Todora & Todora (No 2)
[2022] FedCFamC1F 615
Federal Circuit and Family Court of Australia
(DIVISION 1)
Todora & Todora (No 2) [2022] FedCFamC1F 615
File number(s): BRC 1283 of 2020 Judgment of: JARRETT J Date of judgment: 22 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay of parenting orders pending appeal. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 22 July 2022 Place: Brisbane Solicitor for the Applicant: Litigant in person Counsel for the Respondent Mr Guttridge Solicitor for the Respondent: Legal Aid Queensland ORDERS
BRC 1283 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TODORA
Applicant
AND: MS TODORA
Respondent
order made by:
JARRETT J
DATE OF ORDER:
22 JULY 2022
THE COURT ORDERS THAT:
1.Until Appeal N… is heard and determined or orders are made by the Full Court otherwise, the name of child X born in, 2016 be retained on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
2.Commencing from after school 22 July, 2022 and until Appeal N… is heard and determined or orders are made by the Full Court otherwise, X will spend time with the applicant from after school on Friday until 4.00pm Sunday for 3 consecutive weekends out of every 4 weekends.
3.Changeover will take place on Fridays at the child’s school with the father collecting her from school and on Sundays changeover will take place at M Centre.
4.Otherwise, the application in a proceeding filed 15 July, 2022 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).
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 Todora & Todora is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application for a stay of certain orders that I pronounced on 14 June, 2022 following a trial between the applicant and the respondent about parenting matters concerning their daughter, X. By those orders, I vested in the mother sole parental responsibility for X. I made an order for X to live with the mother and an order that she be at liberty to return to Country B with X to live. The respondent’s case was conducted on the basis that she wished to return to Country B and would do so. The applicant’s case was that X should live in Australia, either with the respondent or with him, depending upon what the respondent decided to do. Both parties presented to me primary proposals and some alternatives, but the orders that I made were consistent with the primary proposal promoted by the respondent mother. I gave reasons for those orders.
The applicant has appealed, as he is entitled to do, and says that there should be a stay of those orders until the appeal is determined. I would be inclined to grant a stay were it not for two matters. The first is that the mother has not returned to Country B, nor indicated an intention to do so until the appeal is determined. Although she has not filed any evidence before me, she says through her counsel, and her presence here today attests to the proposition, that she intends to remain in Australia with X until the appeal is decided. I put to her counsel that I might make an order placing X’s name on the airport watch list until the appeal is concluded. He could identify no prejudice with that course. By making that order, it effectively prevents X from leaving the country until the appeal is determined and the airport watch list order is set aside by the Full Court, as part of its consequential dealings with the appeal, if it is dismissed.
The second matter, which tells against the grant of a stay is the willingness of the mother to enter into further orders for X to spend time with the father. But before I come to deal with that matter, I will deal with some other matters involving the stay.
There is no suggestion here that the father has not acted with the necessary alacrity in bringing this application for a stay. He could have filed the application earlier, but it seems that on the evidence, his intention to bring an appeal was notified to the mother soon after orders were made and my reasons were published.
The appeal seems bona fide in the sense that whilst the grounds are not grounds that seem to have been drawn by a lawyer, the grounds of appeal nonetheless raise issues that are the proper subject matter for an appeal. Some of them are less persuasive than others, but I cannot come to the conclusion that the appeal is anything other than bona fide. I pass no comment on the prospects of the appeal, save to say that the appeal raises matters that are capable of argument. Whether they attract the attention of the appeal court is for others to decide.
That brings me back to the arrangements in the meantime. The mother proposes that there be arrangements for X to spend time with the father each alternate weekend, originally from Saturday morning to Sunday afternoon. I suggested that it might be Friday after school to Sunday afternoon. She seems to agree with that, but she contends that it ought to be every alternate weekend. The father, for his part, argues a return to the original interim orders that were in place when I made the final orders on 14 June, 2022. Those orders included weekend time as well as mid-week time, I think. He suggests that the time between he and X should be every weekend from after school on a Friday, I think, to before school on a Monday or Tuesday (it does not matter for present purposes) and that there be some mid-week time on Wednesdays.
For the reasons that follow I am not inclined to make the orders that either party is suggesting but rather the proposal that I put to them during the course of submissions. First, these orders are not about the time that the parents spend with X - what the parents get, as was put in submissions by counsel for the mother. Rather, it is about X’s time with her parents. As the reasons that I delivered in June make clear, she is entitled to a relationship with both of her parents. She finds herself in a situation where she has one parent who hails from Country J and who now lives in Australia, and another parent who hails from Country B and who wishes to return there and who has never lived in Australia. So she finds herself in a difficult position. No doubt, she has two parents who love her very dearly. There is no dispute about that, and each wish to do the right thing by her, but she now finds herself in a position where her time is being argued for by reference to her parents’ desires.
If the appeal succeeds, then there might be a rearrangement of the time between X and each of her parents. It might be that if the appeal succeeds, there is a re-hearing and different orders are made, I do not know. If the appeal fails, then X’s time with her father will be circumscribed because presumably, she will return to Country B with her mother, and her time will be as set out in the orders that I made on 14 June 2022.
No good reason was advanced to me as to why her time with her father, pending the appeal, should not be maximised on the off chance that the appeal is dismissed. It was said that it was important for the mother to spend time with X in Australia on the weekends to experience Australia on the weekends, but she has had the opportunity to do that and in the overall scheme of what is in X’s best interests, it is of little moment. X has had that opportunity ever since she has been in Australia and she has certainly had it since 14 June, 2022 since which time the mother has not seen fit to have X spend any face to face time with her father. Her argument is hollow and disingenuous.
It is important in my view, whether the appeal succeeds or not, that X experience her father’s involvement with her schooling and collecting her from school on a Friday afternoon will permit that to happen. I am not satisfied, however, that it is appropriate for him to deliver her to school. There have been problems in the past. They are canvassed in my reasons for judgment delivered in June. I do not intend to canvass them again.
ORDERS DELIVERED
Otherwise, the application for a stay stands dismissed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 22 July 2022
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