Bircher & Bircher (No 2)
[2019] FamCA 991
•13 December 2019
FAMILY COURT OF AUSTRALIA
| BIRCHER & BIRCHER (NO. 2) | [2019] FamCA 991 |
| FAMILY LAW – JUDGMENTS – Stay – Where a final parenting order was made and judgment delivered following a defended hearing – Where the mother has filed a Notice of Appeal in relation to the final order and seeks a stay of the order pending the outcome of the appeal – Where the stay is opposed by the father and the independent children’s lawyer – Where the order has been put in operation – Where the mother did not establish a proper basis for a stay – Where the application is dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Anderson & Senior (Stay Appeal) (2013) FLC 93-556 Bele & Vaughan [2011] FamCA 724 Clemett & Clemett (1981) FLC 91-013 Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322 Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349 |
| APPLICANT: | Ms Bircher |
| RESPONDENT: | Mr Bircher |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Singh-Pillay |
| FILE NUMBER: | BRC | 1459 | of | 2011 |
| DATE DELIVERED: | 13 December 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 13 December 2019 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| FOR THE RESPONDENT: | Self-represented |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Cornerstone Law Offices |
Order
The Application in a Case filed by the applicant mother on 28 November 2019 seeking a stay of the Order dated 27 November 2019 pending appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bircher & Bircher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1459 of 2011
| Ms Bircher |
Applicant
And
| Mr Bircher |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 27 November 2019, I made a parenting order in relation to the three children of Ms Bircher and Mr Bircher. The changes made to the parenting arrangements that existed prior to that order include that the children will live in a week-about arrangement rather than nine days with the mother and five days with the father in each fortnight and the father will have sole parental responsibility for all health issues relating to the children rather than a continuation of equal shared parental responsibility.
On 4 December 2019, the mother filed a Notice of Appeal in relation to the order (save for the provision that she have sole parental responsibility for choosing the high school for the two children). The mother now seeks a stay of the parenting order pending the hearing of the appeal.
In support of her application for a stay the mother says:
a)The order represents a “big change to the children’s current arrangement”;
b)The mother has historically been the parent providing parental responsibility for all health issues relating to the children despite the parents having equal shared parental responsibility; and
c)Prior to the order, the mother had historically spent the first half of the school holidays with the children and the father the second half. The current order changes that arrangement and the mother has already made bookings and non-refundable flights for what she anticipated would be her time with the children. She says that she has tried to resolve this issue but the father has declined to discuss it. I note that the mother provides no evidence of any bookings made or non-refundable flights.
The father and the independent children’s lawyer oppose the granting of the stay. The order has been put into operation and the father and the children are currently holidaying interstate.
legal principles applicable to a stay application
The filing of a Notice of Appeal does not of itself stay the operation or enforcement of the order appealed against.[1] However, once an appeal is filed a party may apply to stay its operation or enforcement.[2]
[1] Rule 22.11 of the Family Law Rules 2004 (Cth)).
[2] Ibid.
The granting of a stay is a discretionary decision which will be informed by matters such as:
a)The bona fides of the person making the application for the stay;
b)Whether a successful appeal will be rendered nugatory if the stay is not granted;
c)The merits of the appeal;
d)Any delay in bringing the stay application;
e)When the appeal is likely to be determined; and
f)The balance of convenience.
In considering a stay of a parenting order the best interests of the child are of course a significant factor and it is generally considered to be preferable to minimise the number of significant changes a child might have to endure. [3]
[3]Clemett & Clemett (1981) FLC 91-013.
Whether or not there needs to be a special or exceptional circumstance to justify a stay has been the subject of some discussion in a number of cases.[4]
[4] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; cfAnderson & Senior (Stay Appeal) (2013) FLC 93-556 (as to whether special or exceptional circumstances required) at [34]; Bele & Vaughan [2011] FamCA 724; see also Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322 at [12] and Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349 at [19].
I have not approached the determination of this application on the basis that the mother need show a special or exceptional circumstance.
The mother’s grounds of appeal are as follows:
a)Her Honour erred in giving sole responsibility for health to the father when the weight of the evidence was against the father;
b)There is insufficient reason for her Honour to make order 11 and it was not sought by either parents;
c)There is no evidence to support the finding that the mother indicated her intention to continue to rely upon old diagnoses for the purpose of continuing to receive the carers pension;
d)Her Honour erred in finding that a week-about arrangement would be more conducive to the children’s health;
e)Her Honour erred in finding that the mother agreed to pay the school fees;
f)Her Honour erred in finding that the mother rejected Dr G’s diagnosis of the children;
g)Her Honour erred in finding that the mother had taken the children to attend upon 47 different health professionals since birth and that it was excessive;
h)Her Honour erred in finding that the father was entitled to attend the GP appointment on 4 February 2016;
i)Her Honour erred by not considering that the history of family violence was caused by the father.
DISCUSSION
I have no reason to doubt the bona fides of the appeal.
A successful appeal would not be rendered nugatory if it succeeds. That is because the living arrangements could be reduced by two nights per fortnight, as sought by the mother, and parental responsibility could also be changed.
As to the merits of the appeal, I make the following observations:
a)A successful appeal based solely on weight attributed by the trial judge to particular evidence is notoriously difficult;[5]
b)Paragraph 11 of the order, which is under attack by the mother, reduced the number of telephone calls to the parent with whom the children were not living from three per week to one. During submissions the following exchange occurred between counsel for the independent children’s lawyer and the bench:
Mr McGregor: I didn’t pay particular attention to that – [the telephone time three times a week continuing]…I should have but I wonder if there is something that is more fraught than - - -
Her Honour: I think it might be. I see that (a) it interrupts the children’s time with the other parent to an extent that I don’t see is justified, particularly as they get older, and (b) the children have expressed some dissatisfaction at having to do that.
Mr McGregor: If it was a week-about I would be happy for paragraph 16 of the draft to be taken out from my perspective.
(I interpolate that paragraph 16 made provision for a continuation of the three times a week).
Her Honour: There could, perhaps, be some provision for a telephone call once a week.
Mr McGregor: I agree with that. Three times a week is too much. That would be more appropriate where the children are not seeing the father as often because that is more designed to them ringing him not the other.
[5]Gronow & Gronow [1979] 144 CLR 513 at 519 to 520.
While the father did not initiate change to the frequency of telephone time, he ultimately adopted the submissions made on behalf of the independent children’s lawyer and submitted that maybe the Wednesday only was appropriate.
Despite the issue being clearly a matter under discussion, the mother made no submission in relation to telephone time.
Whether certain findings were open on the evidence will no doubt be apparent from the appeal record. However, even if certain findings were made in error, the mother has to establish that the findings were material to the outcome. From my recollection of concessions made by the mother during the trial, I consider that the mother will face considerable difficulty with some of her grounds of appeal. It also seems likely that the mother will have difficulty establishing materiality even if she establishes factual error.
The issues for trial, identified with the assistance of the parties and the independent children’s lawyer, did not identify family violence as an issue in the proceedings.
There has been no delay in bringing the stay application.
There is no evidence before me as to when the mother’s appeal is likely to be heard.
It is regrettable that the mother’s plans for the upcoming holidays may have been interrupted (although I note that the mother did not provide any evidence to support her contention) but her contention alone does not persuade me that the order should be stayed, nor, indeed, do any of the other matters raised by the mother.
The balance of convenience, in my assessment, favours the dismissal of the application and I so order.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 December 2019.
Associate:
Date: 20.12.2019
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