Hillsworth & Kantawong (No 2)

[2023] FedCFamC1F 904

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hillsworth & Kantawong (No 2) [2023] FedCFamC1F 904

File number:

SYC 1826 of 2019

Judgment of:

CHRISTIE J

Date of judgment:

23 October 2023

Catchwords:

FAMILY LAW – STAY APPLICATION PENDING APPEAL – EX TEMPORE – Where the applicant has filed a Notice of Appeal against final orders which provide for the respondent to have sole parental responsibility for the child and permitting the respondent to relocate the child’s residence to Country B – Where the appeal is listed for hearing shortly before the respondent’s visa expires and the date from which the respondent is permitted to relocate the child’s residence to Country B – Whether a stay should be granted – Where if the applicant is successful on appeal the child may be required to return to Australia – Where it would be inappropriate and disruptive for the child to leave Australia only to have to return – Where it is proper to grant a stay pending further order.

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the respondent sought orders in relation to the child obtaining an Australian passport – Where that issue resolves by consent at the hearing.

Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 3

Division:

Division 1 First Instance

Number of paragraphs:

28

Date of hearing:

23 October 2023

Place:

Sydney

Counsel for the Applicant:

Ms Robinson

Solicitor for the Applicant:

Single Law

Solicitor for the Respondent:

Philip A Wilkins & Associates

Solicitor for the Independent Children's Lawyer:

Legal Aid

ORDERS

SYC 1826 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HILLSWORTH

Applicant

AND:

MS KANTAWONG

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	23 OCTOBER 2023

THE COURT ORDERS THAT:

1.Pending further order, Orders 2-4, 6, 7, 9-14 and 16-18 are stayed.

BY CONSENT THE COURT ORDERS THAT:

2.The mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the child X born 2017 provided that the passport is obtained in the name X.

3.Pursuant to section 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child.

4.The Australian Passport issued to the child shall be provided to the mother to hold on behalf of the child.

5.The mother shall provide a copy of the passport and change of name certificate to the father within 7 days of issue.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CHRISTIE J:

1. This is an application for the stay of orders made on 5 September 2023. The applicant father filed an Application in a Proceeding seeking a stay of those orders on 6 October 2023.

2. The respondent filed a Response and an affidavit on 18 October 2023. The respondent opposes the stay. In addition, the respondent sought orders to obtain an Australian passport for the child. That issue has been resolved by consent.

3. The Independent Children’s Lawyer (“ICL”) supports a stay of the order which (if not stayed) would permit relocation.

4. The history of the parenting arrangements for the parties’ child X is set out in my reasons for judgment in the first instance proceedings.

5. On 5 September 2023 I made final orders concerning the child, X born 2017. Those orders provided that the respondent mother was to have sole parental responsibility and, no sooner than 16 December 2023, she be permitted to relocate the child’s residence to Country B. Orders were made for the father to spend time with the child both in Australia and in Country B.

6. The father’s Application sought a stay of Orders 1-4 and Orders 6-18. During the hearing today, that Application has been refined such that the father seeks a stay of Orders 2-4, 6, 7, 9-14, 16‑18.

7. Order 1 is an order about the child’s name and did not actually appear to be a matter which was the subject of the appeal. The parties accepted during this hearing that that order need not be stayed.

8. Order 5 provided that, while the child remains living in Australia, he live with the father and (provided that the mother reside with a friend of hers in Region D) spend time with the mother on alternate weekends and one weeknight in the alternate week. The applicant does not seek a stay of this order and says in his affidavit that Order 5 is “currently working well”.

9. On 3 October 2023 the applicant filed a Notice of Appeal appealing all the orders made on 5 September 2023.

10. The grounds of appeal relate to an asserted failure to provide adequate reasons (Ground 1) and an asserted failure to give appropriate weight to evidence (Ground 2).

11. The appeal is listed before the Appellate Division of the Federal Circuit and Family Court of Australia (Division 1) on 8 December 2023.

12. The final parenting orders provide that the child’s relocation to Country B with the mother occur no earlier than 16 December 2023. That date was chosen having regard to the end of the school term.

13. The evidence at trial was to the effect that the mother’s current visa is scheduled to expire in December 2023. Her affidavit filed in support of her Response states that she is making enquiries as to whether her visa can be extended beyond that date in the event that judgment of the appeal is delayed or the appeal is successful and remitted for re-hearing.

    THE LAW

14. Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides for the making of a stay order on application by a party in circumstances where an appeal has been filed. Those rules provide that that application be dealt with by me if I am reasonably available to hear and determine it.

15. The principles which are to apply when considering an application for a stay are well settled and set out by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]:

    18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known ([…]). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

    •the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

    •a person who has obtained a judgment is entitled to the benefit of that judgment;

    •a person who has obtained a judgment is entitled to presume the judgment is correct;

    •the mere filing of an appeal is insufficient to grant a stay;

    •the bona fides of the applicant;

    •a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

    •a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

    •some preliminary assessment of the strength of the proposed appeal  - whether the appellant has an arguable case;

    •the desirability of limiting the frequency of any change in a child’s living arrangements;

    •the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

    •the best interests of the child the subject of the proceedings are a significant consideration. 

16. Those principles are relevant to the stay application before me today.

    CONSIDERATION

17. There is nothing to indicate that the applicant is not bona fide in his application. This was, as I previously indicated in my reasons for judgment, a difficult case in which each party’s proposal had advantages and disadvantages.

18. I accept that the mother has a right to the judgment and a presumption as to its correctness but that is only part of what must be considered.

19. The date of filing of the stay was very soon after the Notice of Appeal and I conclude the applicant’s application has been prosecuted diligently and without delay.

20. I accept that there is a proper basis for an application to stay the orders since the orders provide for a child to leave the Commonwealth of Australia to reside somewhere elsewhere on a permanent basis.

21. I am keen to avoid a situation where the father is successful on appeal and X is as a consequence required to return to Australia. I accept the submissions of the father and the ICL that that situation would be disruptive for X.

22. One of the difficulties in this case is that the mother’s current visa is due to expire in December 2023. As previously indicated, the orders were designed to accommodate the conclusion of the school year and the expiration of the visa. If a stay is granted then it could operate until such time as the appellate division of the court determines the appeal which may or may not be after the date of the visa expiration. I will express any order I make as pending further order which will permit any party to revisit the application if circumstances require. The urgency arises from the mother’s immigration status as opposed to the child’s immediate needs.

23. It would be inappropriate for X to have left Australia only to have to return. X is well settled in Australia. X has never really lived in Country B.

24. I accept that the appeal as presently drafted could not be regarded as an abuse of the court’s processes. I do not think that the appeal has been filed in order to delay proceedings.

25. As to the merits of the appeal – the first ground asserts inadequate reasons. I am not convinced that the lack of reasons ground will ultimately find favour given paragraphs [76], [79] – [81] of my earlier reasons for judgment but that is a matter for others. The second ground appears to deal with the weight given to evidence and will face the usual challenges in that regard (Gronow & Gronow (1979) 144 CLR 513 at 519: “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”).

26. The applicant father sought further orders in the case outline concerning the Airport Watchlist but by staying Order 16 X will remain on the Airport Watchlist.

27. The orders do not prevent the mother from leaving the country. The orders do not prevent the mother from renewing her visa, which she indicated she has made enquiries about. Both of these factors mean that on balance, weighing both the interests of the applicant and the respondent (alongside those of the child) it is proper to grant the stay.

    Obtaining an Australian passport for the child

28. Given the parties have reached an agreement in respect of the passport issue it is not necessary for my reasons to deal with that issue.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie.

Associate:

Dated:       23 October 2023