Benworth and Benworth (No 2)

[2011] FamCA 870

FAMILY COURT OF AUSTRALIA

BENWORTH & BENWORTH (NO 2) [2011] FamCA 870

FAMILY LAW – STAY – Application for stay of parenting orders

Trahn & Long (2) (2008) FAMCAFC 194
Sheldon & Weir (stay application) (2011) FAMCAFC 5

Family Law Act 1975 (Cth)

APPLICANT: Ms Benworth

RESPONDENT: Mr Benworth

FILE NUMBER: SYC 8541 of 2007

DATE DELIVERED: 16 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 14 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

COUNSEL FOR THE RESPONDENT: Ms Judge

Orders

1. Pending the determination of the mother’s appeal against orders of the Court made on 13 May 2011, order 6(c) is stayed and so far as the September/October school holidays are concerned the father is to spend time with the child M born … 2004 from 9.00am on Monday 26 September 2011 to 5.00pm on Friday 30 September 2011 and from 5.00pm on Friday 7 October 2011 to 9.00am on Monday 10 October 2011

2. Should the Full Court of the Family Court of Australia not have delivered judgment in the mother’s appeal prior to the commencement of the end of year school holiday for the child then the parties are to negotiate times for the child to spend with the father during those holidays. This process is to commence with the father sending to the mother his request for time no later than 6 weeks before the commencement of the holiday period.

3. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Benworth & Benworth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8541  of 2007

Ms Benworth

Applicant

And

Mr Benworth

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the mother filed 11 August 2011. That application seeks a stay of order 6(c) of the orders made by His Honour Justice Rose on 13 May 2011.  The stay is sought in relation to an appeal filed by the mother against the parenting orders made by his Honour on 13 May 2011.  The full extent of the orders appealed against was not relevant to this application.  The application is met by a response filed by the father on 11 September 2011.  That response opposes the stay order.

2. If the stay is granted then the father seeks specific times during the September 2011 school holidays for the child to be in his care.  He seeks one block of five nights and one block of four nights. 

3. If the stay is granted the mother seeks two blocks of four nights for the child with his father during the holiday period, plus one extra night to make an equal division of the school holidays, perhaps so as to be consistent with order 6(c) of the orders made by the Court on 13 May 2011.  The appeal is listed for hearing on 20 September 2011.

Circumstances in Which the Court Should Grant a Stay of Parenting Orders Pending the Determination of an Appeal

1. In Trahn & Long (2) (2008) FamCAFC 194 at paragraph 38, the Full Court of the Family Court set out the applicable principles to be applied to consideration of a stay application of parenting orders pending the hearing of an appeal:

   These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and 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 included 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 “special” or “exceptional” circumstances;

   ·a  person who has obtained a judgment is entitled to the benefit of that judgment;

   ·the person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to ground 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 the 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 a stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings. 

2. Those principles have been affirmed by a more recent Full Court decision in Sheldon & Weir (stay application) (2011) FamCAFC 5.

Proper Basis for a Stay

1. The mother has filed an appeal against the orders of His Honour Justice Rose made 13 May 2011.  The notice of appeal was filed on 10 June 2011.  The first ground of the appeal attacks His Honour’s order 6(c), which provides for the holiday time the parties’ child, M, born in 2004 (aged 7), should spend with his father.  It is asserted that the order was made against the weight of the evidence.  In submissions it was further argued before me that the order is inconsistent with the findings of His Honour in his judgment (as set out in paragraph 188) where his Honour said:

   I have concluded that the child’s best interests are served by maintaining the status quo.

2. It is argued that part of the status quo at the time of the hearing was for the child to only spend four night blocks in his father’s care during school holidays.  It is further argued on behalf of the mother that particular arrangements for four day blocks arose out of a judicial determination made by his Honour on 15 December 2010.  Further, there had been an earlier determination in mid-2010, again providing for the child to spend no more than four night blocks during school holiday periods with his father.  Perhaps inconsistently there is an earlier consent order made on 9 February 2010 which provides for the father to spend school holiday time with the child:

   One half of each school holiday period as agreed between the parties.

