Withers & Russell (No 2)

Case [2022] FedCFamC1F 488

Federal Circuit and Family Court of Australia

(DIVISION 1)

Withers & Russell (No 2) [2022] FedCFamC1F 488

File number: CAC 223 of 2015
Judgment of: GILL J
Date of judgment: 11 July 2022
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has applied for a stay pending appeal of first instance judgment – Where children are to shortly relocate from Australia to USA – Where consideration is given to the further disruption caused by a stay in the proceedings – Application refused
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited:

Aldridge & Keaton [2009] FamCAFC 106

Bugmy v The Queen (2013) 249 CLR 571

House v The King (1936) 55 CLR 499

Sheldon v Weir (No 4) [2010] FamCA 1214

Sheldon v Weir [2011] FamCA 2

Division: Division 1 First Instance
Number of paragraphs: 58
Date of hearing: 11 July 2022
Place: Canberra
Counsel for the Applicant: Ms Tabbernor
Solicitor for the Applicant: Unified Lawyers
Counsel for the First Respondent: Mr Haddock
Solicitor for the First Respondent: Parker Coles Curtis
Solicitor for the Second Respondent: Self-Represented
Solicitor for the Independent Children’s Lawyer: Jeanine Lloyd & Associates

ORDERS

CAC 223 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR WITHERS

Applicant
AND:

MS RUSSELL

First Respondent

MS RUSSELL SNR
Second Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

GILL J

DATE OF ORDER:

THE COURT ORDERS THAT:

1.The applicant’s Application in a Proceeding insofar as it seeks a stay of orders made on 26 May 2022 is refused.

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 Withers & Russell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J:

INTRODUCTION

  1. This matter concerns an application for a stay pending appeal of orders that fundamentally alter the care and living arrangements of two children: A born in 2009 (“A”) and B born in 2011 (“B”) (collectively “the children”).

  2. There are three parties in these proceedings: the applicant father, Mr Withers, the respondent mother, Ms Russell, and the second respondent maternal grandmother, Ms Russell Snr. An Independent Children’s Lawyer (“ICL”) was appointed on behalf of the two children of the applicant and respondent.

  3. The children currently reside with the father within the Australian Capital Territory (“ACT”).

  4. Following…

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AGLC
Withers & Russell (No 2) [2022] FedCFamC1F 488
Case
[2022] FedCFamC1F 488
Decision Date

CaseChat Overview and Summary

In the matter of Withers & Russell (No 2), the court was presented with an appeal against a decision concerning the living arrangements of the children, A and B. The primary dispute was whether the children should be allowed to relocate to the USA to live with their mother, a move that had been ordered by a prior judgment. The father argued that the current arrangements should be stayed pending the appeal, citing potential disruption and frustration for the children if they were required to return from the USA following a successful appeal. The court was tasked with determining whether the appeal had sufficient merit to warrant a stay of the existing orders and whether the potential harm to the children outweighed the risk of an unsuccessful appeal.

The central legal issues before the court involved the assessment of the strength of the grounds of appeal and the potential consequences of granting or denying a stay on the children's welfare. The court had to consider whether the grounds of appeal were compelling enough to warrant a temporary halt to the children's relocation, balancing this against the significant disruption and emotional distress that the children might experience if they were forced to return from the USA after having already begun their preparations to move. Furthermore, the court examined whether the current orders were in the best interests of the children and whether there was a substantial risk of non-compliance by the mother with any return orders.

In its reasoning, the court concluded that the grounds of appeal were not sufficiently strong to warrant a stay. The court found that the orders in place were presumed to be correct and that the presumption in favour of the mother's entitlement to the effect of the orders was strong. While the father's concerns about the children's potential disruption were acknowledged, the court determined that the risk of such disruption was outweighed by the significant difficulties the children would face if they were required to return from the USA following a successful appeal. The court held that the balance of considerations pointed towards declining to grant the stay, as the potential negative consequences for the children if a stay were granted were deemed to be greater than the prospects of a successful appeal.

Consequently, the court decided not to grant the stay, allowing the children to proceed with their planned move to the USA with their mother. This decision was based on the limited likelihood of a successful appeal and the significant disruption that a stay would cause the children. The court's final orders thus upheld the previous judgment, permitting the children to relocate as planned, subject to the mother's compliance with any future orders related to their return.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept, as suggested by counsel for the father, that the grounds may be amended as of right until the filing of the Outline of Argument. However, the grounds as currently expressed form the only basis on which the strength of the appeal can be assessed.Conclusion The judgment appealed from was directed to the arrangements that are in the best interests of A and B and, in particular, alleviating risks flowing from their current circumstances, and flowing from the frustration of their views, being deeply held views that they want to live with the mother. In that context, the children may be anticipated to have strong expectations that they are about to travel to the USA with their mother in accordance with the judgment, they having made preparations for the travel with, seemingly, appropriate support from the father. It may be accepted that the sudden frustration of that process, where the children have already been farewelled from their schools, packed, and been in the process of farewelling the paternal family, is likely to be highly disruptive and frustrating to them. Further delay in the children’s move to the USA carries with it the prospect that the children will be unable to commence the new school year in their new schools with their new cohort of students, and face the prospect that if they are able to join the schools post any appeal (in up to five months time), that they will do so well into the school year. It might be supposed that this will render their integration more difficult. Further, they will not have the benefit of the holiday with the mother, her husband and his children, that has been planned as a part of their managed transition into the mother’s household. The orders that provide for the move to live with the mother are the subject of appeal. They are presumed, however, to be correct, and the mother is presumed to be entitled to the effect of the orders. The grounds of appeal arrayed against that judgment and those orders are apparently weak, doing little to push against those presumptions. They, at present, do not indicate with any strength that the orders currently in place are defective or fail to follow the requirements for decision making in the children’s best interests. The father correctly identifies that the children face significant disruption should they move now, and be required to return following a successful appeal. Given the assessment of the grounds of appeal, the prospects of such effects occurring do not appear to be strong. I accept that there is some risk that there will be issues with the mother’s compliance with orders requiring their return. It is with particular focus on the well-being of the children that consideration is to be given to these different factors in determining whether to grant the stay. The balance here falls to declining to grant the stay. The children face disruption and frustration whether a stay is granted, or not granted and an appeal is successful. The prospects of a successful appeal, weighed into that mix, appear at present limited, while the disruption and frustration and difficulties associated with a delayed departure are significant. These consequences of granting a stay are sufficient to weigh against the granting of such relief.

Ratio Decidendi

Legal Principle Established

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