Leena & Leena (No 4) [2025] FedCFamC1F 456 | Case summary

FedCFamC1F|2025-07-11|Before: Anderson J

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

The Application in a Proceeding filed on 6 June 2025 is dismissed.
The costs of the father and the Independent Children's Lawyer are reserved.
Any application for costs together with an affidavit in support shall be filed within twenty-eight (28) days after the determination, withdrawal or abandonment of the appeal in relation to the Orders made on 17 April 2025.

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 a pseudonym Leena & Leena has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

These reasons explain the dismissal of the mother's Application in a Proceeding filed on 6 June 2025 seeking an order for the stay of parenting orders made by me on 17 April 2025 pending the determination of her appeal.

The parties to these proceedings are the parents of two female children ("the children") who are now aged ten (10) years and seven (7) years respectively.
The mother commenced proceedings under Part VII of the Family Law Act 1975 (Cth) ("the Act") in respect of the children on 5 May 2023. On the same day, the mother commenced Part VIII proceedings in relation to the division of a modest pool of assets. A trial occurred between 10 and 14 February 2025. At the conclusion of the trial, I reserved my judgment. On 17 April 2025, I delivered my decision and reasons.[1]
On 15 May 2025, the mother filed a Notice of Appeal in respect of my decision. For reasons not explained, she did not file an application seeking an order for the stay of parenting and financial orders made by me until 6 June 2025.
On 11 June 2025, and with the consent of the father, I stayed the operative provisions of orders made by me with respect to the Part VIII applications pending determination of the appeal.
Among other things, the final parenting orders made by me include orders that:

(a) The parties have joint decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children;

(b) The children live with the mother; and

(c) During school term time, the children spend time with the father from the conclusion of school on Friday (or 9.00am if school is not in session) to the commencement of school on Tuesday (or 9.00am if school is not in session).

The mother by her counsel's Outline of Case Document invites the Court to reinstate interim parenting orders, which were made by a Senior Judicial Registrar with the consent of the parties on 17 August 2023.[2] Those orders provide that:

(a) The children live with the mother; and

(b) The children spend time with the father from the conclusion of school on Friday to the commencement of school on Monday in each alternate week.

By his Response to an Application in a Proceeding filed on 25 June 2025, the father invites me to dismiss the mother's application. The Independent Children's Lawyer similarly invites me to do so.
The mother's appeal in respect of my orders is listed before the Full Court of the Federal Circuit and Family Court of Australia (Division One) on 30 July 2025.

(a) An Application in a Proceeding filed on 6 June 2025;

(b) An Affidavit in the name of the mother filed on 29 May 2025;

(c) An Outline of Case Document filed on 25 June 2025; and

(d) An Amended Notice of Appeal filed on 30 June 2025.

(a) A Response to an Application in a Proceeding filed on 25 June 2025;

(b) An Affidavit in the name of the father filed on 25 June 2025; and

(c) An Outline of Case Document filed on 26 June 2025.

The Independent Children's Lawyer relied on an Outline of Case Document filed on 30 June 2025.

Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") provides parties with the opportunity to apply for a stay of an order of the Court pending the outcome of an appeal.
As the judge who made the order under appeal, I have jurisdiction to hear and determine the application for a stay of the final orders. The principles relating to applications for a stay of orders are those described by Austin J in Zyma & Begum [2025] FedCFamC1A 11 at [15] to [16], as follows:
1. The discretion to stay the operation of appealed orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) [1986] HCA 13; (1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 685).
2. Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments in parenting proceedings (JRN & IEG [1998] HCATrans 263; (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]-[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No 2) [2008] FamCAFC 194 at [38]). In relation to the proposed stay of appealed parenting orders, the welfare of the child is now considered a significant, but not the paramount, consideration. Residential changes should desirably be limited as far as reasonably possible. The Court should also consider whether the child's present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.
The Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 ("Aldridge & Keaton (Stay Appeal)") confirmed the discretionary nature of the determination of an application for a stay pending appeal and identified eleven principles applicable to a stay application.[3] Those principles were adopted and applied in another Full Court decision in Cantrell & North & Anor (2019) FLC 93-921; [2019] Fam CAFC 127 ("Cantrell').[4]
Recently, the principles applicable to an application for a stay were described by Austin J in Navickas & Fried [2024] FedCFamC1A 248 ("Navickas") as follows:
1. The power of the appeal court to stay the orders the subject of the appeal is found in s 38(1)(b) of the FCFCA Act.
2. The discretion to stay the operation of appealed orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) [1986] HCA 13; (1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 685).
3. Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments in parenting proceedings (JRN & IEG [1998] HCATrans 263; (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]-[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; at ). In relation to the proposed stay of appealed parenting orders, the welfare of the children is now considered a significant, but not the paramount, consideration. Residential changes should desirably be limited as far as reasonably possible. The Court should also consider whether the children's present circumstances are satisfactory, the of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.
The Navickas exposition of principles applicable to a stay application demonstrates that it is not necessary to separately address every one of the eleven principles set out in Aldridge & Keaton (supra).

