Barber & Khatri

[2021] FamCA 296

FAMILY COURT OF AUSTRALIA

Barber & Khatri [2021] FamCA 296

File number(s):	MLC 9649 of 2018
Judgment of:	WILLIAMS J
Date of judgment:	13 May 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for Stay of Orders pending Notice of Appeal being determined – Substantive proceedings.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 68R, 68S, 102NA
Cases cited:	Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Number of paragraphs:	64
Date of hearing:	4 May 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Marchetti
Solicitor for the Applicant:	KS Family Law
The Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Ms Hutchings
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

ORDERS

MLC 9649 of 2018
BETWEEN:	MS KHATRI Applicant
AND:	MR BARBER Respondent

ORDER MADE BY:	WILLIAMS  J
DATE OF ORDER:	13 MAY 2021

THE COURT ORDERS THAT:

1.The applicant mother’s Application in a Case filed 23 April 2021 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barber & Khatri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Williams J

INTRODUCTION

1. This is an application by the mother for a stay of the Orders made by this Court on 26 March 2021.

2. The mother and father are the parents of the child Z born in 2012. They are involved in substantive proceedings concerning the living arrangements for their son Z, which as at the date of the orders of 26 March 2021 had occupied 9 days of final hearing.

3. The final hearing of the substantive proceedings commenced on 14 October 2020 and proceeded electronically.

4. The trial is scheduled to continue for a further three days commencing 24 May 2021, when it is anticipated that it will conclude.

5. On 23 April 2020, after a defended hearing, orders were made by Senior Registrar Field pertaining to Z’s living arrangements. The orders provided for Z to live with his mother and during school term, to spend four nights a fortnight with his father, and to spend half of school holidays with his father.

6. On 22 May 2020, the mother filed an application to review the decision of the Senior Registrar which was listed before me on 1 September 2020, when that decision was reaffirmed by me, save to the extent that the issue of Z spending time with his father during the school holidays was to be reserved to the trial which was due to commence on 14 October 2020.

7. During the trial there were a number of attempts by the mother to change Z’s spend time arrangements with his father, so that Z did not spend overnight time with his father, rather day time, as has always been the position of the mother. The last such attempt occurred in February 2021, when the mother filed an Application in a Case seeking a variation of the interim parenting orders to daytime only. That application was unsuccessful.

8. On 4 January 2021, Orders were made by consent providing for Z to spend substantial time with his father during the summer 2021 school holidays, including periods of overnight time. Notation B to those orders was as follows:

   The Orders of 1 September 2020 and 23 April 2020 concerning arrangements for Z continue to operate in full force and effect.

9. On 4 January 2021, the mother also provided an undertaking to the court to comply with all parenting orders made pursuant to the Family Law Act concerning the child Z.

10. On 18 March 2021, the mother applied to the Magistrates’ Court at Suburb B to vary an Intervention Order to provide that the father’s overnight time with Z be suspended and that he spend day time only with his father.

11. The application was made in the absence of the father, on an ex parte basis and according to the mother, lasted between 5 to 10 minutes. At that time, the trial had been adjourned part heard, and has previously been mentioned was scheduled to resume on 24 May 2021.

12. 18 March 2021, a magistrate at the Suburb B Magistrates’ Court made the following order:

    10.At the time of making this interim intervention order, the Court has also made an order under section 68R of the Family Law Act 1975. The court has ordered that the parenting order made on 23/04/20 is:

    VARIED NOT TO ALLOW Z TO SPEND OVERNIGHT TIME WITH HIS FATHER.

13. On 23 March 2021, the father was served with a copy of the ex parte intervention order, and as a result, inquiries were made by his legal representatives through the registry of the court for an urgent listing. The matter was listed by my chambers for 26 March 2021.

14. On 26 March 2021, both parents were represented by Counsel, with the mother being represented by the Counsel who had represented her during the trial. On that day, Counsel for the mother had prepared lengthy written submissions, which he subsequently sought leave to amend, and which were in due course amended.

