Berryman & Berryman (No 2)

[2021] FCCA 1608

FEDERAL CIRCUIT COURT OF AUSTRALIA

Berryman & Berryman (No 2) [2021] FCCA 1608

File number(s):

NCC 2685 of 2018

Judgment of:

JUDGE BETTS

Date of judgment:

13 July 2021

Catchwords:

FAMILY LAW – parenting – recent final hearing resulted in orders whereby childrens’ primary care of children was changed from Mother in South Australia to Father in New South Wales – Mother does not send children to Father as required by the orders and instead files urgent application to stay the final parenting orders despite not yet filing a Notice of Appeal – Mother’s stay application requires leave – consideration of jurisdictional issues – Father concedes jurisdiction but opposes stay – Father separately brings recovery application – mother opposes – Mother’s application dismissed – recovery order made

Legislation:

Family Law Act 1975 (Cth), Part VII

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106

Friscioni & Friscioni [2009] FamCAFC 43

Gronow& Gronow (1979) 144 CLR 513

House v the King  (1936) 55 CLR 499

JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

K & B [2006] FLC 93-288

Sheldon & Weir (No 4) [2010] FamCA 1214

Number of paragraphs:

91

Date of last submission/s:

12 July 2021

Date of hearing:

12 July 2021

Place:

Newcastle

ORDERS

NCC 2685 of 2018

BETWEEN:

MR BERRYMAN

Applicant

AND:

MS BERRYMAN

Respondent

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	13 JULY 2021

THE COURT ORDERS THAT:

1.The Mother’s Application in a Case filed 1 July 2021 be dismissed.

2.Pursuant to section 67Q of the Family Law Act 1975 a Recovery Order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the children X born in 2009 and Y born in 2013 and to deliver the said children to the Applicant Father, MR BERRYMAN, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

3.The Recovery Order is to lie on the file to be uplifted upon the written request of the Father’s solicitor to the chambers of His Honour Judge Betts.

4.All extant costs applications are adjourned to 2 September 2021 at 9.30am for hearing (30 minutes allocated).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Berryman & Berryman (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BETTS

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript in order to make them easier to read.

   BACKGROUND

2. On 23 June 2021, following a three (3) day hearing in this court, I handed down reasons and orders in this matter.  The reasons that I deliver today should be read in conjunction with those reasons. 

3. Effectively what I did was to order that the two (2) children of the parties, X born in 2009 and Y born in 2013, move out of their mother’s primary care and into their father’s primary care.  My reasons for judgment were lengthy.  They were delivered extemporaneously.  They were subsequently settled by me on 2 July 2021, and made available to the parties. 

4. On 1 July 2021, shortly prior to the written publication of my settled reasons for judgment, the mother filed an Application in a Case.  Her Application sought that, pursuant to rule 22.11 of the Family Law Rules, the relevant substantive orders providing for the change of primary care be stayed pending the hearing and determination of her proposed appeal again those orders.  Her Notice of Appeal had not been filed at that time, and as I understand it remains to be filed.

5. Because her Notice of Appeal had not been filed, the mother quite properly sought leave to bring her Application prior to filing her appeal.  By her application she is effectively seeking that the orders that I made on a final basis be stayed and that the previous interim orders be effectively “revived” in the interim.

6. The previous interim orders I made followed the mother in August 2018 unilaterally relocating with the children from the Region C area in New South Wales to Adelaide.  The interim orders had provided for her to have primary care of the children, and that they spend time with their father on school holiday periods and potentially during school terms. 

7. The mother had been successful at the interim hearing before me in terms of remaining with the children in Adelaide, but unsuccessful at the final hearing on 23 June 2021. 

8. The father opposes any grant of leave to bring the stay application, as well as opposing the stay of the orders.  By Application in a Case filed on 5 July 2021, he seeks a recovery order.  This arises because, having travelled to Melbourne airport to collect the children on 5 July 2021 pursuant to my final orders, the children did not in fact arrive.  Indeed, they did not spend the (end of Term 2) holiday time with the father that they would have spent under my interim orders either.  Effectively, the father has not been able to see the children since the orders were made. 

9. In a somewhat ironic way, the father has seen less of his children than he would have if I had not made any final orders at all. 

10. The mother’s Response filed on 9 July 2021 simply seeks that the father’s application be dismissed. 

    THE HEARING & MATERIAL RELIED UPON

11. The matter came before me for argument yesterday. 

12. Mr Tregilgas of counsel appeared on behalf of the mother, having recently been instructed to appear on her behalf.  (The mother had represented herself at the trial before me in June 2021). 

