McDevitt & Duchamps (No 4) [2025] FedCFamC1F 467 (4 July 2025)

1. The Mother be permitted to relocate the residence of [X] to the United States of America on from 7 July 2025, being the Monday following the conclusion of the school term.

1. The operation of order 21 of the orders made 23 June 2025 is stayed pending determination of the father's appeal.
2. The balance of the father's application in a proceeding filed 23 June 2025 is dismissed.

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

1. The matter concerns a stay of parenting orders made by me on a final basis on 23 June 2025. Those orders provided for the mother to be able to relocate with X to the United States of America, and there were specific orders for time. Those orders also provide for sole parental responsibility to the mother.
2. The matter was listed earlier this week at a time when a notice of appeal had not yet been filed by the father, and the matter was listed today in anticipation that would be filed, which has happened. The solicitor for the mother has indicated that there is no opposition to a stay being granted with respect to orders 8 and 17 of the final orders, that being the order permitting the relocation and, at order 17, the order for X to be removed from the watch list.
3. There is, as I understand it, issue now with whether or not the ICL should be authorised and directed to return to the mother her passports upon the making of these orders. Additionally the ICL is holding X's passports. Order 21 permits the mother to retain X's Australian and United States passports and that would seem to be the order in contention as to whether or not that should also be stayed. So the issue is with respect to orders 8, 17 and 21.
4. The principles upon a stay application can be seen from Aldridge & Keaton [2009] FamCAFC 106. Those are that:
   • it is not necessary for the appellant to demonstrate special or exceptional circumstances
   • the mere filing of an appeal is an insufficient basis for granting a stay
   • a person is entitled to the benefits or fruits of the judgment
   • a person who has obtained a judgment is entitled to presume it is correct
   • a Court may consider the bona fides of the application for a stay
   • a Court may grant a stay on just terms to all parties
   • the Court is required to weigh the risk of the appeal being rendered nugatory if a stay is not granted, and that is considered to be a substantial factor.
5. There should be a preliminary assessment of the strength of the appeal and whether there is an arguable case, the desirability of limiting frequent changes in the living arrangements for children, the period of time for the appeal to be heard, and whether existing satisfactory arrangements support the granting of a stay for a short period. Given the concession made today that a stay should be granted with respect to the relocation and X remaining on the watch list, that removes some of the issues with respect to the concern that failing to grant a stay may render an appeal nugatory. That is because as I understood the father's material, he was concerned despite the Hague Convention and requirements under that, the mother may not return to Australia with X, were she required to do so by the Full Court. That is no longer an issue.
6. In terms of weighing the factors for and against the stay of the orders insofar as it concerns a change of the child's care arrangements, the orders provide for X to live with the mother, and spend time with the father in week 1 from the conclusion of school or otherwise 3 pm Friday until the commencement of school or otherwise 9 am Monday, and that there be time in the other week, overnight Thursday to Friday, and during school holiday periods. These are in effect until the mother leaves Australia.
7. Turning to consider the merits of the appeal, much of the notice of appeal is concerned with weight findings, which are findings that are often difficult to overturn on appeal given the particular advantage of a trial judge in weighing the evidence. The ground of appeal referring to insufficient weight with respect to 60CC(2)(a), which is the sixth ground referring to a meaningful relationship, refers to the legislation prior to the amendments. It does not take into account issues of the child's safety which is what 60CC(2)(a) now refers to. This section no longer exists. So, clearly, that ground is without merit.
8. Otherwise, in considering the merits of the appeal, these orders were made after a lengthy hearing. The concerns about family violence are clearly in line with what is required by the legislation in terms of weighing and considering those matters. As to whether a stay should be granted changing the time arrangements or sustaining the time arrangements pursuant to the current orders, I take into account that those orders go nowhere towards rendering an appeal nugatory. Any orders made by the Full Court could reverse or vary those arrangements. X will be present in Australia for that to occur.
9. The strength of the appeal requires only whether it is an arguable case which is, on any view, a fairly low bar. Looking at the grounds of appeal, those grounds do not suggest great strength in the appeal particularly as it relates to, setting aside the international relocation, time arrangements between X and her parents whilst the mother remains with her in Australia. Whilst I accept there is a desirability to limiting frequent change for children in their living arrangements, the mother's solicitor makes the point that there has already been a changeover at this Court where the ICL, assisted by a Court Child Expert has explained the orders to the child. Those orders were put in place because of the concerns about family violence, which are set out in some detail in the judgment. Similarly, the order for sole parental responsibility was made apart for those reasons, apart from the geographical issue. Those factors, again, are not rendered nugatory if the stay is not granted.
10. In terms of impact on X, the orders address concerns for her safety and cementing, as I think the court child expert put it in her evidence, the relationship with the mother given the disruptions that have previously occurred. I note the submission by solicitor for the mother about the period where the child was removed by the father from the United States. Both parents have done that once without notice to the other. Putting in place orders with respect to time would, in my view, provide certainty of arrangements for X, provide clear guidelines to the parents about those time arrangements in the light of the findings with respect to family violence, and put in place an arrangement for X that promotes her safety. I am not convinced those orders should be stayed.
11. As I understand it, appeals are running at about three months. So one would expect there would be a fairly speedy turnaround on the appeal of the matter.
12. Turning to the passports, the ICL will continue to hold the passports for X. Although they are sought to be released by solicitor for the mother, there does not appear to be any solid basis for that. No visas are required for X to enter America given that she is an American citizen, and has a passport.
13. The mother submits she requires her passport for tax purposes and other matters. The father opposes that but, quite frankly, the submissions around that did not make a great deal of sense given that it is X's passports that are being held which will not permit X to travel, those passports being both Australian and American.
14. I propose therefore staying the operation of orders 8 and 21 pending determination of the appeal. Otherwise, the mother is entitled to the fruits of the litigation, as the expression goes, and I do not propose to stay any of the other orders currently in operation.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Boyle.