Aldridge and Keaton
[2009] FMCAfam 314
•9 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALDRIDGE & KEATON | [2009] FMCAfam 314 |
| FAMILY LAW – Stay of orders pending appeal – whether refusal of stay renders a successful appeal nugatory – consideration of hardship to parties –consideration of merits of the appeal – application of ss.60CC(2) and (3) to non-parents – best interests of the child – application for stay refused. |
| Family Law Act 1975, ss.60CC(2), 60CC(3), 60CC(4), 60B(1) |
| Clemett & Clemett (1981) FLC 91-013 Sampson & Hartnett [2007] FamCA 732 Trahn & Long (No.2) [2008] FamCAFC 194 Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 EJK & TSL (No.2) [2006] FamCA 806 House v R (1936) 55 CLR 499 Gronow v Gronow (1979) 144 CLR 513 Samson & Jacks [2008] FamCA 176 Potts & Bims [2007] FamCA 394 |
| Applicant: | MS ALDRIDGE |
| Respondent: | MS KEATON |
| File Number: | SYC 3130 of 2008 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 6 April 2009 |
| Date of Last Submission: | 6 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Knox |
| Solicitors for the Applicant: | Dettmann Longworth |
| Solicitor Advocate for the Respondent: | Ms Hunter |
| Solicitors for the Respondent: | Inner City Legal Centre |
ORDERS
That the application for a stay of orders be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Aldridge & Keaton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3130 of 2008
| MS ALDRIDGE |
Applicant
And
| MS KEATON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9 February 2009 this Court made final orders in relation to the child, [X] born in 2006 and published detailed reasons for its decision.
The Court made a series of orders which it is not necessary to republish in detail. In summary order (3) provided for [X] to spend time with the Respondent on a graduated basis which ultimately would lead to the child spending one weekend per month with the Respondent. The orders, as provided in orders (4) to (6) and (8) also provided for limited telephone contact and for contact on special occasions. Orders (7) and (9) dealt with change over and communication between the parties.
On 11 March 2009 and as amended on 13 March 2009 the Applicant mother made an application to stay those orders. Specifically, the Applicant made an application to stay order (3), (4), (5), (6), (7), (8), and (9) which I have summarised above. In the alternative, if a complete stay were not granted the Applicant sought that the Respondent’s time with the child be limited to 3 hours a month.
In relation to these proceedings the Applicant relies on two affidavits sworn by her on 12 March 2009 and 3 April 2009.
The Respondent seeks dismissal of the current application and relies on an affidavit sworn by her on 31 March 2009.
I note that at the time of hearing this application, a notice of appeal had been filed.
Relevant law
The law in relation to an application for a stay in parenting orders is well settled. I note in particular the decision of the Full Court in Clemett & Clemett (1981) FLC 91-013 and other more recent decisions which re-affirm the principles to be applied (see for example Sampson & Hartnett [2007] FamCA 732 and Trahn & Long (No. 2) [2008] FamCAFC 194).
Whether or not to grant a stay is a matter of discretion for the Court. It is not a matter of right and each case is to be decided on its merits. It is not necessary for the Applicant to show special or exceptional circumstances: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685.
The onus is on the Applicant to demonstrate that there are appropriate reasons to justify a stay of orders.
Briefly the guiding principles in parenting matters are as follows.
a)Whether refusing a stay will render a successful appeal nugatory or make it impossible or impracticable to restore the position;
b)Any hardship that would be suffered by each party as a result of granting or refusing a stay;
c)The grounds and merits of the appeal;
d)Whether there has been a delay in applying for the stay;
e)The bona fides of the Applicant for the stay;
f)The timing of the appeal; and
g)The best interests of the children are to be given at least significant consideration, if not paramount consideration (EJK & TSL(No.2) [2006] FamCA 806; Sampson & Hartnett (supra)).
I note the decision of the Full Court in Trahn & Long (supra) where the Court noted that a person who has obtained judgment is entitled to the benefit of that judgment and to assume that it is correct.