13. Mr Mooney of counsel appeared on behalf of the father.  He had represented the father throughout the original trial. 

14. The parties relied upon their respective applications and responses, together with affidavit material each of them had filed. 

15. In the mother’s case, she relied upon an affidavit of 1 July 2021 supporting her application for a stay (and leave) and an affidavit of 9 July 2021 in support of her response to the father’s application for a recovery order. 

16. The father relied upon an affidavit of 5 July 2021, an affidavit of his brother Mr D of 5 July 2021; and an affidavit of his solicitor, Lee-Ann McAllister filed 5 July 2021. 

17. I have had regard to all of that material, together with my reasons for judgment of 23 June 2021, which I have re-read overnight.  I have also had regard to a report prepared by Ms E, a Child and Family Consultant/Therapist, of 7 July 2021, which has been tendered as exhibit 1 in these proceedings.

    THE STAY APPLICATION

18. Logically, the court should consider the stay application first. 

19. Pursuant to rule 22.11 of the Family Law Rules, which are the applicable rules for the purposes of today’s hearing, a party who has started an appeal or applied for leave to appeal may apply for a stay before the primary judge who determined the proceedings. 

20. It is an interesting provision.  It has no counterpart in the Federal Circuit Court Rules because the Federal Circuit Court does not hear appeals from single judges of this court.  Hence, the jurisdictional basis for this court making a stay order is to be found in the Family Law Rules relating to appeals to the Full Court. 

21. Rule 22.11 is quite clear.  It enlivens the jurisdiction of the primary judge upon the filing of a Notice of Appeal or an Application for leave to appeal. 

22. In this case, the mother has not filed any appeal as yet.  She intends to do so and, having regard to my knowledge of this matter from hearing it recently, I have little doubt that she will file an appeal.  Such an appeal is probably in train already and she is certainly within time to file an appeal. 

23. The mother cannot be criticised for any delay given the need to provide settled written reasons.  I accept unreservedly that she was extremely emotional in the course of the delivery of my reasons, particularly as they came to a close, and that she was unable to continue the hearing.  So, she can’t be criticised for any delay that arises there. 

24. But the settled reasons have been available in written form since 2 July 2021, and I am a little surprised that they had not found their way to her solicitor’s office or to Mr Tregilgas as at yesterday’s hearing.

25. Mr Tregilgas, to be fair to him, quite properly conceded that he had not had the opportunity to read the settled reasons, and it follows from that concession that he was not in a position at that time to be able to advise the mother whether she had a strong arguable case on appeal, a faintly arguable case or no case at all. 

26. Of course, counsel’s opinion on an appeal is not always the same view taken by the Full Court.  But in any event it is common ground at this time that there has been no Notice of Appeal filed and that there are no grounds of appeal advanced, so that it is quite impossible for this court to assess what possible grounds of appeal might be advanced if indeed there are any that have any merit.

27. I must confess to some admiration for Mr Tregilgas producing to the court a decision of a single judge of the Family Court of Australia, Ryan J, relating to the court’s power to grant leave to apply for a stay in circumstances where an appeal has not yet been filed.  I say that because I was, quite frankly, unaware of the decision in question: Sheldon & Weir (No 4) [2010] FamCA 1214. In that case her Honour held that it was open to a party to bring such an application for a stay notwithstanding that, on the face of rule 22.11, there would seem to be no jurisdiction for the first instance court to even entertain such an application.  One would think that ordinarily the first instance court would be functus officio.  However her Honour – in a typically articulate way with respect – has addressed numerous authorities and ultimately come to the view that it is open to make such an application. 

28. Specifically, at paragraph 32 of her Honour’s judgment, her Honour held in that case that the relevant line of authority supported the court concluding that there was jurisdiction to determine an associated stay application related to a proposed appeal where the time for lodgement of the appeal has not expired, and where the relevant appellant has informed the court of an intention to appeal. 

29. Her Honour identified that the situation may be a lacuna in the Family Law Rules that needs to be addressed by way of rule 1.09 and/or rule 1.12, thus permitting the first instance court to grant such an indulgence to the applicant for a stay.  Her Honour went on to say that, in the alternative, the first instance court would have an inherent jurisdiction arising out of a then non-existent appeal provided that the jurisdiction was exercised during the appeal period.  Her Honour considered this to be an incident of the court’s inherent jurisdiction, ie. that there would be power to determine such stay application.