15. Submissions were made by Counsel for both parents and the Independent Children’s Lawyer and Orders were made by me on that date as follows:

    THE COURT ORDERS UNTIL FURTHER ORDER:

    1.That the child Z (male) born in 2012 (“the child”) spend time and communicate with the Husband as follows:

    (a)during school terms, each Wednesday and alternate Friday commencing 19 March 2021 when the child is not spending overnight time with the Husband, from the conclusion of school until 6:30pm, with the Husband to collect and deliver the child from school or Resources Centre;

    (b)during school terms, from the conclusion of school Friday until 6:00pm Sunday of each alternate weekend, commencing the 26 March 2021, with changeover to occur at the C Resources Centre on the Sunday;

    (c)such further or other times as agreed between the parties in writing (including by text message).

    2.That for half of all the school term holidays, the child spend time and communicate with the Husband on a week about basis as agreed between the parents, and in default of agreement, as follows:

    (a)for the first half of each school term holiday, from the conclusion of school to 6:00pm a week later; and

    (b)for the first week of long summer school holidays, and each alternate week thereafter during these holidays.

    3.Pursuant to sec. 68Q of the Family Law Act IT IS NOTED THAT these Orders are inconsistent with a family violence Order made in March 2021 by the Magistrates’ Court of Victoria at Suburb B (Case No ...) AND IT IS DECLARED THAT to the extent of any inconsistency the family violence Order is invalid.

    4.The Mother shall and is hereby directed to:

    (a)By not later than 31 March 2021, provide to the Registrar of the Magistrates’ Court of Victoria at Suburb B a copy of these Orders with a request that copy of these Orders be forthwith included in the file of Case No ...; and

    (b)Forthwith bring these Orders and a copy of the court transcript of 26 March 2021 to the attention of any Court considering any family violence Order or any Order made pursuant to the Family Law Act (1975) involving the Mother and/or the father and/or the child; and

    (c)Forthwith bring these Orders to the attention of any Police Officer requested by her to be involved pursuant to or in connection with the family violence Order made by the Magistrates’ Court of Victoria at Suburb B (Case No ...); and

    (d)Forthwith notify the Court and the other parties in these proceedings of any Order sought and/or obtained by her or on her behalf that would have the effect of varying or causing the time spent by the child in his father’s care pursuant to these Orders to be altered.

    5.The mother forthwith provide to solicitors for the father and to the ICL full copy of her complaint to the Magistrates’ Court of Victoria at Suburb B as made in March 2021, together with a certified transcript and recording of the hearing in the Magistrates’ Court of Victoria at Suburb B in March 2021.

    6.The father and the Independent Children’s Lawyer’s costs of this day, fixed in the sum of $1,610.00 each, be reserved.

    7.The Independent Children’s Lawyer be permitted to provide to the relevant department a copy of these orders and the transcript of today’s proceedings.

    8.The Registrar of this Court forthwith make a request to the Registrar of the Suburb B Magistrates’ Court to produce to this Court the file/s relating to any application made by either of the parties to the Magistrates’ Court and upon production, all parties be at liberty to inspect and copy the file/s of the Magistrates’ Court.

    9.Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

    THE COURT CERTIFIES THAT

    10.That the trial commenced on 14 October 2020 and the matter has, to date, been listed on the following dates:

    (i)        14, 15, and 16 October 2020;

    (ii)       4 and 5 November 2020;

    (iii)      11, 18, and 21 December 2020;

    (vi)      4 January 2021;

    (vii)     4 February 2020; and

    (viii)     26 March 2021

    AND the Court further certifies that, pursuant to Rule 19.50 of the Family Law Rules 2004, it was reasonable to engage counsel to attend for the parties on a Defended Hearing basis.

    AND THE COURT NOTES THAT

    A.The matter has been part-heard over 12 days, as detailed above, and is listed for further hearing (3 days) on 24 to 26 May 2021.

    B.The Mother is and continues to be bound by the Undertaking provided by her on 4 January 2021 to comply with all parenting Orders made pursuant to the Family Law Act concerning the child Z.