Whether refusing a stay will render a successful appeal nugatory or make it impossible or impracticable to restore the position.
Ms Knox for the Applicant did not submit that refusing the stay would render a successful appeal nugatory but said that if the stay was refused and the appeal successful this could affect a decision on rehearing. She raised concerns that the child would develop a clinical attachment to the Respondent in the intervening period which Ms Knox claims the child did not have at the time of final hearing. She went further to suggest that if a stay were not granted, this would fundamentally affect the Applicant’s rights at re-hearing because it would allow for the attachment between the Respondent and the child to develop in a clinical sense.
Ms Hunter rejected Ms Knox’s submission in relation to the possible effect of any appeal and said that the Respondent was merely continuing to rebuild a relationship with the child which had started at birth and had been interrupted.
Having considered the submissions, I do not believe that a failure to grant a stay of orders will render a successful appeal or re-hearing nugatory or make it impossible or impracticable to restore the position at the time of trial. At the very least, there is no evidence before me to determine what changes might develop in the attachment between the child and the Respondent in the interim. In particular, I note that the evidence at the trial which I accepted, including the observations of
Mr O’Grady the Court’s appointed Family Consultant, that the child had a warm and significant attachment to the Respondent. Mr O’Grady was very clear on this point, and reiterated it on a number of occasions.
The Applicant seeks to stop the child having any contact with the Respondent. However, the child has had contact with the Respondent since the time of her birth when the Applicant and the child were living with the Respondent at her house in [R], and since then on a regular basis until the child was approximately two years old when the Applicant decided to cease contact. Contact was restored after a period of 6 months and has now been continuing for approximately 9 months.
The child has had contact with the Respondent for most of her life, at varying levels of intensity. There is already a relationship between the child and the Respondent. It is possible that the relationship may grow stronger, or at least become increasingly part of the child’s familiar environment, between now and the date of any final determination of the appeal. However, in my opinion it would be much more deleterious to the child if contact with the Respondent was to be abruptly ended or significantly limited with consequent abrupt changes to the child’s regime and the potential for the child to be left wondering why the Respondent has suddenly disappeared from her life, let alone, the difficulties of potentially re-establishing the relationship at some future time. If an appeal was successful and the contact arrangements changed in the future, there is no evidence before me that a failure to stay the orders now, will in any way limit the options available at re-hearing. In fact, if I were to grant a stay, including a partial stay as proposed by the Applicant, I am of the opinion that would be far more likely to render an appeal nugatory because of the difficulties in re-establishing a relationship between the child and the Respondent which the Applicant opposes.
Any hardship that would be suffered by each party as a result of granting or refusing a stay
Ms Knox contends that if I refuse a stay the Applicant will suffer hardship. She points to the Applicant’s affidavit which sets out the stress the Applicant suffers as a result of the child having contact with the Respondent.
Ms Hunter for the Respondent drew the Court’s attention to the Respondent’s affidavit which detailed her efforts to constructively engage with the child and to build a successful on-going relationship. As stated by the Full Court in Trahn v Long (supra) the Respondent is entitled to the benefit of previous judgments and to act as if it were correct. This is what she has done.
I note that the original proceedings were brought by the Respondent so that contact between the child and herself could be restored after contact was ceased by the Applicant. I noted in my judgment at [194] that: “The relationship between the child and the [Respondent] is warm and they have a close attachment” and this was based on extensive evidence given by the Applicant and Respondent at hearing and the evidence provided by the report writer.
I accept that there is hardship for each party irrespective of the order I make. However, on balance, I believe the hardship will be greater for the Respondent who has had an on-going relationship and attachment to the child since the child was born and is trying to rebuild that relationship after a period when contact was ended by the Applicant.
I accept that the refusal to grant a stay of orders will cause stress to the Applicant but I note that by not granting a stay she will in fact have less interaction with the Respondent than has been the case to date because contact visits will become less frequent, albeit for longer periods.
