Kaluza & Jefford (No 2) [2025] FedCFamC1F 470 (3 July 2025)

THE COURT FURTHER ORDERS BY CONSENT BETWEEN THE RESPONDENT AND THE INDEPENDENT CHILDREN'S LAWYER THAT:

1. Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Orders be made in accordance with the document attached hereto.

FAMILY LAW ACT, 1975 (CTH)

IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

AT NEWCASTLE

DIVISION (1)

FILE NO. NCC1398/2020

THE APPLICANT AND INDEPENDENT CHILDREN'S LAWYER SEEK ORDERS IN THE FOLLOWING TERMS:

1. That the Independent Children's Lawyer's Application in a Case filed 14 April 2025 for costs of the Independent Children's Lawyer payable by the father is hereby dismissed.
2. That the Respondent father pay the sum of $6,000.00 to Legal Aid NSW as follows:

(a) $2,000.00 payment by no later than 23 January 2026.

(b) $2,000.00 payment by no later than 23 February 2026.

(c) $2,000.00 payment by no later than 23 March 2026.

1. That the Respondent father pay the sum of $206.25 within seven (7) days to Legal Aid NSW as payment for outstanding fees owed to Ms HH.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Kaluza & Jefford has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are short-form oral reasons in relation to an Interim Application for a stay of Final Parenting Orders made by the father, Mr Jefford (born 1986) in relation to two children, X (born 2017) and Y (born 2019) ("the children"). They are the children of the father's former relationship with Ms Kaluza (born 1984), who is the mother.
2. Orders entered by me as part of a final judgment resulting from a final hearing were made on 20 March 2025.
3. The orders were, firstly, that all extant parenting orders be discharged (Order 1), for the children to live with the mother, who was to have sole parental responsibility (Orders 2 and 3) and that the children should spend no time and have no communication with the father (Orders 5 and 6).
4. The no time and no communication order was a consequence of a finding, in summary, of unacceptable risk of sexual harm, to X in particular, by the father, where long term supervision was not considered an option.
5. Further orders were made for the mother to be able to obtain passports for, and to travel with, the children outside Australia, and to ultimately relocate overseas to live with her extended family in her country of origin, the United Kingdom (Orders 7 to 9).
6. There was provision for the orders to be provided to schools and others (Order 10), a s 68B order restraining the father from contacting the children (Order 11), formal notations required for the orders (Order 12), and the discharge of the Independent Children's Lawyer ("ICL") and orders regarding the ICL's application for costs or other parties' applications for costs (Orders 13 and 14).
7. Most significantly, in my view, the appeal is listed for final hearing on 1 August 2025, which is to say, in less than one month's time.
8. I note that there was also an Application filed on 15 April 2025 by the ICL for the ICL's costs in relation to both parents, which was to be heard today. The mother had previously consented, and orders have been made. The father consented today, and orders are made by consent in relation to the Application by the ICL for the father to pay costs, and those orders are made by consent in terms of the written orders provided to me. I will not deal with that any further.
9. The matter, as it proceeded before me today, related to the stay application.
10. The father relied upon his Case Outline filed 1 July 2025 over the hand of his counsel (MFI 1). He moved upon an Application in a Proceeding filed on 2 May 2025 and read in support of that, his Affidavit filed on 2 May 2025.
11. The respondent mother relied upon her Case Outline filed on 1 July 2025 (MFI 2), and moved upon her Response to an Application in a Proceeding filed 29 May 2025, and her Affidavit filed 29 May 2025, which dealt at length with issues of the ICL's costs, but the extent to which her Affidavit went to that, it was irrelevant.
12. The ICL relied upon a Case Outline of 2 July 2025, which has not yet been filed, but has been provided to Chambers and the parties.
13. Moving to the issue of the stay, as I've said, the appeal is listed for hearing in less than one month time, and while the time when the appeal will be heard is only one of many factors to be considered, see Aldridge & Keaton [2009] FamCAFC 106 ("Aldridge & Keaton"), in particular at [18], where the appeal will be heard in less than one month, and where the full court generally delivers judgments within the three-month guideline, I consider that to be a very significant, though not a determinative, factor.
14. The mother opposes the stay, although consents to the stay against relocation (Order 9), though as I understand it, does not consent to a restrain on travel outside of the Commonwealth with the children.
15. The mother says that she has no current plans to travel, and it seems to me that as she has no current plans, and the final appeal is to be heard within one month, that is also a significant issue, or a factor to be considered, when considering staying the travel order.
16. As I understand it, based upon the submissions, the ICL supports the stay of Orders 7 to 9, but does not seek any other orders. Although the ICL did make reference in submissions to supporting the previous order, Order 1 of Orders 9 May 2025. In any event, the ICL also supports the issue of the stay on the international relocation. I will start with that.