    C.The Mother made an application on 4 February 2021 to reduce the child’s time in his father’s care, with the effect that the child spend no overnight periods in his father’s care. The Court did not make the Orders sought by the mother.

    D.The provisions set out at Orders 1 and 2 above are in the same terms as provided in the Orders of 23 April 2020.

    E.An appointment with Dr D (paediatrician) is scheduled for Saturday, 27 March 2021, at which time it is intended that the father shall attend with the child, in the absence of the mother.

    F.The Father will seek, as part of the final Orders, a declaration pursuant to sec 102QB to the effect that the Mother is a vexatious litigant.

16. On 20 April 2021, the mother filed a Notice of Appeal on her own behalf. Her lawyers do not appear on the face of the document.

17. On 23 April 2021, the mother filed an Application in a Case and supporting affidavit, again on her own behalf. That application seeks the following orders:

    1.That the Orders made by the Honourable Justice Williams on 26 March 2021 be stayed pending an appeal being heard and determined in this matter;

    2.The Orders made by the learned Magistrate on 18 March 2021 be given full force and effect;

    3.The Trial in relation to this matter (which is part heard) be adjourned pending the outcome of the interim appeal.

18. The mother’s application was listed before the Court on 4 May 2021. On that day, her former counsel, Mr F and her former solicitor, Mr G appeared as a courtesy to the court, but they did not appear on behalf of the mother to pursue the orders sought in her Application in a Case.

19. Both Mr F and Mr G sought leave to withdraw from acting on behalf of the mother, primarily due to funding issues. Mr F submitted that he was in a position of compromise in terms of continuing to act on behalf of the mother and that his withdrawing from the proceedings was both consistent with the Victorian Bar Rules and the Uniform Bar Legislation. Mr G also faced similar funding issues.

20. Leave was granted to both practitioners to withdraw from acting on behalf of the mother. During the submissions it was submitted that an order should be made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), so that the mother could approach Victoria Legal Aid for a new firm of solicitors to be appointed to act on her behalf. Such an order was required because of the Intervention Order between the parties and that at the resumption of the trial, it would be likely that the mother would seek to reopen her case and again adduce further evidence, which would result in the father also seeking leave to do so, and with both parties being cross-examined.

21. I made an order pursuant to the relevant section to enable the mother to be represented through Victoria Legal Aid.

22. The mother represented herself in relation to the Application in a Case and the father and Independent Children’s Lawyer were both represented by Counsel. The mother informed the Court that she had prepared the Application in a Case and supporting affidavit without assistance from her lawyers, or indeed any lawyer, and that she would represent herself in submissions.

    Documents relied upon by the parties

23. The mother relied upon the following documents :

    (a)Application in a Case filed 23 April 2021;

    (b)her affidavit in support filed 22 April 2021;

    (c)Notice of Appeal filed 20 April 2021.

24. The father relied upon the following documents:

    (a)documents obtained from the Suburb B Magistrates’ Court file pursuant to orders made on 26 March 2021, namely from the duty lawyer to Suburb B Magistrates’ Court dated 5 March 2021 and an email from the mother to the Suburb B Magistrates’ Court dated 18 March 2021;

    (b)transcript of the hearing on 26 March 2021.

25. The Independent Children’s Lawyer did not specifically rely upon any documents, although Counsel for the Independent Children’s Lawyer adopted the submissions of Counsel for the father, who relied on the documents referred to in the previous paragraph.

26. I will firstly address the mother’s application for a stay of the orders of 26 March 2021.

    Applicable Law- Stay application

27. The Full Court of this Court referred to the applicable principles relating to a stay application in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton”). At [18] their Honours Bryant CJ, Boland and Crisford JJ said:

    [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 (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). 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.