The Applicant mother raised concerns about the Respondent being able to adequately care for the child and gave details of an incident on
7 March 2009. This version of events was clarified by the Respondent who says that she was in fact close to the child at the time and had merely reached back to pick up the child’s bag. Whilst it is entirely understandable that the Applicant has some anxiety about the child when she is in the care of the Respondent, there is no evidence of any danger to the child.
The grounds and merits of the appeal
I note that the appeal notice has been filed and sets out nine grounds of appeal. Ultimately, these are a matter for the Appeal Court to determine. However, I make the following observations.
The first ground of appeal says that I was in error and that I miscarried when I found that orders (3) to (9) were in the best interests of the child. In relation to this ground it is well established that an appeal court will view with considerable caution an appeal point based on a challenge to the weight given to evidence. I refer in particular to House v R (1936) 55 CLR 499 and the decision of the High Court in Gronow v Gronow (1979) 144 CLR 513 at 519 to 520 where Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, 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.
There was a great deal of evidence before me in this matter and my decision was based on that evidence. It is clear from the authorities that an appeal court does not lightly overturn a trial court exercising its discretion as to the weight to be given to particular aspects of evidence and determining the best interests of the child.
In relation to ground (2) this would appear to be more a submission.
I note that at trial there was only limited evidence on the long term impact of a parenting order on the child and this was in the context of equal shared parenting arrangements. My consideration of this issue was appropriate given the limited evidence before me on the long term impact of the child spending time with the Respondent and my ultimate finding that sole parental responsibility should be afforded to the Applicant. In any event, I did give weight to evidence as to the impact on the child of a permanent separation from the Respondent as well as the long term issues in relation to her parentage and the circumstances in which she was conceived.
I also considered the ability of the parties to communicate and the
on-going conflict between them although I did find that their communication had remained civil and there was extensive evidence on this point. At paragraph [173] of the reasons for judgment
I specifically outlined the impact on the child of ongoing conflict/poor communication between the parties and made orders accordingly in the child’s best interests.
In relation to ground (3), this claim is so generalised that it is difficult to deal with it. The Court had before it an application for a parenting order and upon weighing all of the evidence I concluded that a parenting order should be made. Although an attachment between the child and the Respondent formed part of the reasons for making a parenting order, given all the circumstances of the case a parenting order was only made when it was found to be in the best interests of the child. This reasoning also applies to ground (8) as the orders were made on the basis of the evidence given to the Court in the particular circumstances of case and not merely because the Respondent had standing to apply for a parenting order. My conclusions made it clear that I considered it in the child’s best interests that a parenting order be made and be made in terms of the orders.
Ground (4) says I was in error when I accepted the evidence of
Mr O’Grady, the family consultant. Mr O’Grady was the court appointed expert who was properly qualified to give evidence.
His qualifications as provided in the family report indicate that he is a registered psychologist who has “worked in various senior clinical roles for over twelve years, and in the areas of mental health, trauma, substance dependence, child protection and forensic”. It was a matter for the discretion of the Court as to what parts of his evidence were accepted and the weight given to his evidence. I also gave consideration to the presumption Mr O’Grady made in relation to both parties being parents of the child and found that the presumption had not affected his assessment of the attachment formed between the child and the Respondent. This is because his assessment was simply an observation of the parties’ interaction with the child during their interview at his practice rooms. Mr O’Grady clearly stated in cross-examination that from his observations he “certainly observed attachments as being characterised by warmth and a sense of safety from the child’s point of view”. He qualified this by agreeing that it was not a primary or secondary attachment as might be the case with a mother or father of a child. Similarly, I also found that his findings in relation to the parties parenting styles were not affected by his presumption that both parties were parents, but were also based on his observations with the child.