30. Mr Tregilgas had been in that case and was familiar with it, and I appreciate him for his advice to the court and his assistance. 

31. Mr Mooney, on behalf of the father, did not dispute the correctness of the decision, at least for present purposes, thus saving me potentially a significant amount of time in re-visiting a decision made by a judge who went on to become a judge of the Full Court.  I consider it an interesting decision.  For present purposes I will follow it, though I am not strictly bound by it as it was handed down as a single instance judgment rather than as her Honour sitting as the Full Court. 

32. It seems to me, however, that if the Family Law Rules need to be bent to enable such an application to be made, or if the first instance court needs to exercise an inherent jurisdiction to permit the bringing of such an application, that it will be an unusual case where such leave would be granted.  That is to say, one would think that it would need to be a case in which there is a strong argument in favour of a stay. 

33. At paragraph 46 of the judgment, her Honour agreed that, generally, an application for a stay should not in fact be made absent the filing of a Notice of Appeal.  Her Honour referred to Friscioni & Friscioni [2009] FamCAFC 43, as well as a decision of Kirby J in JRN & KEN & IEG & BLG (1998) 72 ALJR 1329.

34. It seems to me that the question of leave to apply for a stay is very much bound up in the consideration of the strength or merit of the proposed stay application.  The leave that the court would give to bring such an application would logically only be exercised upon the court considering that an injustice would arise if the leave were not granted. 

35. I turn then to the relevant factors which I have to consider in the event that leave is granted.  The Full Court in Aldridge & Keaton [2009] FamCAFC 106 reviewed the relevant authorities concerning stays and set out what were the relevant principles. To be clear, it is a discretionary process.

36. The relevant factors were identified by the Full Court as follows:

    (i)The onus to establish a proper basis for a stay is on the applicant.  However, it is not necessary to demonstrate special or exceptional circumstances; 

    (ii)A person who has obtained a judgment is entitled to the benefit of that judgment; 

    (iii)A person who has obtained a judgment is entitled to presume that the judgment is correct; 

    (iv)The mere filing of an appeal is insufficient to grant a stay;

    (v)The court must consider the bona fides of the applicant;

    (vi)A stay may be granted on terms that are fair to all parties, which may involve weighing the balance of convenience and the competing rights of the parties;

    (vii)A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted.  The Full Court specifically identified that this will be a substantial factor in determining whether it will be appropriate to grant a stay;

    (viii)Some preliminary assessment of the strength of the proposed appeal, and particularly whether the appellant has an arguable case; 

    (ix)The desirability of limiting the frequency of any change in a child’s living arrangements;

    (x)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;

    (xi)And lastly, the best interests of the child or children the subject of the proceedings are a significant consideration.

37. I have already indicated that at this time, it is quite impossible for me to assess the merits of a proposed appeal where the appeal has not been filed.  It is clear enough that the father is entitled to the benefit of a judgment delivered after the conclusion of a three (3) day hearing at a time when the evidence was fresh in my mind and I was able to make a decision that it was in the best interests of these children that they live with the father. 

38. Overcoming a discretionary first instance decision is certainly possible, but it is no easy task.  The High Court in House v the King (1936) 55 CLR 499 and more recently in Gronow & Gronow (1979) 144 CLR 513, made clear the challenges that face an appellant.  This is not to say that appeals cannot succeed, only that the inherent nature of the discretion exercised at first instance makes it perhaps more difficult to succeed on an appeal where the complaint goes to the exercise of something that is inherently discretionary, and deliberately so by nature of the legislation. 

39. So although the mother carries the onus, at this time some of the usual considerations that would potentially support the mother in an application for a stay are simply not able to be considered by me.   On the face of the evidence it seems to me that the major arguments raised by the mother are that:

    ·     the children have been greatly affected by my decision and have indicated an intense reluctance and resistance to going to live with their father - such that forcing them to do so, as I ordered, would not be in their best interests and may traumatise them;

    ·     she also submits that the desirability of keeping the childrens’ living arrangements stable is a significant factor, particularly if her appeal were to later succeed.  Of course, if the appeal was heard, and assuming it was granted expedition, the appeal hearing might be at least some six (6) months away.   It might potentially be that an appeal is lodged, succeeds and that the matter is remitted back to a trial judge for rehearing.  If I don’t stay the orders, and if I were to issue the Recovery order as the father seeks, then in the event of that successful appeal the “status quo” at that time would rest with the father, perhaps not with the mother.