28. The submissions on behalf of the mother were as follows:

    (a)the father was aware of the intervention order proceedings in the Magistrates’ Court and did not attend the Court on at least four hearing dates;

    (b)she believes the Magistrates’ Court is the appropriate venue for her the father to agitate any variation he seeks the intervention orders made by that court;

    (c)she questions the circumstances in which the matter was listed for hearing before me on 26 March 2021;

    (d)she should have been accorded procedural fairness to respond to the father’s affidavit filed in anticipation of the hearing on 26 March 2021;

    (e)the Court should have made procedural orders requiring the father to make a proper application to the Court arising from the intervention order proceedings;

    (f)she believed the magistrate had access to other affidavits including the psychiatric and family report of Dr J, which she had previously provided to the Magistrates’ Court;

    (g)she has considerable concerns for Z because of the matters deposed to in paragraph 46 of her affidavit including Z’s deteriorating behaviours of aggression and self-harm following recommencement of overnight time with his father, the father’s medical neglect of the child, Z continued to express fear and distress at spending long periods of overnight time with the father, and the father’s manipulative, rigid, aggressive and abusive behaviour towards her in response to her concerns for Z;

    (h)all of the factors referred to in the previous paragraph indicated that the father is unable to provide a safe environment for the child in his care during long periods of overnight time.

29. The submissions on behalf of the father were as follows:

    (a)the Orders pertaining to the arrangements for the child made by Senior Registrar Field on 23 April 2020 and confirmed by this Court on 1 September 2020, were long-standing in nature and the orders of 26 March 2021 continued the same regime for the child;

    (b)in her affidavit in support, at paragraph 9 and onwards the mother deposes to applications for intervention orders effectively continuing since June 2018, whereas the documents provided by the Suburb B Magistrates’ Court file, emails from the duty lawyer to the Court dated 5 March 2021 and emails from the mother to the Court dated 18 March 2021, refer to the mother’s subsequent application where she is seeking a notation on the final intervention order for the father to have daytime “access” to Z;

    (c)the submissions made by the mother’s Counsel on 26 March 2021 that the mother’s application was long-standing, the father had notice and just did not attend, are not correct when seen in the context of the emails referred to in the previous paragraph;

    (d)the application to the Magistrates’ Court was an orchestrated effort to undermine the ongoing orders of the Family Court;

    (e)the mother was clearly aware that the Magistrates’ Court was not the correct forum to seek a variation of the orders pertaining to Z’s parenting arrangements, as this is clearly referred to in the email of the duty lawyer dated 5 March 2021, where she states:

    I have advised Ms Khatri that this is not the correct forum to seek a reduction of time. She instructs that she is not wanting to suspend the Family Court Orders. There are current proceedings on foot in the Family Court. If this court is not minded to make an order to this effect reducing his time, my client would agree to abandon her application to suspend the Family Court Orders.

    (f)this Court is seized of the determination of the best interests of Z and should continue to its eventual determination;

    (g)the Court has heard extensive evidence from Z’s treating psychologist, Ms H over a two-day period;

    (h)there is no merit in seeking to stay orders which have been in place since April 2020;

    (i)paragraph 39 of her affidavit in support refers to a heading Mr Barber’s recent contravention of Family Court Orders dated 26 March 2021 without reasonable excuse, whereas the reality of the facts deposed to in that paragraph demonstrate that it was the mother who failed to comply with orders to provide Z for holiday time with his father on 1 April 2021 and Z was actually provided to his father on 4 April 2021;

    (j)the mother avoided complying with the orders on the pretext that Z required a further COVID-19 test, being the fifth or sixth COVID-19 test Z has been subjected to during the course of the substantive proceedings;

    (k)her conduct referred to in the preceding paragraphs is demonstrative of her lack of bona fides and highlights the continual aspects of her non-compliance with court orders;

    (l)the grounds of appeal lack merit as follows:

    (i)the assertion that the court did not consider section 68R of the Act during the hearing on 26 March 2021 is incorrect, as the transcript reflects that the court was aware of the family violence allegations and the intervention orders;

    (ii)the second ground of appeal, that the trial judge placed no weight on the power of the learned Magistrate to consider the family violence implications that were before him, is meaningless and nonsensical.