3. There was an order made on 30 June 2010 by His Honour Justice Loughnan which provided that the time the child was to spend with his father during the school holiday period was to be in four day blocks during the July 2010 school holidays.  The fact of these two differing orders gives rise to confusion, it is submitted by the mother, when one considers paragraph 193 of the judgment where his Honour said:

   With regard to periods of time that the child should spend in the care of the father, the current pattern of time spent has been working satisfactorily, including the collection and return of the child by the father and/or [Ms A Benworth].  I have concluded that it is in the child’s best interests to continue those arrangements so that he will have the stability and routine with which he has become accustomed, which has obviously been of benefit to him so far as his meaningful relationship with each of the parties is concerned.

4. The mother argues, however, that the clear status quo from mid-2010 in relation to school holidays had been that the child spent a maximum of four nights in any single block in the father’s care.  It is conceded by the father that at trial there was a clear issue between the parties as to how the child’s school holiday time should be divided between them. 

5. The mother is seeking orders identical to those set out in her notice of grounds of appeal as the orders she would seek if the appeal is successful.  Although being invited to do so the father’s counsel was unable to point to any part of his Honour’s judgment where he set out why he was rejecting the orders sought by each party and preferring the order which he made in order 6(c).

6. I note the argument of the father that it was unnecessary for the trial judge to provide any such specific reason.  I also note the father’s submission that it is not conceded that the clear evidence of the experts was that the child should not spend more than four nights in any one block with the father.  It is the mother’s argument, to be promoted in relation to the appeal, that was the conclusion and the only available conclusion his Honour could have drawn from the expert evidence. 

7. I am satisfied that in relation to ground 1 of the appeal it is not a ground that has no merit.  Having considered the material filed I am satisfied that the mother is bona fide in pursuing her appeal and making her application.  The order made by his Honour as order 6(c) is in the following terms:

   Half of each end of term school holiday period as agreed between the parties, or failing agreement upon the father giving the mother six weeks written notice.

8. The order itself, with respect to his Honour, is imprecise and capable of a number of different interpretations.  It assumes on one reading that the father’s notice will set out the days he seeks and that the mother will then have to comply with that notice.  The evidence discloses that the father gave two notices pursuant to that order.  The first notice was given on 16 May 2011.  In that notice, said to be written pursuant to Order 6(c) of the orders made 13 May 2011, the father sought the following times during the upcoming September/October school holidays. I note the first block is for four nights, the second block is for three nights:

   From 9.00 am Monday, 26 September 2011 to 5.00 pm Friday, 30 September 2011, and from 5.00 pm, 7 October 2011 to 9.00 am, 10 October 2011.

9. The second notice, given on 25 July 2011, is also said to be written pursuant to Order 6(c) of the orders of 13 May 2011.  No reference is made to the father withdrawing the earlier notice, nor is there any indication as to what action the mother was to take in relation to the earlier notice.  The 25 July 2011 notice sought times with the child in the same September/October school holidays as was covered in the earlier notice. This notice provided for five nights in the first block and four nights in the second block to be spent with the father:

   From conclusion of school, Friday, 23 September 2011 to 5.00 pm on Wednesday, 28 September 2011 and (2), from 5.00 pm, Friday, 7 October 2011 to commencement of school on Tuesday, 11 October 2011.

10. It is this second notice which the father seeks should be implemented if the stay is granted (see paragraph 2(a) of the father’s response filed 13 September 2011).  In my view, in the absence of consent from the mother, the order of his Honour made as 6(c) was immovably set as to times by the notice given by the father on 16 May 2011.  The order does not allow for multiple and varying notices to be given by the father.

11. The mother argues that her appeal on this point may be rendered nugatory if the stay is not granted.  It is further implicit in her argument that damage may be perpetrated upon the child if he is required to spend greater than four nights in one block with the father.  In this respect the mother relies on the evidence of experts given in the trial to which I was not specifically taken.  I note that the longest period of time the father seeks in his last notice to the mother is five nights.  I also note the submission by the father that the child did spend a seven-day block with the father in July school holidays this year.

12. In support of this argument the mother says clear evidence was given by the experts, who gave evidence in the case, that the child should not at that time be spending more than four nights away from the mother.  In paragraph 61 of the judgment his Honour referred to the evidence of the family consultant who said the child:

    Seems quite anxious about the issues between his parents.