40. But what is the weight of a “status quo”?  The mother had the “status quo” at the final hearing as a result of my interim orders.  It did not avail her because, on the balance of weighing all of the considerations, and for the reasons that I gave, I considered these children would be better placed with their father.  So in my respectful view it cannot possibly be suggested that the appeal of the mother - if it is ever filed which I can only assume it will be – would be rendered nugatory by me not granting a stay.  I consider that a powerful matter on the weighing up of the stay application. 

41. As for the how the children have coped since my decision, the existing “status quo” and whether we should avoid future changes or potential changes in residence, the mother has provided some evidence as to the children’s reaction to my decision. 

42. She has asserted that it would cause great emotional stress on the children if they have to live with the father; that the children have been very upset and told her they don’t want to relocate to live with him.  Her affidavit of 1 July is somewhat inaccurate in one sense.  She suggests, seemingly by way of criticism of the process of the trial at paragraph 8, that the father and his counsel and solicitor appeared in person at the trial.  That is absolutely and demonstrably untrue.  They did not.  I made specific orders for everyone to appear by videolink and my reasons specifically recorded that.  I take that as an error in the mother’s affidavit rather than as anything else.

43. The mother says in her material that the children have reacted extremely badly, that X went immediately into a hysterical state of mind, was inconsolable, said he didn’t want to live with his father, didn’t want to leave his friends and that he was begging the mother stop them from having to go.  She refers to him saying he would rather kill himself than live with his dad, and essentially she paints the picture of him experiencing fairly significant distress. 

44. She paints the same picture of Y apparently being resistant to moving, saying she didn’t want to live in City F, that she loved her life in Adelaide and she refused to go. 

45. The mother also says that both children have kept her in their line of sight ever since the orders.  They have been very sad, they have suffered from diarrhoea. 

46. She gives evidence that on 4 July 2021, X fell off a bike and had a panic attack, such that ended up going to the G Hospital.

47. Nowhere in the mother’s affidavits do I see any evidence whatsoever that she has encouraged the children to go into the father’s care, or that she has done anything but support their distressed state. 

48. I have extreme concerns about the mother’s attitude to parenting.  In many ways, the concerns that I expressed in my reasons for judgment are in fact underscored by the events that followed my orders. 

1. I indicated in my reasons that I expected the children would be upset, at least in the short term.  This is not an easy transition.  I acknowledged the mother would be upset, there is no doubt about that.  It is also not rocket science that children exposed to their mother’s distress are going to cling to her and behave in exactly the manner of which the mother complains, and it is her obligation as a parent to do all she can to encourage and support the children in that transition.

2. It is tolerably clear that the father’s communication with the children broke down after the making of the orders.  The father has annexed to his material messages from X and messages from Y that are abusive and aggressive towards him. 

3. The father has endeavoured to have constructive discussions with the mother but has largely struck a brick wall. 

4. I do not doubt for a moment that the mother and the children have experienced distress as a result of my orders.  Equally, there is no evidence whatsoever that the mother has made any effort at all to try to soothe the children and to support them going to the father.  I do not suggest for a moment that this would be easy, but it is the mother’s responsibility as a parent.  In the same way that the father, when the mother relocated unilaterally, did not withhold the children or seemingly actively try to emotionally involve them in his issues by putting emotional “guilt trips” on them.

5. These children have found themselves in a very difficult position.  The mother has taken them to see her GP, who has written a “To whom it may concern” letter of 7 July.  This letter refers to the mother as a “hardworking, charming mother of her two children, who came to Adelaide with no work prospects but managed to gain herself a management position which she has excelled at”, and that at all times he has found her of sound mind, emotionally stable and highly attentive to her children’s needs. 

6. That evidence carries no weight whatsoever.  It is based entirely on the doctor’s assessment of the mother and her self-report.  It contains at least one egregious inaccuracy in that the mother relocated to Adelaide with a specific job to go to.  So, the reference to her having “no work prospects” is simply untrue.

7. I don’t suggest for a moment that the mother is not a highly functioning person in a work sense.  But her functioning as a parent has been greatly impaired in recent times for the reasons set out in my reasons for judgment of 23 June - which I do not intend to labour save that I specifically recorded my concern that, when the mother becomes emotional, the children are exposed to it and the father then doesn’t get to have contact with his children. 