1. The submissions on behalf of the Independent Children’s Lawyer were as follows:

   (a)she adopted the submissions of Counsel for the father;

   (b)granting a stay is not as of right, and an appropriate ground must be established;

   (c)merely filing a Notice of Appeal is not sufficient grounds;

   (d)a person who has obtained a judgement is entitled to the benefit of that judgement, and in this case, the orders providing for Z’s time with his father are long-standing and it is in the child’s best interests for those orders to continue;

   (e)the bona fides of the mother warrant serious questioning because of the following:

   (i)the Orders of the 4 January 2021 were made by consent;

   (ii)she has had multiple attempts to reduce the father’s time to daytime only during the running of the trial, the last of which was made this year, and all applications have not been successful;

   (iii)on 4 January 2021, the mother gave an undertaking to the Court that she would comply with orders for Z’s time with his father;

   (iv)notation B to the Orders of 4 January 2021 reflect the ongoing nature of the long-standing orders for overnight time;

   (v)the mother’s using the Magistrates’ Court as a “backdoor method” to achieve her long desired outcome;

   (vi)the fact that the mother has not attempted to suspend the orders but rather to reduce the father’s time to daytime only, is another attempt by her to achieve what she ultimately seeks;

   (f)the stay application is ill-conceived, because she is actually asking for new orders to be made by the court in the context of a stay application;

   (g)her submissions to the court in support of the stay application are merely a replication of her previous submissions to the court during attempts to vary overnight time;

   (h)the issues raised by her have been raised before the court on many occasions and notwithstanding those previous submissions during the trial orders for overnight time have been made;

   (i)although a refusal to grant a stay may render the appeal nugatory, it is but one of many considerations;

   (j)it is in Z’s best interests for the existing long-standing orders to continue to provide him with continuity and stability;

   (k)it is also in Z’s best interest to finalise the substantive proceedings as soon as possible;

   (l)the strength of the mother’s appeal is questionable;

   (m)the affidavit in support of the stay application refers to procedural fairness when in fact that issue was agitated before the Court and on that day her Counsel provided comprehensive and lengthy written submissions;

   (n)it is inappropriate for the mother to raise the issue of procedural fairness when the hearing on 26 of March 2021 was brought about by her failing to disclose to the father the proceedings in the Magistrates’ Court;

   (o)the orders should remain so as to limit the change of arrangements for the child to ensure stability and consistency.

   Discussion

2. I will address the submissions of both parties in the context of the relevant principles, as referred to in Aldridge & Keaton.

3. Firstly, the father is entitled to the benefit of the judgment and to presume the judgment is correct. That is particularly so in the context of the history of the proceeding where, on 1 September 2020 the Court upheld the orders of the Senior Registrar which were made in April 2020 and that Z has been spending time with his father pursuant to those orders, since at least September 2020.

4. Secondly, subsequent to filing a Notice of Appeal, the mother promptly filed a stay application and supporting affidavit. However, there was a delay of over three weeks between the date of the orders, 26 March 2021 and the mother filing her Notice of Appeal on 20 April 2021.

5. Thirdly, the bona fides of the mother. I agree with and adopt the submissions of Counsel for the Independent Children’s Lawyer as to the lack of bona fides of the mother. Since April 2020, the mother has expressed her continuing dissatisfaction with the Orders made by the Senior Registrar and she is no doubt aggrieved by the repeated failure of her applications to the court to review and or vary the orders which have been in place since that date, providing for Z to spend overnight time with his father.

6. Despite the Orders of 4 January 2021 being by consent, she has in these proceedings alleged that she was effectively coerced and forced into both agreeing to the orders and providing an undertaking to the Court. I do not accept that submission by her as she was represented by highly experienced and respected Counsel and solicitors. Her complaint is that she does not like Z spending overnight time with his father and the will go to any lengths to achieve that outcome, the latest of which was an ex parte application to the Magistrates’ Court during the middle of a protracted trial.