13. His Honour noted the child’s anxiety appeared to be ameliorating since he saw Dr C and her report was made, that being at an earlier time than report of the family consultant.  At paragraphs 131, 132, 133 and 136 of the judgment His Honour referred to Dr C’s report dated 10 June 2010.  He refers to the evidence of anxiety the child experiences and that anxiety may be reducing.  Paragraph 188 of his Honour’s judgment includes the following:

    I have made previous findings in relation to the child’s progress and the lessening impact of anxiety which he had displayed in various ways.

14. The father, in his submissions, points to evidence which supports a conclusion that the child’s anxiety, if it still be a matter for concern, is not adversely affected by spending more than four nights in a block with the father.  He says the child spent a week with him in the recent July school holidays and there is no evidence by the mother of any adverse impact upon the child from that event.  It is not clear to me how the child’s state of anxiety may be adversely affected by spending more than four nights with his father, however, it is not my role to determine the appeal.

15. I do see that there may be the possibility of adverse impact upon the child of greater than four nights in one block with the father, and that it may be the mother can establish that on the evidence which was before the trial judge.  I therefore conclude the mother, on balance, should be seen to have made her case that her appeal might become nugatory if the stay is not granted.  As I said earlier, the appeal is listed for hearing on 20 September 2011.  That is a matter of days away.

16. If the stay is granted the status quo would continue for the child pending the hearing of the appeal.  Should it be necessary, I conclude that the stay sought by the mother should be granted on the terms which she seeks subject to the matters that hereafter follow.  Prior to the delivery of the judgment I caused the following email to be sent to the parties’ lawyers inviting further submissions prior to the delivery of judgment.

The order under scrutiny is order 6(c) made 13 May 2011.  It provides as follows:

Half of each end of term school holiday period as agreed between the parties, or failing agreement upon the father giving the mother six weeks written notice.

The father gave the mother notice relevant to the upcoming September/October school holidays by letter dated 16 May 2011.  He later purported to give a second notice on 25 July 2011.  The order does not on its face allow for multiple conflicting notices.  Why should the father not be restricted to the period of time with the child during the upcoming school holidays as stated in his original notice dated 16 May 2011.

If the father is restricted to spending time with the child as set out in his original notice, what requirement is there for a stay of order 6(c) as above referred to?

1. Each of the parties has provided me with further written submissions for which I am grateful.  The mother submitted that order 6(c) of the orders does not permit multiple notices.  Further, the mother took on 16 May 2011 (or thereabouts) and takes now no issue with the times nominated in the original notice dated 16 May 2011.  The mother submits the father should be restricted to his first notice.  The father submitted the second notice was required because the mother changed the child’s school without his consent or knowledge.  He submits there are differing school holiday dates.  Nonetheless, the time the father sought in the first notice is constrained within the dates covered by the second notice.

2. The submissions, although not intended, suggest the second notice issued on 25 July 2011 was in retribution for the mother changing the child’s school without first obtaining the consent of the father.  The father suggests the first notice should be treated as an invitation to bargain about the dates the child will spend with the father during the school holidays.  Nothing in the notice would suggest that is what was intended.

Conclusion

1. In my view the notice of the father given on 16 May 2011 was made pursuant to order 6(c).  It was not inviting response or negotiation.  It was written in a formal manner.  Having given that notice the father cannot in my view seek to vary the times of the notice without the consent of the mother.  Although the wording of order 6(c) appears on its face to invite negotiation, in my view the wording of the notice dated 16 May 2011 indicated clearly that the father was not inviting negotiation.

2. In my view the father should spend time with the child as set out in his notice of 16 May 2011, at least as far as the September/October school holidays are concerned.  I will so order.  Now that the mother has been put on notice that the father has sought to invite negotiation about dates specified in his letter of 16 May 2011, she will no doubt apply her mind to the end of year school holidays arrangements with the child.  If I be correct in my interpretation of order 6(c) of the Court orders, then in my view no stay is required. 

3. Should I be in error in that interpretation then I state I am satisfied the mother has made out a case for a stay of order 6(c) and so orders consistent with the status quo prior to the orders of 13 May 2011 should be made.  The mother has said in her recent submission the times set out in the father’s notice given 16 May 2011 are acceptable to her. I propose to order those dates be the times the child spend with the father.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 16 September 2011.

Associate:

Date:  21 September 2011