BERRINGTON & FARNDALE

[2014] FamCA 545

FAMILY COURT OF AUSTRALIA

BERRINGTON & FARNDALE [2014] FamCA 545

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – proceedings in relation to the parenting arrangements of a young child – where mother sought a stay of proceedings on the first day of trial – mother filed Notice of Appeal immediately before the trial – father opposed mother’s application for a stay – concerns as to mother’s capacity to conduct proceedings as an unrepresented litigant – merits of the appeal – best interests of the child – mother’s application for a stay dismissed – orders made for the mother to produce a report from a qualified medical practitioner in relation to her mental health.

Family Law Act 1975 (Cth)

APPLICANT: Ms Farndale

RESPONDENT: Mr Berrington

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: SYC 7554 of 2008

DATE DELIVERED: 21 July 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Cocks

SOLICITOR FOR THE RESPONDENT:	White Berman
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mrs Read

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

BY CONSENT IT IS ORDERED THAT

1. The child B born on … 2007 spend time with the father from conclusion of school today until the conclusion of school on Friday 25 Jul 2014.

IT IS FURTHER ORDERED THAT

1. The mother is restrained and an injunction is granted restraining the mother from attending at or in the vicinity of the child’s school S School at Suburb N during this week.

1. The mother is required to obtain a full medical report in writing from Dr A setting out the particulars of her health, physical, psychological and mental condition and how that condition impacts upon her ability to participate in the trial in these proceedings this week.

1. The Independent Children’s Lawyer is authorised to immediately confer with the medical practitioner concerning the preparation of and costs of a full medical report on the mother’s incapacity to participate in the trial UPON NOTING the mother agrees to the Independent Children’s Lawyer being authorised to speak to the medical practitioner in those terms.

1. The matter is further adjourned to Tuesday 22 July 2014 at 11.00 am before the Honourable Justice Dawe for consideration of any further evidence available concerning the mother’s alleged inability to participate in the trial.

1. The mother is to attend in person or by telephone for submissions as to why the Court should not proceed on the trial without her participation either on an undefended basis for the reasons which the counsel for the father are alleging or because the mother is not participating in the trial notwithstanding the opportunities she has been given to participate in the trial up until today.

1. If the mother is not in attendance by 11.05 am on Tuesday 22 July 2014 the mother will have leave to attend by telephone link.

1. The Application in a Case filed by the mother on 18 July 2014 is dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SYC 7554 of 2008

Ms Farndale

Applicant

And

Mr Berrington

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the Application in a Case which was filed by the mother on 18 July 2014 in which she seeks certain orders.  The mother is unrepresented and therefore it is not appropriate for me to do other than quote what she has put in this Application in a Case. 

2. When the matter was listed before me for the trial this morning at 10 o’clock I stood the matter down so that the Independent Children’s Lawyer and the father and their legal representatives could view the Application in a Case and the supporting affidavit material.  I made arrangements for the mother to attend by telephone link because there was no appearance by the mother at the commencement of the trial nor any explanation from anyone on her behalf as to her failure to attend.  Having stood the matter down, I have now heard submissions in relation to the Application in a Case.

3. There is the difficulty that the mother says she has e-filed the Notice of Application for Leave to Appeal and the Appeal in the Melbourne Registry.  I am informed that the mother’s Notice of Appeal has been received by the Southern Registry in Melbourne, by facsimile, not by e-filing.  Neither the Notice of Appeal nor the application for leave to appeal has been received by this Registry nor has it come to the attention of, or been served upon the other parties. 

4. I understand that the time difficulties involved in the filing the Notice of Appeal and the Application for Leave to Appeal would indicate that I should not consider the mother’s case fails because of the failure to provide us with copies.  Although in normal circumstances, of course, if she were represented, the draft Notice of Appeal would be provided.

5. I asked the mother to give the Court some indication as to the grounds upon which she is relying in the Application for Leave to appeal and the Appeal from my orders of 14 July 2014.  All the mother has been able to tell me is that the Court “misdirected itself”.  The affidavit which the mother has filed together with the Application in a Case, refers to certain matters.  In the affidavit, she states in paragraphs 6, 7 and 8:

   6.I have also filed an Application for Leave to Appeal the decisions made by the Court on Monday 14^th July 2014 and seek an Order by this Court to STAY all and any orders affecting the impending Trial, until my Application for Leave to Appeal and the APPEAL has been determined by the FULL COURT.

   7.I say that I am NOT canvassing the merits of the Appeal herein, however the issues before the Court for Trial are very similar to the currently working and functioning contact arrangements in place and no injustice would be brought to the child.

   8.I say, that in the circumstances that the Court ought to grant a STAY, in the light of the impending Appeal, as no justice and faairness (sic) would be served where the matter proceeded to any immediate trial.

6. The Application in a Case for a stay and to vacate the trial date needs to be seen in the overall context of these proceedings concerning the child.  The matter originally was in the Federal Magistrate Court (as it then was) and certain orders were made.  The final orders were made in June 2010.  There have subsequently been contravention proceedings. 

7. In July 2011 the father filed an Initiating Application in which final orders were sought and interim orders were sought.  There have subsequently been further Amended Initiating Applications filed by the father. 

