the Chief Justice pursuant to section 121(9)(g) of the *Family Law Act 1975* (Cth).

Orders