7. The mother’s assertions that she should have been afforded procedural fairness and a capacity to reply to the father’s affidavit of 24 March 2021 are disingenuous in the extreme. The father’s affidavit of 24 March 2021 refers to the circumstances in which the mother obtained an ex parte intervention order and how he attended a police station on 23 March 2021 to accept service of the interim intervention order dated 18 March 2021. The mother’s outline of submissions prepared by her Counsel for the hearing on 26 March 2021 refer to the circumstances in which the mother alleges that the father was aware of the hearing on 18 March 2021. Paragraphs 14 to 23 of that submission contain a detailed account of the mother’s version of events around obtaining the variation to the intervention order.

8. As the Court remarked during the hearing on 26 March 2021, the mother responded to the father’s affidavit in the lengthy submissions and had she wanted to have filed an affidavit instead of submissions, she had two days to do so, particularly in circumstances where the father’s affidavit of 24 March 2021 consists of one and a half pages.

9. Fourthly, the granting of a stay on terms that are fair to all parties. If a stay of the orders made 26 March 2021 were granted, then there would be no orders in place for Z to spend time with his father. The mother seems to be under the impression that the magistrate made orders prescribing Z’s time with his father, however an examination of the orders actually made by the magistrate on 18 March 2021, does not support this proposition. I refer to that later in these reasons. What is of paramount importance is the best interests of Z which would not be served if the orders were stayed and there were no orders regulating his time with his father.

10. Fifthly, whether the appeal will be rendered nugatory if the stay is not granted. In this case, if there is no stay of the orders of 26 March 2021, there is a risk that the appeal will be rendered nugatory. However, that risk must be seen in the context of the preliminary assessment of the strength of the proposed appeal, and in the context of the child’s best interests, given that the appeal has been filed in relation to interim orders, during an adjourned period of a protracted trial.

11. Sixthly, a preliminary assessment of the strength of the proposed appeal. The Notice of Appeal sets out to grounds as follows:

    1.The Trial Judge erred by failing to consider the provisions of section 68R of the Family Law Act and its intersection with the family violence legislation;

    2.In the alternative, the Trial Judge placed no weight on the power of the learned Magistrate to consider the family violence implications that were before him.

12. The first ground of appeal seems to assert that during the hearing on 26 March 2021 there was insufficient consideration of family violence in reaching the orders made. The transcript of the proceedings on that date reveals that there was extensive consideration of the issue of family violence and discussion between the Court and Counsel for the mother including reference to the twin pillars of section 60CC(2) of the Act, the need to attribute greater weight to the consideration to protect a child from harm or family violence, and the provisions of section 68R and section 68S of the Act.

13. The second ground of appeal is difficult to understand what is actually asserted. However, doing my best, there was extensive discussion between the Court and Counsel for the mother about the information which was before the magistrate and the length of hearing time on numerous occasions that he had to consider the issue of family violence as alleged by the mother. What can be concluded from those discussions is that the magistrate had very limited time, which would have been no more than an hour collectively over numerous applications to the Magistrates’ Court, and he did not have the benefit of having heard from the various witnesses during the trial as to the mother’s repeated allegations against the father.

14. I am of the view that there is little prospect of success with the appeal.

15. Seventhly, the desirability of limiting the frequency of any change in a child’s living arrangements. The orders which the mother seeks to appeal against have effectively been in place since April 2020. The mother did not substantially comply with the orders between April 2020 and September 2020, and thereafter there have been numerous complaints by the father about the mother’s lack of compliance with interim orders pertaining to his time with Z.

16. The arrangements for the child should continue in accordance with those orders as it will provide for stability and continuity of his time with the father, which has taken place since the end of last year. That will ensure that the child’s living arrangements will not be disrupted during a part heard trial and will continue in accordance with arrangements which have been in place for many months.

17. In relation to the timeframe for the hearing of the appeal, my associate has made enquiries with the relevant Appeals Registrar and it is likely that the appeal will be listed in the week commencing 9 August 2021, is a significant delay.

18. Finally, the best interests of the child are served by him continuing to spend time with his father in accordance with the orders of 26 March 2021. The evidence of Ms H, the child’s treating psychologist, was fervently in favour of Z spending overnight time with his father and that the time should not be reduced to daytime only, as sought by the mother.