Ground (5) asserts that five of my findings were not supported by any evidence. The first two of these findings related to the Applicant and were supported by the evidence given by the Applicant herself during cross-examination. Particulars (5)(iii) and (iv) refer to the Respondent continuing to be a significant figure in the child’s life, with the child having an attachment to her. This was supported by the evidence of the family report writer and to some extent agreed to by the Applicant in cross-examination. In relation to (iv), I am of the view that it would be difficult to argue that the judgment implied there was an attachment in the clinical sense between the Respondent and the child, as the judgment reiterated on various occasions that there was no such finding by the family report writer.
In relation to particular 5(v), the final orders that I made were in the best interests of the child and designed to assist the parties to develop stability in their lives and best manage the circumstances which apply. This conclusion was drawn after extensive affidavit evidence and two days of oral evidence, and was set out under the heading ‘whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings’. The evidence before me at trial was that the parties had been uncertain as to the role of the Respondent in the child’s life after the child was conceived and had been in conflict as to how much time the Respondent was to spend with the child. The orders clarify the parties’ roles in the child’s life: they make it clear that the Respondent is not a legal parent and provides sole parental responsibility to the Applicant. The orders also clarify how much time the Respondent is to spend with the child and assists in solving their conflict by providing a legal determination.
In relation to grounds (6) and (7) which contest the weight of evidence to support my findings, I refer again to the decision of the High Court in Gronow v Gronow (supra) and House v R (supra) that the weight of the evidence is for the decision maker at trial to decide. Comprising both grounds are at least 8 particulars and although I do not propose to deal with them in detail, there was evidence to support the weight of these findings, including:
§The Applicant clearly agreed in cross-examination that the Respondent had been a significant figure in the child’s life and that due to Court orders she still was. There was also extensive evidence about the agreement reached between the parties after they separated concerning the continued role the Respondent played in the child’s life;
§The Applicant agreed in cross-examination that there is a benefit to [X] experiencing a style of family that is different from hers. The report writer also clearly stated that the main benefit of the child having time with the Respondent was that she would have an alternative parenting environment and that if the parties were cooperative there would be a number of benefits for the child;
§The Respondent identified her own inability to care for Ms K and did make appropriate arrangements for Ms K. This was the evidence provided which was not contested and was accepted by me;
§Having assessed all of the evidence and the particular circumstances of the case, I found that the orders I made were in the child’s best interests and would serve to provide a long term stable environment for her and that it was appropriate to make orders which provided the child spend time with the Respondent;
§I placed weight on the evidence relating to the parties’ ability to remain civil because it went directly to issues concerning the child’s best interests. In cross-examination the Applicant agreed that there had been no evident problems at handover. The family report writer also noted that the “prevailing Saturday morning arrangements ha[d] seemingly been devoid of any incidence”. Although there was evidence that the parties were finding it difficult to communicate at various stages following their separation, there was no evidence to indicate that this had been anything other than civil or that it was affecting the child;
§The Applicant has complied with all orders of this Court to date and I had no concern that that would change; and
§The weight of evidence relating to the Respondent’s mental history was that there had been no circumstances where the Respondent was unable to care for the child, [X], due to any mental health issues.
Turning to appeal point (9) Ms Knox referred at hearing to the remarks of O’Ryan J in Samson & Jacks [2008] FamCA 176 which referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 which indicate that when considering parenting orders, considerations in the Family Law Act 1975 (Cth) (‘the Act’) which refer to a parent do not need to be considered when dealing with a person who is not a parent.
Specifically, Moore J stated at [8]:
“Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent.
This principle was clarified in the same paragraph:
However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.
Neither O’Ryan J nor Moore J indicated that the Court is in any way prohibited from considering the elements raised in various sections of the Act that refer to ‘parent/s’ if it was felt necessary for the Court to deal with all of these considerations in determining the best interests of the child in cases which do not involve both biological parents.
In this case I considered it particularly important to deal with some of the elements set out in the section because of the unique circumstances of the case. I further articulated that some sections of the Act do not apply to the Respondent because she is not a parent for the purposes of the Act. For example, I stated at paragraph [145] that there was no presumption of equal shared parental responsibility or in fact any need to allocate parental responsibility to the Respondent. Notably, in relation to s.60CC(2)(a), I stated at [156]: “I have found that the applicant is not a parent of the child under the Act and consequently this section does not apply to the applicant”.