8. The mother has been participating in these proceedings over a considerable period of time since the fresh Initiating Application was filed in July 2011. 

9. The matters need to be considered in the context of the directions which have been made to prepare the matter for trial, on occasions when the mother was present, either by telephone link or in person and orders have been made.  In particular, there are orders made in directions by the Registrar, for the preparation of the matter for trial and further orders made following upon those orders.  In particular on the First Day of Hearing before me on 12 May 2014, when the mother was in person by telephone link, and significant orders were made to prepare the matter for trial.  It was clearly indicated that the trial would be listed for a compliance check on 14 July 2014 and the matter listed for final hearing before me commencing today.  The mother has therefore been well aware of the history of the proceedings, has participated in the proceedings and the directions made and well aware, over a considerable period of time, that the directions were clearly being made to prepare the matter for trial.

10. The grounds of appeal which the mother refers to, make some reference to the Court “misdirecting itself”.  I assume that is some reference to the matters which were raised before me when I dismissed the mother’s application in July 2014.  The orders which I made on 14 July 2014 provided that the Applications in a Case, filed by the mother on 10 June, 13 June, 1 July and 9 July 2014, be dismissed.  I granted leave to the mother to file further evidence and made other directions clearly indicating that the matter remained listed for final hearing before me for the five days commencing this morning.

11. The mother seeks to appeal that order.  I understand it is on the basis that she claims that the Court did not have jurisdiction or that there was some error in the way that the matter was listed. 

12. When considering the application of the rules, the Court, of course, has the power to vary the rules to ensure that justice is done and the matters are heard in an appropriate way.  One of the significant issues in this matter which the Court has to consider, is what is in the best interests of the child B, (“the child”), even if it is considering procedural matters.

13. One of the factors which needs to be taken into account is the ongoing litigation and the effect that is having on the family and therefore if not directly, certainly indirectly, upon the welfare of the child. 

14. When I consider applications in relation to a stay of the proceedings or a stay of orders pending the hearing of appeal, I have to take into account various matters.  One, of course, is whether the appeal would be rendered nugatory if I did not grant the stay.  In this case, if the mother’s appeal is from the orders which directed the matter proceed before me today and for the rest of this week, then it would be rendered nugatory if I did not grant her the stay.

15. That is, however, only one of the factors which I have to take into account.  One of the other factors is that the person who has obtained the decision is entitled to the benefit of that judgment.  In this case that certainly is a factor which is to be taken into account, because the father has instituted proceedings concerning the welfare of his daughter some years ago and seeks to have the matter listed and properly determined before the Court.  It is also significant to take into account that the principles clearly indicate that the mere filing of an appeal is insufficient to grant a stay.

16. I have to consider the bona fides of the appellant and make some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case.  Those factors, in particular, whether the appellant has an arguable case, are in this case quite significant.  The interests of the child are also a significant consideration, bearing in mind the matters which both parties raise concerning the future arrangements for the child.  The mother is maintaining that the existing orders which provide for the child to live with her and spend time with the father should be continued.

17. The father is seeking orders which provide for the child to live with him.  There are therefore significant issues that need to be determined. 

18. However, the most significant factor is the fact that the mother has not established that there is even an arguable case in the appeal.  Therefore I am satisfied that the application for stay should be dismissed and that the matter should proceed to trial. 

19. The other issue which the mother has raised in the affidavit, but not in the application itself, is whether the mother is physically, mentally and psychologically capable of conducting these proceedings.

20. She has appeared by telephone link this morning and has informed the Court that she is at a shopping centre this morning, waiting for an appointment which has now been confirmed to be at 4.00 pm this afternoon at her doctors.  If the mother is not capable of conducting these proceedings and appearing in Court for the rest of this week, being Tuesday, Wednesday, Thursday and Friday, then the Court will have to consider an application to adjourn the trial to allow the mother to recover from whatever particular condition she is suffering from, and for the Court to give consideration as to whether the physical and mental health of the mother means that she is also incapable of caring for the child.

21. Separate orders may need to be made to ensure that the best interests of the child are protected.  The Court therefore considers that subject to any comments I hear from counsel, that the mother have an opportunity to produce a full and detailed medical report from a qualified medical practitioner, whom we understand is the General Practitioner the mother is going to see (Dr A) if he considers himself or herself capable of giving us expert evidence as to her psychological and mental health, being a full and detailed report from him or her as to the actual condition the mother is suffering from, which prevents her from attending to participate in the final hearing of the trial concerning the best interests of the child. 

22. If that material is not available and forthcoming tomorrow, then the Court will have no reliable evidence upon which to draw any conclusion that the mother is unfit to conduct the proceedings.  There will therefore be clearly an implication that the mother is deliberately attempting to delay, for her own benefit, the proceedings before this Court, notwithstanding the Court’s opinion that ongoing proceedings in this Court are not likely to be in the best interests of the child. 

23. I will hear therefore from counsel and the mother as to the steps that should be taken for the matter to be resumed before me at 11 o’clock tomorrow morning, on the basis that I will then give further consideration to the mother’s mental and physical capacity to continue with this trial.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 July 2014.

Associate: 

Date:  23 July 2014