19. Upon balancing the relevant considerations, I am of the view that a stay of the orders of 26 March 2021 should not be granted.

20. Secondly, I will address Order two, as sought in the mother’s Application in a Case, that [t]he Orders made by the learned Magistrate on 18 March 2021 be given full force and effect.

21. That Application does not reflect the reality of the orders actually made by the Magistrate on 18 March 2021. A copy of the interim intervention order made on 18 March 2021, which varied the Order made by the court on 11 February 2020 is annexure K-4 to the mother’s affidavit filed 22 April 2021.

22. Paragraph 10 of the intervention order states as follows:

    10.At the time of making this interim intervention order, the Court has also made an order under section 68R of the Family Law Act 1975. The court has ordered that the parenting order made on 23/04/20 is:

    VARIED NOT TO ALLOW Z TO SPEND OVERNIGHT TIME WITH HIS FATHER.

23. The Order does not purport to specify what time Z should actually spend with his father.

24. The Order made by the Magistrate is nonsensical and is incapable of enforcement. Even if the order specified the time Z was to spend with his father, I would not vary the orders, in the circumstances sought by the mother.

25. As previously referred to in these reasons, this is yet another attempt by the mother to obtain her ultimate goal, pending a final determination of the proceedings, which is to stop Z spending any overnight time with his father and has been the subject of numerous applications in the family court proceedings.

26. I do not accept that a Magistrate who listed a variation of an intervention order for 5 to 10 minutes hearing time, on an ex parte basis, would be appraised of the many and varied issues pertaining to Z’s time with both parents. That is particularly so in circumstances where the court has been occupied with approximately 9 hearing days of the trial, which is yet to be concluded, and has heard evidence from Z’s treating psychologist, Ms H to the effect that Z most definitely should spend overnight time with his father, and that the matters raised by the mother in her affidavit of 22 April 2021 in relation to her allegations about the father’s care of Z are almost in identical terms to the matters which she has repeatedly raised with the court in the variation applications, all of which have been dismissed.

27. I do not intend to make any interim variation at all to the interim orders of 26 March 2021 which are consistent with orders which have been in place since April 2020.

28. Thirdly, I will address the mother’s Application to adjourn the trial pending the outcome of the appeal against the interim orders.

29. What is evident from so many days of hearing is that Z requires an end to the litigation and conflict between his parents to enable him to enjoy a proper relationship with both parents.

30. The only way to achieve that outcome is to complete the trial in as expeditious manner as possible. Each time the trial is adjourned, the mother makes further allegations against the father, which reflect the earlier allegations and I have no reason to believe that that conduct will change between now and the conclusion of the trial. The submissions of Counsel for the father and the Independent Children’s Lawyer were in accordance with the sentiments expressed in this paragraph.

31. The evidence of Ms H, Z’s treating psychologist is compelling and I have ordered a transcript of that evidence to be available to all parties. She also shares my view that the proceedings require finalisation. Her evidence is that Z should be accorded emotional permission to spend time with his father and not be caught in the parental conflict.

32. I have also considered the prospect of success of the appeal, which I consider to be limited, particularly given the mother’s lack of bona fides and also the length of time it will take to dispose of the appeal. A delay of the substantive proceedings until after the second half of this year would be clearly contrary to Z’s best interests.

33. As referred to earlier in these reasons, both Counsel for the mother and the mother’s solicitor sought leave to withdraw from the proceedings, primarily because of funding issues. I have made an order pursuant to section 102NA of the Act to enable the mother to obtain alternative legal representation.

34. The Court has forwarded a copy of that order to Victoria Legal Aid, as required, and the mother was advised in open court that she needs to act as quickly as possible to contact Victoria Legal Aid to secure alternate representation in time for the trial on 24 May 2021.

35. In the absence of any application by new lawyers who may be appointed on her behalf, I intend to proceed with the trial on 24 May 2021.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.

Associate:

Dated:       13 May 2021