8. This is exactly the phenomenon that has happened since I handed down my orders. 

9. The mother had said in her affidavit of 1 July 2021 that a stay would not prejudice the father because the arrangements from the interim orders (made on 12 October 2018) would still prevail, “and that Mr Berryman would continue to see his children on a regular basis during the school holiday periods.” 

10. Now, pursuant to the prior interim orders the father would have had the children for half the June/July 2021 school holiday period.  Pursuant to my final orders of 23 June 2021, the children were instead to go into the father’s primary care on 5 July 2021.  My order was structured so that the children would still spend half of the holidays with the mother, and the handover could be done in an orderly way.  (I could have ordered a much more immediate handover – in some ways, looking at what has happened, I wish I had.  Hindsight is a wonderful thing.) 

11. My final orders were crafted in such a way that this was supposed to be a transition to the father.  But he never saw them.  On the very first opportunity (5 July 2021) he missed out on seeing them as he sat around the Melbourne Airport presumably waiting for children that were never going to come. 

12. It was incumbent upon the mother to get those children to the father.  The whole basis upon which this application has been heard is a false basis.

13. The children have instead stayed living with the mother, exposed to her intensity and her distress.  They are stuck in a “limbo” situation where, it seems to me on the evidence, the mother has “gone in to bat” for them in an effort to keep them in Adelaide, and the children well know it.  

14. The children are presently in an impossible situation.  They should have been in the Region C with their father.  That is where they should have been.  On the first opportunity to send the children, the mother failed dismally. 

15. The mother has taken the children to see a Child and Family Consult/Therapist, Ms E.  Perhaps unsurprisingly she did so without reference to the father.  She and the children met with Ms E on 7 July 2021.  A report from Ms E has emerged only yesterday. 

16. It is of course an inherently one-sided, somewhat dramatic - and entirely in my view, unreliable account. 

17. The children are clearly distressed, the mother is clearly distressed.  These things were expected.  These things were taken into consideration by me when I made my decision. 

18. I am dismayed to see allegations now in the report of physical abuse by the father that were not even advanced at the trial. 

19. The report does refer to the children disclosing self-harm and suicidal ideation.  Notably, X maintains that he loves his father, doesn’t want to return to New South Wales and would prefer his father to live in Adelaide.  When Ms E explained to X about the lack of confidentiality, he expressed concern about his father knowing the content of the conversation.  He didn’t want his father to think he didn’t love him. 

20. Y reported struggling to spend time away from the mother and said her heart would break.  There is a suggestion, perhaps, that Y is telling Ms E that the father was trying to coerce her with gifts so that she would want to live with him.  I’m not sure where that comes from, but it troubles me. 

21. The recent court orders, according to Ms E, appear “to have fractured Y’s feelings towards her father”.  That alarms me enormously.  It alarms me because it is essential that these children have the opportunity to have the relationship with their father that they deserve, and which it is the mother’s responsibility to encourage.

22. I have no doubt that Ms E meant well when she saw these children. She is somebody who has spoken to them in an entirely one-sided way without any input from the father. She was provided with documents that were prohibited to be given to her by section 121 of the Family Law Act 1975.  The mother has given her a raft of documents that she had no permission to give, and which constitutes prima facie a criminal offence.  It is not something that I intend to refer for prosecution to anyone.  I merely make the point that the mother has demonstrated what might be seen as a “lawlessness” in her approach.  Or perhaps more precisely, that she is a “law unto herself” which would not be incompatible with a number of the findings that I have previously made in my reasons for judgment.

23. I am alarmed about the wellbeing of the children in the mother’s care at this time.  I am alarmed about her attitude towards compliance with court orders. 

24. The biggest risk to these children at the moment, in my assessment, is the current “status quo” with their mother, where the children are likely exposed to unremitting distress and in “limbo”.  The father and his brother tell me on affidavit that the mother rang the father and told him the kids wouldn’t be going to him because she wouldn’t be dictated to by the courts.  The mother denies using that expression, but certainly she has acted in such a way that suggests she won’t be dictated to by courts.  I have recorded in my previous judgment that she has displayed a triumphalism in victory, and now I see her display a spoiling role in defeat.

25. In the decision of the Full Court in K & B (2006) FLC 93-288, the Full Court dismissed a stay appeal when it found that the arrangements existing for a particular child at the time of trial were not satisfactory, so that the maintenance of the “status quo” was not in fact in the children’s best interests. 

26. This leads me to the other major point of Mr Tregilgas, which is that the “status quo” is in some way a positive aspect of the mother’s case, or a positive aspect for the mother.  This feeds into the argument about not changing children’s residential arrangements unnecessarily. 