17. Starting with the application to stay the orders to the extent they permit international travel and relocation, in my view, if the mother were to travel with the children outside the Commonwealth of Australia and/or relocate and not return, that may render the appeal nugatory. As the Full Court said in Aldridge & Keaton, this will be a substantial factor in determining whether it will be appropriate to grant a stay.
18. In circumstances where the mother consents to a stay of Order 9, and where it seems to me there is no prejudice to the mother in staying Orders 7 to 9 and ordering that the children are not to travel outside the Commonwealth of Australia unless and until the appeal is dismissed or she otherwise obtains orders from the Full Court to travel, given that she has no current plans to travel outside Australia with the children, it seems to me that is the appropriate order. It is essential that the appeal is not rendered nugatory.
19. Accordingly, I stay Orders 7 to 9 of the Orders of 20 March 2025 and order that the mother not travel outside the Commonwealth of Australia with the children pending determination of the appeal.
20. If the appeal is dismissed, of course, the stay falls away, and the mother will be able to travel and relocate as she wishes.
21. However, if the appeal is upheld, then the orders I have made will fall away, and clearly another Justice of the Court will need to reconsider Interim Orders around travel, and also potentially around the other matters concerning the children's time with the father pending a further final hearing. That will be a matter to be dealt with by some other Justice of the Court if the appeal is allowed.
22. In relation to the father's case that supervised time should be permitted to recommence, if we were looking at an extended delay between the making of the orders and the appeal, it would be a different case. However, where the appeal is to be heard in less than one month, and judgment is expected within the three months thereafter, I find that the likely additional trauma to the children of being reintroduced to the father for supervised time, assuming even that supervision could be arranged before the judgment in the appeal is delivered, and then if the appeal is dismissed, terminating the relationship yet again, would be very significant additional trauma, and it would be quite contrary to, and not at all in, the best interest of the children for this to occur.
23. While it is not known whether or not the appeal will be dismissed or upheld, the starting point is that the judgment is good.
24. I note that the father presses the bona fide of the appeal. Of course, it is always possible that the judgment will be set aside, the orders will be set aside, and the appeal allowed. But for the moment, the starting point is that the orders stand and are good. And in those circumstances, I consider it would be very contrary to the children's interests and not consistent with the principle of limiting the frequency of change in the child's living arrangements and putting the children's best interests first to stay the orders and to commence reintroduction.
25. In these circumstances, I do not consider it appropriate to stay any other orders.
26. The issue was raised of whether, without staying the orders, some order should be made that allows the father to try and put himself on the wait list. The father says at [18] of his Affidavit:
    1. Subsequent to the filing of the appeal, I made enquiries with [G Contact Centre] regarding their capacity to offer supervised time should the stay be granted. They indicated to me that they had given up my spot and have an extensive waitlist, which they cannot place me back on until I have active orders in place. Annexed to this affidavit and marked as Annexure "E" is a copy of their email to me.
27. Annexure E to the father's Affidavit states:

...

As your final hearing resulted in a no contact order we are not in a position to

offer any service delivery at this time. We prioritize families with court orders in

place and currently have an extensive waitlist for supervised contact. You are

welcome to reach out in the future should there be a change to your final orders.

...

1. The father urges that if the appeal is allowed, the inability to stay on the wait list and to only go on the wait list once those orders are made would disadvantage him and the children if the Full Court sets aside my judgment and makes orders for supervised time while awaiting rehearing.
2. Whilst I have given consideration to that, it seems clear from the correspondence, which I have just referred to, that the issue is that they are prioritising families with current orders, and they have an extensive wait list for supervised contact, and it is not at all clear that any order I would make would somehow jump the father in the queue.
3. Such order also runs the risk of creating uncertainty and potentially placing a burden on the mother, inconsistent with the order that I have made for the reasons given in my final judgment, as she may be compelled to deal with the issue of the wait listing.
4. In those circumstances, I am not satisfied that an order which may not have any effect, and which might put a burden on the mother, should be made.
5. The stay application is otherwise refused and dismissed.
6. Where the mother did not consent to the stay until today, and did not consent to all of the stay made, no party was wholly successful, and each party should bear their own costs of this application.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith.