Bletch and Douglas (No. 3)

[2008] FamCA 178

FAMILY COURT OF AUSTRALIA

BLETCH & DOUGLAS (NO. 3) [2008] FamCA 178

FAMILY LAW - ORDERS – Stay – Children’s case – Where stay of orders sought pending appeal of making of those orders

Family Law Act 1975 (Cth)

Clemett & Clemett (1981) FLC 91-013
EJK & TSL (No 2) [2006] FamCA 806
House v The King (1936) 55 CLR 499
Wait & Waite- Hollins & Anor (2007) FLC 93-325

APPLICANT: Mr Bletch

RESPONDENT: Ms Douglas

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

FILE NUMBER: SYF 2318 of 2003

DATE DELIVERED: 12 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 11 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Ms Linden, York Family Law

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Mr Beazley, Beazley Singleton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. The orders made by me on 3 March 2008 be stayed until the earlier of the following events:

   (a)       The Full Court hearing the father’s appeal filed 6 March 2008 or;

   (b)       The close of Court business on 21 April 2008

   Upon the following conditions:

   (i)That the father prosecute the appeal diligently and expeditiously. 

   (ii)That the father press his application for expedition before Boland J on 17 March 2008, and any other occasion she may set.

   (iii)That the father be prepared to have his appeal heard in any site in Australia appointed by the Full Court. 

   (iv)That the father prosecute his appeal on the date appointed by the Full Court for the hearing.

2. I request the Full Court afford whatever expedition is available for the hearing of the father’s appeal.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2318  of 2003

Mr Bletch

Applicant

And

Ms  Douglas

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application for a stay of the orders made by me on 3 March 2008. The stay is sought pending the hearing of an appeal against those orders. The appeal has been filed by the father in the proceedings, determined by me. He seeks the stay of orders. 

2. The guidelines for hearing a stay application pending the hearing of an appeal in a children’s case are set out in the cases of Clemett & Clemett (1981) FLC 91-013, Waite & Waite-Hollins & Anor (2007) FLC 93-325, and EJK & TSL (No 2) [2006] FamCA 806, amongst others.

3. The guidelines can be conveniently condensed to the following key points:

   a)The best interests of the child are an important but not paramount consideration.

   b)The frequency of any changes in the custodial arrangements should be limited as much as possible. 

   c)Does the appeal appear to be based on substantial grounds and not merely a delaying tactic? 

   d)Can the appeal be dealt with within a reasonable time? 

   e)Are the present circumstances for the child satisfactory?

4. I will deal with these considerations as follows.

Does the Appeal Appear to be Based on Substantial Grounds and not merely a Delaying Tactic?

1. In submissions, counsel for the respondent mother, took me to the grounds of appeal as they appear in the Amended Notice of Appeal filed 11 March 2008.  He submitted that some grounds, in fact, required leave of the Full Court to proceed.  He described the balance of the grounds as attacking the exercise of discretion by the trial judge.  He predicted that the appeal would fail on the test in House v The King. 

2. Whilst being heartened to hear those submissions, I must say I do not necessarily share his optimism.  Without wishing to be in any way disrespectful to the Full Court, it is possible for an appeal to succeed where the only challenge is to the exercise of discretion.  Grounds of appeal frequently recite a ground which claims that the trial judges’ discretion miscarried.

3. Further, although I endeavoured to crystallise the guidelines for first instant judges which had fallen from the Full Court to assist in the hearing of international relocation cases, I think there is not yet available a guideline which post-dates the amendments to the Family Law Act1975 (Cth) which came into effect in July 2006.  I would not, therefore, dismiss the stay application on this ground.

Can the Appeal be dealt with within a Reasonable Time?

1. The appellant has filed an application for expedition of the appeal.  That application is listed before Boland J on Monday, 17 March 2008.  My inquiries reveal that the Full Court would be able to hear the appeal if it was expedited in the first week of April 2008.  The appellant tells me that the appeal books can be ready in two weeks. 

2. The mother has postponed her travel until 6 April 2008.  This will coincide with the commencement of the new school year for the child in America.  The mother in her affidavit, which she filed in this application, sets out what she has done to invigorate her work in the US, make arrangements for accommodation, schooling and the like for the child and herself based on the orders I have made which permit her to relocate to the USA .

3. The delay in the mother leaving Australia will cause her grave inconvenience, anxiety and subject her, I accept, to pressures she was about to leave behind.  Should the mother’s departure to the United States of America be delayed for a lengthy period of time, I would have to acknowledge it would probably put in jeopardy some of the business opportunities the mother is anticipating will be available to her in the United States.  It will continue to expose the child to the frequent conflict between his parents.  It will mean the child will not have the advantage of experiencing his mother’s parenting in the USA environment.  It will mean that the mother could continue to be exposed to the father’s personality which I found to be bullying and harassing.

4. In short I conclude it is reasonable on balance to continue to have the child exposed to the parenting he receives in Australia under the orders which were in place prior to 3 March 2008 for a short period of time.  I anticipate that to be until mid April this year.  I anticipate that the Full Court will be in a position within that time to hear the appeal somewhere in the Eastern States of Australia (including Adelaide). I anticipate that the Full Court, within that time period, should be in a position to consider whether the stay should be extended.

Are the Present Circumstances for the Child Satisfactory?

1. During the hearing I heard from the Family Consultant.  She recommended that the child not be required to participate in an equal shared time parenting arrangement.  He has been living in a week-about regime since mid 2007.  He spends time with each parent on a Wednesday of each week.  It seems to me that extending that arrangement until potentially mid April 2008 would not be too onerous on the child.

Other Matters

1. It would not be in the child’s best interests to allow him to go with his mother to the United States of America in the next few weeks only to have him return in the event of the Full Court overturning my orders.  If the Full Court can hear the appeal quickly (which I am satisfied they can), then he should wait and see the result of that case.

Conclusion

1. I conclude the stay should be granted for a short period of time.  It should not extend to a time which defeats the mother’s financial opportunities in the United States of America.  There should be conditions attached to the stay.

The Conditions

1. The conditions which I consider appropriate to attach to the stay should be as follows:

   a)That the father prosecutes the appeal diligently and expeditiously. 

   b)That the father presses his application for expedition before Boland J on 17 March 2008, and any other occasion she may set.

   c)That the father be prepared to have his appeal heard in any site in Australia appointed by the Full Court. 

   d)That the father prosecutes his appeal on the date appointed by the Full Court for the hearing.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date:  19 March 2008