27. The current status quo is not satisfactory.  I recorded as much in my reasons for judgment and I’m not going to repeat what I said there.  If the current status quo is not appropriate or not satisfactory, that must be a significant matter which goes against the granting of a stay.  Such a discretion has to be exercised judicially. 

28. The reality of the matter is that, as the Full Court said in K & B (supra), the interests of children are not promoted by:

    ·     an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application;

    ·     ignoring unsatisfactory arrangements at the time of the orders, or significant events which have occurred the making of these orders. 

29. The current parenting arrangements are unsatisfactory.  The children are in limbo, they are stuck in a situation where their mother is understandably distressed.  But in my view the mother has not, on the evidence before me, shielded the children from that in any real way.  Indeed, she has “gone in to bat” for that distress.  And the father has ended up missing out on even seeing the children over the June/July holidays – being holidays that she assured the court, when she filed her application, would be a minimum standard that he could expect if a stay was granted (and the parties reverted back to the interim orders). 

30. I have no evidence of the mother responding to the father’s email about getting the children enrolled into school in New South Wales.  She has done nothing in any serious way to try to comply with the orders.

31. When I weigh up all of the relevant considerations, I accept there is inevitably a degree of risk to the children being distressed if they move to live with their father.  I accept that.  It is a risk I was prepared to take when I delivered my reasons, and my reasons are further buttressed and enhanced by what has happened since.  It could not possibly be said that the current environment – where the children are allowed or permitted to send their father abusive messages; where they don’t get to speak to him on the telephone; and where they are exposed to the mother’s, I strongly suspect, very high distress – I do not see how any of that could ever be in their best interests. 

32. These children need to move to their father’s care as soon as possible.  They should already be there.

33. The mother’s application for a stay is devoid of merit, in my respectful view.  It follows that she ought not to be granted leave to even bring the application.  But even if I had granted leave, I would in any event have dismissed her application.

    FATHER’S RECOVERY APPLICATION

34. The next issue is the father’s application for a Recovery order pursuant to section 67V of the Family Law Act 1975. 

35. Section 67V of course requires the court to arrive at a “best interests” determination. I did that a few weeks ago, after seeing and hearing both of these witnesses. I made a decision as to what was best for the children. The mother is not in breach of my orders – I don’t necessarily use the word “breach” in a pejorative sense - but the orders are not being complied with.

36. The children are in distress.  They are stuck in limbo.  This is not good for them. 

37. An appeal will not be nugatory, as I have indicated.  If the mother succeeds, then the father’s status quo will be worth whatever it is worth in the same way the mother’s was when I heard the case in June.  A successful appeal will not be rendered nugatory.

38. If I leave the children sitting in Adelaide exposed to the distress, the chaos and the uncertainty of what might happen if and when an appeal is lodged and if and when a Full Court makes a decision about whether my judgment was right or wrong, I do these children no favours.  It seems to me they are exposed to unremitting distress, and they are acting out against their father in ways that are inimical to their best interests. 

39. They love their mother dearly, I have no doubt.  They can see her on the holiday periods.  I have no doubt, in the same way, they will be probably be distressed when they leave her, in the same way as they have been distressed when they leave the father. 

40. I consider it overwhelmingly in the best interests of these children to enforce my final orders as soon as possible.  I do not consider they should spend so much as another day in Adelaide.  They should be back in the Region C as quickly as can be arranged.

41. I therefore propose to make a Recovery order, but to order that it lie on the file to be uplifted upon the written request of the father’s solicitor.  I am hoping, although it is based on hope more than experience, that the mother will comply with this and make arrangements that do not involve the Federal Police attending.  One would not think that Federal Police attendance would be something that the children would be happy about, and it might not do the mother’s case any good if my orders are in fact successfully appealed and she has to have it heard by another judge.  One would think the execution of a Recovery order, in those circumstances, would indicate an inability to put the children’s needs above the mother’s own emotions – something of which she has shown, unfortunately, a previous capacity to do.

42. I therefore propose to make those orders.  I propose to reserve everyone’s costs.  I could proceed to hear costs applications if people want me to, but I don’t consider really that Mr Tregilgas - whose client would be facing the risk - has had enough opportunity to consider her position.  I am not going to do that to you Mr Tregilgas. 

43. I’m assuming you will want these reasons taken out in writing as a precaution, especially if you appeal this, so I will have the reasons published as soon as possible.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.

Associate:  

Dated:       15 July 2021