However, I did consider the Respondent in relation to ss.60CC(3)(c), (e) and (i) of the Act because these issues were in my opinion relevant to the determination of the child’s best interests because the underlying principles of those sections as they applied to the Respondent were raised in evidence. As discussed in the judgment, there was an issue concerning the parties’ difficulty communicating with each other and the evidence at trial showed that the Applicant evinced an intention to remove the Respondent from the child’s life. Therefore it became relevant to determine whether the Respondent also had such an intention in relation to the Applicant. This was important as the Applicant was the child’s primary carer.
In considering whether or not it would be practicable to make an order to grant time for the Respondent with the child, a relevant consideration is the difficulty and expense of the child communicating with the parties.
In relation to paragraph (i), the Respondent’s attitudes to parenthood were clearly an issue raised, more particularly through the Applicant’s various submissions that she had fears as to the Respondent’s ability and willingness to care for the child. This was discussed in the judgment in some detail and was a very relevant consideration in whether time between the Respondent and the child would be in the child’s best interest.
As indicated in the wording of the statute, paragraphs (3)(c) and (i) are related to s.60CC(4). However, I clearly stated that s.60CC(4) did not apply to the Respondent. I am of the view this further highlights the fact the principles in those paragraphs were considered because they were relevant on the evidence.
I note that the decision of Moore J in Potts & Bims (supra) suggest that those factors above could be considered under paragraphs (f) and (m). However, because those factors were appropriate to both the Applicant, being a parent, and the Respondent, I am of the view that it was appropriate to consider these factors together under one heading rather than considering the issue separately for the Applicant and then separately for the Respondent under another heading. What is important is that all relevant factors in determining the best interests of the child are considered rather than placing importance on the order in which they are considered. It is my view that the judgment, through various statements, makes it clear that the Respondent was not a legal parent and that some factors did not apply to her.
In any event, the Respondent was clearly acknowledged by the Applicant as her partner and had been involved at every stage of the decision to have a child, the process of conception, the birth of the child and the care of the child after birth whilst she and the Applicant were living together. Although in my judgment I found that the Respondent was not a parent for the purposes of the Act, I did note at paragraph [163] that the parties had discussed the possibility of the Respondent becoming a co-parent functionally in the child’s life.
This is a very different situation to that of a grandparent or a relative of a biological parent. The facts in this case are in my view easily distinguishable from those in Potts & Bims and Samson & Jacks (supra). Here there were two parties in a long-term relationship which may or may not at a particular point in time have been a de facto relationship for the purposes of the Act. In fact as has been observed on many occasions, de facto relationships can wax and wane over various periods and the nature of the relationship may change. In my judgment at [112] I said:
Perhaps the most difficult task in this regard is determining the point at which relationships cross an invisible line to become one recognised by law. This idea was espoused in Houston v Bulter (supra) where Dutney J stated at [70]:
It is of the nature of many de facto relationships that they develop over a period of time and a precise moment crosses the line to become one recognised by legislation is often difficult to discern.
Without the ‘solemnities and formalities’ by which some hetero-sexual couples declare that relationship in marriage, same-sex relationships are fluid in the sense that it is difficult for them to discern what, if any, circumstances will carry them across an invisible threshold to be a relationship recognised by law.
The parties had each been part of the decision for the Applicant to have the child and had each been involved in the process of conception, the birth of the child and living together and raising the child after birth.
It would be strange indeed if it were considered wrong for a trial court to have regard to all of the circumstances set out in s.60CC as relevant to determining the best interests of a child given these facts. Although Ms Knox sought to portray the Respondent as no more important in the child’s life than a day care worker, this is quite inconsistent with the facts in this case. In the judgment at paragraph [98] I refer to the role the Respondent has had in the child’s life:
I note also the [Respondent’s] evidence that she reduced her work hours and shared in the care of the child during the first ten months of her life. I note also that prior to the [Applicant] moving in with the [Respondent], the [Respondent] spoke to her daughter and her partner Mr H with a view of renovating the residence to accommodate the [Applicant] and the baby.