By her Amended Notice of Appeal, the mother identifies two grounds of appeal, which are relevant to the Part VII applications. Those grounds assert that:

(a) As a consequence of my conduct, there was a reasonable apprehension that my decision was affected by bias;

(b) I erred by "failing to consider material considerations" when restraining the parties from facilitating the children's attendance on an "autism specialist";

(c) I erred in failing to provide adequate reasons and/or failed to have regard to material considerations with respect to my determination regarding the allocation of parental responsibility and joint decision-making to the parties.

With respect to the first ground of appeal, the mother by her counsel asserts that it is "a culmination of factors", which give rise to the assertion that I may not have brought an impartial mind to the resolution of the parenting applications. Particularly, however, the mother says that:

(a) On 22 January 2025, I made several comments with respect to the competing applications, which caused her to consider that I did not bring an impartial mind to the resolution of the question about whether the father presented a risk to the children;

(b) My conduct on 23 January 2025 by making orders in the mother's absence again caused her to consider that I did not bring an impartial mind to the resolution of the parenting applications; and

(c) I interjected throughout the proceedings in a manner, which is not "uncommon" but did give rise to an apprehension of bias.

I was not provided with specific examples of interjections by me during the trial, which might have caused the mother to reasonably apprehend that I would not decide the case impartially or without prejudice. However, the events, which occurred on 22 January 2025 and 23 January 2025 are the subject of a twenty-two page judgment delivered by me on 20 February 2025.[5] That judgment was delivered after the wife filed an Application in a Proceeding on 6 February 2025 seeking an order for my disqualification.
The father asserts that my judgment of 20 February 2025 represents an interlocutory decision. This being so, the father asserts that any application for leave to appeal from my order ought to have been filed by 20 March 2025.
Section 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 provides that leave of a Full Court of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from "a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single Judge". Regulation 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 ("2022 Regulations") reads as follows:

4.02 Leave to apply required for some family law and child support proceedings - prescribed judgments

(1) For the purposes of paragraphs 28(1)(b) and (3)(e) of the Federal Circuit and Family Court Act, the following judgments are prescribed:

(a) an interlocutory decree (other than a decree in relation to a child welfare matter);

(b) an order under section 102PE, 102QF or 102QG of the Family Law Act.

(2) For paragraph (1)(a), a child welfare matter is a matter relating to the following:

(a) the person or persons with whom a child is to live;

(b) the person or persons with whom a child is to spend time or communicate;

(c) any other aspect of parental responsibility (within the meaning of Part VII of the Family Law Act) for a child.

I consider that my judgment of 20 February 2025 is properly characterised as an interlocutory order as it was procedural in nature and not determinative of any issue between the parties. Further, I do not consider that my order dismissing the mother's application for my disqualification is sufficiently connected to a "child welfare matter" so as to fall within the exemption in regulation 4.02(1)(a) of the 2022 Regulations. Authority for such a conclusion is found in the decision of Justices Aldridge, Harper and Brasch in Wynn & Danilov [2023] FedCFamC1A 149.
Having said this, and in Goldsmith & Stinson (No 2) (2023) FLC 94-134, the Full Court set out the principles, which apply to an application for leave to apply as follows:
1. If leave to appeal is required, the test adopted in this Court is a conjunctive one, namely, whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, if so, whether a substantial injustice would occur if leave were not granted: Medlow & Medlow (2016) FLC 93-692 at [57]; Moy & Pao [2022] FedCFamC1A 17; (2022) FLC 94-073 at [11]. The merits of the proposed appeal are relevant to the success of an application for leave to appeal: Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619 at [39]; Harford & Spalding [2022] FedCFamC1A 78 at [16].
It will be a matter for the wife to do whatever she considers necessary to prosecute an appeal to the effect that my decision was affected by bias.
Even if the above analysis is erroneous, and for the reasons discussed below, I do not consider that a refusal of the stay application will be prejudicial to the children.
With respect to the second ground of appeal, namely, that I erred by "failing to consider material considerations" when restraining the parties from facilitating the children's attendance on an "autism specialist", the mother's own evidence causes a reader to conclude that:

(a) The autism specialist had an ability to attend on the children up until 30 June 2025;

