Van Wyk & Van Wyk

Case [2023] FedCFamC1A 33

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Van Wyk & Van Wyk [2023] FedCFamC1A 33

Appeal from: Van Wyk & Van Wyk [2022] FedCFamC2F 1278
Appeal number(s): NAA 227 of 2022
File number(s): BRC 7287 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 23 March 2023
Catchwords: FAMILY LAW – APPEAL – TRAVEL – Appeal from order permitting the respondent to travel overseas with the children – Where the time stipulated in the travel order has expired – No application for a stay of the travel order – Where travel has already occurred and the children have been returned to the Commonwealth of Australia – An appeal against orders that are spent is futile – Appeal dismissed – No order as to costs.   
Legislation:

Family Law Act 1975 (Cth) s 65Y

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Cases cited:

Belmont & Flores [2020] FamCAFC 290

Cimorelli & Wenlack (No 2) [2019] FamCAFC 255

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 25
Date of hearing: 23 March 2023
Place: Brisbane (via videolink)
The Appellant: Litigant in person
The Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: Ms Mannering, Northside Family Law Centre

ORDERS

NAA 227 of 2022
BRC 7287 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS VAN WYK

Appellant
AND:

MR VAN WYK

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

23 MARCH 2023

THE COURT ORDERS THAT:

1.The mother’s Notice of Appeal filed 19 October 2022 is dismissed.

2.There be no order as to costs.

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 Van Wyk & Van Wyk has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

MCCLELLAND DCJ:

INTRODUCTION

  1. By way of Notice of Appeal filed 19 October 2022, the appellant mother appeals from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2), in respect to the respondent father’s Application in a Proceeding, allowing him to travel to Country A with the parties’ two children. For reasons which I will set out, I dismiss the mother’s appeal primarily because the travel has already occurred.

    BACKGROUND

  2. The parties have…

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AGLC
Van Wyk & Van Wyk [2023] FedCFamC1A 33
Case
[2023] FedCFamC1A 33
Decision Date

CaseChat Overview and Summary

In the matter of Van Wyk & Van Wyk, the mother appeals from an order of the Federal Circuit and Family Court of Australia (Division 2) which allowed the father to travel to Country A with the parties' two children. The father had filed an Application in a Proceeding seeking permission to travel with the children, which was granted by the primary judge on 21 September 2022. The mother's appeal challenges the decision to allow the father to travel with the children, but the appeal is dismissed as the travel has already occurred.

The primary legal issue before the court was whether the appeal against the primary judge's order had any reasonable prospects of success. The mother's appeal was effectively unmeritorious as the time period stipulated in the impugned order had expired and the travel had already occurred. The court had the power to summarily dismiss the appeal under s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The court considered that there was no utility in hearing the appeal because the relevant orders were spent and the travel had already taken place. The appeal was dismissed as having no reasonable prospects of success.

The court relied on the authorities of Belmont & Flores [2020] FamCAFC 290 and Cimorelli & Wenlack (No 2) [2019] FamCAFC 255 in finding that the appeal was futile. In dismissing the appeal, the court noted that the primary judge's orders had been complied with and the children had already returned to Australia. The court concluded that the appeal against the primary judge's orders had no reasonable prospects of success.

In summary, the appeal against the primary judge's order was dismissed as the appeal was effectively unmeritorious and the travel had already occurred. The court found that there was no utility in hearing the appeal as the relevant orders were spent and the travel had already taken place. The appeal had no reasonable prospects of success.