This is highlighted at [144] where I found that:
Clearly, the [Respondent] has played a major role in the child’s life. She was actively involved in caring for the child after birth and has continued to be a significant figure in the child’s life.
Whether there has been a delay in applying for the stay
There has been no delay by the Applicant mother in applying for the stay.
The bona fides of the Applicant for the stay
There is no evidence to suggest that application has been made for any purpose that is not bona fide.
The timing of the appeal
Ms Knox advised that an expedited hearing of an appeal is likely to take place in August or September this year.
Ms Hunter noted in her case outline that without expedition an Appeal would likely be heard in November or December this year.
Although overnight time takes effect in November this year, I can see no issue in relation the timing of the Appeal which can justify a stay of orders. It is clear that an appeal is likely to be heard within a reasonable period of time and that the time lapse is not so great as to limit the discretion of the appeal court in any way.
Best interests of the child
Ms Knox argues that I have caused significant stress to the Applicant as a result of the orders and that this is potentially harmful to the child who is picking up on the Applicant’s stress. She also refers to the telephone contact between the Respondent and the child causing stress and conflict and says it is not appropriate for a child of this age.
Ms Knox also refers to the child being unwilling to visit the Respondent.
I have given extensive reasons as to why I decided it was in the child’s best interests to spend time with the Respondent notwithstanding the Applicant’s desire to exclude the Respondent from the child’s life and to do so on a graduated basis leading to overnight contact once a month. The issue of communication between the parties was raised at trial and there was considerable evidence that the parties could communicate civilly despite occasional difficulties and that the existing regime of weekend contact was working satisfactorily despite some stress on the part of the Applicant.
I also provided for telephone contact so that the child could have contact with the Respondent periodically between visits and I note that this telephone contact was greatly restricted as opposed to the contact that may be appropriate for older children. I weighed very carefully all of the factors in relation to the relationship between the Applicant and the Respondent including the orders made by Federal Magistrate Coakes on the application made by the Respondent and the orders made when the Applicant made an application for a stay of those orders.
Ms Knox argued that it was not in the child’s best interests to have contact with the Respondent either at all or in the alternative for a very limited period because the final conclusion of the appeal may be that the child has no contact with the Respondent.
In all the circumstances I believe it is in the child’s best interests to continue spending time with the Respondent periodically on the basis set out in the orders. The child is only 3 years old and has already had a gap of 6 months in her relationship with the Respondent because of the Applicant’s decision to stop contact. The child has been spending regular time with the Respondent since August last year and it would seem to be potentially much more harmful to the child for there to be another break in her relationship with the Respondent, if at the conclusion of the appeal process time with the Respondent was to be resumed which I believe, as outlined above, is in the child’s best interests and therefore is the most likely outcome.
I considered a limited stay of order 3(d) given the Applicant’s anxieties. However, in light of the evidence given at trial that the Respondent had after separation had the child for long periods, and the Applicant even after expressing concerns about the child’s safety had on occasion left the child in the care of the Respondent overnight, I decided that such an interruption to the contact regime was not warranted, and was not in the child’s best interests.
Accordingly, if I were to grant the stay and stop contact between the Respondent and the child or in the alternative limit that contact to three hours per month, there is in my view, potentially a much greater adjustment for the child who may by the time an appeal is heard have established new routines and lost her existing relationship with the Respondent.
Conclusion
The decision to grant a stay is a discretionary one with the onus on the Applicant to demonstrate a proper basis for a stay. On balance having considered all of the matters outlined in these reasons I am not satisfied that the circumstances in this case warrant a stay being granted.
The Applicant mother’s application is therefore dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate:
Date: 9 April 2009
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