(b) During the weeks commencing 7 July 2025 and 14 July 2025, the autism specialist "would potentially be able to ... [attend on the children] as long as she is fit and able to [do so]"; and

(c) Thereafter, the autism specialist "will...be on maternity leave, with no return date decided".[6]

Having regard to these facts, I do not consider that the children's welfare will be prejudiced by the orders made by me. Further, it is difficult for the mother to argue that her appeal on this ground will be rendered nugatory when on the mother's own evidence, the autism specialist will shortly not be available to attend on the children in any event.
With respect to the third ground of appeal, namely, that I erred in failing to provide adequate reasons and/or failed to have regard to material considerations with respect to my determination regarding the allocation of parental responsibility and joint decision-making to the parties, I note that I considered the competing applications across ten paragraphs, namely, [169] to [178] of my judgment. Further:

(a) Although the elder child has been the subject of a psychiatric review at the suggestion of her treating paediatrician,[7] feedback in respect of that review will only become available on 18 July 2025; and

(b) At the time that the mother filed her application, the younger child had not yet completed an assessment to "determine whether she requires a medication review".[8]

Save and except for these reviews, I am not persuaded on the mother's evidence that an order for equal shared parental responsibility and joint decision-making will prejudice the children's welfare between now and 30 July 2025 being the date on which the mother's appeal will be heard by the Full Court.
I accept that the mother's appeal is bona fides. However, the father is equally entitled to presume that my discretionary judgment is correct. Further, I find that neither party will be personally prejudiced by the refusal of the stay application.
By her affidavit in support of the application, the mother asserts that the refusal of the stay application will be prejudicial to the children because it is not in their interests to spend one additional night with their father per fortnight. Particularly, the mother asserts that:

(a) Since the implementation of my orders, and subsequent to spending time with the father, the children have returned to her care in a "heightened state" and have been "unusually hyperactive".[9] The mother says that the children's diagnoses including a diagnosis of an autism spectrum disorder affects "their abilities to cope and adapt to the increase in time with their father, rendering it extremely difficult for them to emotionally regulate and continue with their day-to-day tasks";[10]

(b) Each of the children have returned from their father's care "extremely exhausted and lethargic";[11]

(c) My orders have caused a disruption to the lives of children who "thrive on consistency";[12] and

(d) The father does not assist the children with their homework.[13]

The mother's complaints about the children's behaviour in the period subsequent to the making of my orders, bear a resemblance to the mother's complaints about the children's time with the father prior to and during the final hearing. Particularly:

(a) The mother complained that the children were anxious when spending time with the father;[14]

(b) The mother asserted that the parties were unable to provide a consistent routine and structure for each of the children;[15] and

(c) The mother asserted that the children were dysregulated following time spending with the father.[16]

The mother's submission that the operation of my orders has been detrimental to the welfare of the children is simply an embodiment of the mother's belief, contrary to the cases advanced by the Independent Children's Lawyer. The mother believes that the father does not have the capacity to parent children who have several diagnosed disabilities and medical conditions. Her belief is not objective proof of the fact. Indeed, the father says that the children have enjoyed their time with him, and he has "not observed the children to have any difficulties in coping with the increase of time since the final orders were made".[17] The father also says that he has not "observed the children to be in a heightened state or unusually hyperactive".[18]
I also found that the mother's efforts in the period subsequent to the parties' separation to include the children in the parental conflict has caused the children psychological harm.[19] I expressed concern that if I reduced the children's time with the father in the manner sought by the mother, then it would cement the children's negative view of their father and exacerbate the children's view of the father as "unimportant".[20] If I accede to the mother's application, I would be implementing an outcome, which is profoundly incongruent with my findings as to the risk presented by the mother.
I also recognise that changes in the children's primary living arrangements should be minimised.[21] My orders have been in force for a period of twelve weeks. The mother throughout the final hearing and by her affidavit places primacy on the concepts of structure, routine and consistency. A stay of my orders would be incompatible with the objectives espoused by the mother.
As discussed, the mother's appeal is listed on 30 July 2025. The mother's counsel agreed with my suggestion that the appeal will be heard with expedition.
For these reasons, I dismiss the mother's application for a stay of my final orders. For the same reasons, I dismiss the mother's application for a reinstatement of the parenting orders made by a Senior Judicial Registrar on 17 August 2023.
The father and the Independent Children's Lawyer have made an application for costs. I will reserve the father's costs of the application. Similarly, I will reserve the costs of the Independent Children's Lawyer. I direct that any application and affidavit in support with respect to the question of costs be filed within twenty-eight (28) days of the determination, withdrawal or abandonment of the appeal in relation to my final orders.