Orders

Orders of the court

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Background

Background to the litigation

By way of Notice of Appeal filed 19 October 2022, the appellant mother appeals from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2), in respect to the respondent father’s Application in a Proceeding, allowing him to travel to Country A with the parties’ two children. For reasons which I will set out, I dismiss the mother’s appeal primarily because the travel has already occurred.BACKGROUND The parties have two children, who were 13 years old and nine and a half years old respectively at the date of the hearing before the primary judge. On 9 July 2019, the parties entered into final consent orders in respect to their parenting dispute. Subsequently on 15 June 2020, the mother filed an Initiating Application for those consent orders to be varied, seeking sole parental responsibility for both children and for the children to live with the mother. The father, in his Response filed 21 July 2020, also sought a variation of the consent orders, albeit for him to hold sole parental responsibility and live with arrangements, as well as variations to travel orders. On 15 August 2022, the father filed an Amended Application in a Proceeding seeking interim orders to travel with the children to Country A in December 2022, which was heard as a discrete issue by the primary judge on 29 August 2022, on account of the final hearing as a whole being unable to proceed on that date (at [11]). I have been advised by the mother that the substantive issues between the parties are being heard in proceedings that are listed for three days in September of this year. The basis of the father’s Amended Application in a Proceeding was that there had been significant change in circumstance, satisfying, according to the father’s submissions, the principles set out in Rice and Asplund (1979) FLC 90-725, in that (at [27]):(1)The parties’ ability to communicate and jointly agree on arrangements had broken down entirely;(2)The paternal grandmother passed away unexpectedly in Country A during the COVID-19 pandemic, which prompted the father to re-evaluate the need to travel with the children to visit the paternal grandfather;(3)The paternal family had organised a family reunion in Country A for all members of the family from around the world to meet in one place, which was not contemplated at the time of the consent orders; and(4)The father had decided to hold his upcoming wedding in Country A to allow the paternal family to attend. The mother opposed the father’s Application in a Proceeding, contending that the children should not be permitted to travel to Country A due to a number of safety risks in that country, which are set out by her Honour in some detail from [31] to [36]. Following the interim hearing on 29 August 2022, in which both parties were cross-examined in respect to the issue of travel, the primary judge delivered judgment on 21 September 2022 and made the following orders:(1)The mother take all necessary steps and sign all required documents for issuing passports for the children [Child X] born [2009] and [Child Y] born [2013] (“the children”), if such applications have not already been completed and provided to the father, by 4.00pm on 22 September 2022. (2)The children travel with the father to [City B], [Country A], between 26 December 2022 and 23 January 2023. (3)In giving effect to Order 2 herein, Order 4 of the final orders dated 9 July 2019 be varied such that the children spend time with the mother, during the 2022/2023 Christmas school holiday period from 5 December 2022 until 25 December 2022, and spend time with the father from 26 December 2022 to 23 January 2023. (Emphasis in original)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Despite the fact that there has been effectively no opposition to the appeal, I am nonetheless required to consider the merits of the appeal and, specifically, refrain from making orders setting aside a decision by a trial judge unless I am satisfied that error has occurred.CONSIDERATION Given that the time period stipulated in the impugned order has now expired and the travel has occurred, consideration must first be given to the utility of this appeal. The power to summarily dismiss unmeritorious appeals from a judgment of a judge of Division 2 of the Federal Circuit and Family Court of Australia is found in s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”). Relevantly, s 46(2) states that the Court can summarily dismiss an appeal if the appellant has no reasonable prospects of success, even if the appeal is not hopeless or bound to fail: ss 46(3)(a) and (b) of the FCFCOA Act. In dismissing the appeal of Belmont & Flores [2020] FamCAFC 290, Tree J noted at [16] the futility of an appeal against an order that pertained to a school holiday period that had already passed:…it is clear on the face of the appeal itself that it is futile. The application for a recovery order which is the subject of the appeal, was dismissed, and the relevant school holiday period has now passed. His Honour continued at [16] to note that, even if the appeal proceeded and error was in fact established, “it is inconceivable that a court hearing the appeal would… then make an order for the recovery of the child in relation to a period which has expired”. Additionally, in Cimorelli & Wenlack (No 2) [2019] FamCAFC 255, Ryan J dismissed an Application in an Appeal to reinstate an appeal against orders that, amongst other things, restrained the parties from removing the children from the Commonwealth of Australia on the basis that they had been spent or otherwise superseded by subsequent orders. In confirming that the impugned orders were no longer operative, her Honour said at [22]:There is no utility in reinstatement of an appeal against orders that are spent, or which have been replaced by subsequent orders that now constitute the operative orders. … Here the relevant fact, in my opinion, is that the orders no longer have any work to do. In applying those authorities, I note that the orders made by the primary judge in September 2022 have now been spent. Those orders provided for travel to occur in late December 2022 and early January 2023. That travel has now occurred, with the father taking the children out of the Commonwealth of Australia in accordance with those orders. His actions in doing so, in circumstances where there had not been an application for a stay of those orders made by the primary judge, was consistent with the provisions of s 65Y of the Family Law Act 1975 (Cth) and, subsequently, the children have been returned to Australia. The mother seeks, in her Notice of Appeal, to challenge only Order 2 of the orders made on 21 September 2022 which, as I have noted, has been spent. The expiry of the time stipulated in Order 2 of the primary judge’s orders necessarily means that that interim order is no longer operative, and it follows that an appeal against such an order has no reasonable prospects of success.