Brennan & Shaw (No. 2)
[2008] FamCA 744
•3 September 2008
FAMILY COURT OF AUSTRALIA
| BRENNAN & SHAW (NO. 2) | [2008] FamCA 744 |
| FAMILY LAW - ORDERS – Stay – Children's case – application by the mother to stay orders which provide for the father to spend time with the child, pending the mother’s appeal from that decision – stay application refused |
| Family Law Act 1975 (Cth) |
| In the Marriage of Carlin (1977) FLC 90-320 |
| APPLICANT: | Ms Brennan |
| RESPONDENT: | Mr Shaw |
| INDEPENDENT CHILDREN’S LAWYER: | Adamson Solicitors |
| FILE NUMBER: | SYF | 3250 | of | 2006 |
| DATE DELIVERED: | 3 September 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 27 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G. Gould |
| COUNSEL FOR THE RESPONDENT: | Mr G. Watkins |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr G. Fernie |
Orders
The mother’s application for a stay of Orders made by me on 12 August 2008 is dismissed.
The costs of the application are reserved pending the determination of the Appeal. The matter of costs may be re-listed by arrangement with my Associate, 14 days after the determination of the Appeal.
IT IS NOTED that publication of this judgment under the pseudonym Brennan and Shaw is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3250 of 2006
| Ms Brennan |
Applicant
And
| Mr Shaw |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application by the mother seeking a stay of proceedings upon Orders made by me on 12 August 2008 in relation to arrangements for the child of herself and the father, respondent to the application, to spend time with the father pending an appeal from my decision.
The Orders that I made were:
(1)The parties have equal shared parental responsibility for the major long-term issues in relation to the child, [O], born [in] March 2006 (the Child).
(2)The Child live with the mother as set out hereunder and at those times the mother be responsible for the Child's day to day care, welfare and development.
(3)The Child live with the father as set out hereunder and at those times the father be responsible for the Child's day to day care, welfare and development.
(4)For the purpose of this order the weeks of the year are divided up into either odd or even, where the first whole week of year in which 1 January falls is week 1, an odd week.
(5)Each week is to start on a Monday and conclude on a Sunday.
Father’s Weekly Time Periods
(6)The child is to live with the father during the following periods:
(a)At present taking effect from the date of these orders:
(i)commencing the first Wednesday following these Orders, the Child is to spend the night with the father from 6.00 pm every Wednesday to 8.00 am the following morning
(ii)the Child is to spend every Friday with the father from 8.00 am to 6.00 pm
(iii)commencing the second Saturday from the date of these orders, the Child spends 1 night with the father each alternate weekend from 10.00 am Saturday to 10.00 am Sunday.
(b)Commencing in March 2009 ([the Child’s] 3rd Birthday):
(i)the Child is to spend the night with the father from 6.00 pm every Wednesday to 8.00 am the following morning
(ii)the Child is to spend 2 nights with the father each alternate week from 10.00 am Friday to 10.00 am Sunday.
(c)Commencing 1 January 2011 when [the Child] is aged 5:
(i)the Child is to spend the night with the father each alternate week from 6.00 pm on Wednesday to
8.00 am the following morning(ii)the Child is to spend 3 nights with the father each alternate week from the later of, 8.00 am Friday or the conclusion of school on Friday, to the later of 8.00 am Monday or the commencement of school on Monday morning.
(d)Commencing when the Child is 7 years of age:
(i)The Child is to spend the night with the father each alternate Wednesday from the later of 8.00 am or the commencement of school to the latter of 8.00 am the following morning or the commencement of school
(ii)The Child is to spend 4 nights with the father each alternate week from the later of 8.00 am or the conclusion of [the Child’s] school day on Thursday to the latter of 8.00 am Monday or the commencement of school.
(e)Commencing when the Child is 10 years of age:
(i)The Child is to spend the week with the father each alternate week from the conclusion of school on Monday to 8.00 am or the commencement of school the following Monday.
School Holidays
(7)From the time the Child reaches the age of 5 and from the time the Child commences school, the Child will spend one half the school holidays with the father, and the orders dealing with time with the father are otherwise suspended, as agreed. Failing agreement, in years that end with an odd number the Child will spend the first half of all school holidays that commence in that year with the father and conversely years that end with an even number the child will spend the second half of all school holidays that commence within that year with the father.
Other Days
(8)Father
(a)The Father is to spend time periods with the Child:
(i)from 6.00 pm on Christmas Eve to midday on Christmas Day in 2008 and in even numbered years thereafter
(ii)from midday to 7.00 pm on Christmas Day in 2009 and in odd numbered years thereafter
(iii)from 8.00 am to 6.00 pm on the father’s birthday
(iv)from 8.00 am to 6.00 pm on Fathers Day.
(b)In respect to the Child’s Birthday, if it does not fall within the father’s weekly entitlement above, the father is to spend time with [the Child]:
(i)from 3.00 pm to 6.00 pm that day if the Child’s birthday falls on a daycare or school day
(ii)from 10.00 am from 3.00 pm that day if the Child’s birthday does not fall on a daycare or school day.
(9)In the event that the father is unable by virtue of his work commitments to collect the child, the child may at the father’s option be collected for contact by the paternal grandmother, [Ms B Shaw], the paternal aunt, [Ms C Shaw], or the parental great-aunt, Ms [U], or such other person as the parties may agree.
(10)The father shall provide to the mother by facsimile transmission or email a copy of each of his work rosters at least seven days prior to the commencement of the roster whilst ever he remains employed in the [transport] industry on roster.
(11)In the event that the father is required to work whilst on standby he is to provide the mother with 12 hours notice of the cancellation of any period when he is to spend time with the child but nothing in this provision will prohibit the parties agreeing that in lieu of the child spending time with the father the child may spend time with one or more of the persons nominated in order (9) hereof, or any other agreed person.
(12)Mother
(a)Save as provided for the child to live with the father the child shall live with the mother.
(b)The mother is entitled to spend the following time periods with the Child if any or all of the following days fall on the father’s “Weekly Time Periods” or “School Holiday” time periods:
(i)from 3.00 pm to 6.00 pm that day if the Child’s birthday falls on a daycare or school day
(ii)from 10.00 am to 3.00 pm that day if the Child’s birthday does not fall on a daycare or school day
(iii)from 8.00 am to 6.00 pm on the mother’s birthday
(iv)from 8.00 am to 6.00 pm on Mothers Day.
Pick-up and Drop-off
(13)Unless otherwise agreed, that, for the purpose of the father spending time with the Child pursuant to these Orders, the father or his nominee collect the Child at the mother’s or other family residence, the Child’s daycare facility or the Child’s school, as appropriate. The mother or her nominee will collect the Child at the appropriate time from the father’s or other family residence and return the Child to the mother’s residence, the Child’s daycare facility or the Child’s school, as appropriate, except when the Child has spent the night with the father and is attending daycare or school the following day, then the father or his nominee will deliver the Child to the Child’s daycare facility or the Child’s school, as appropriate.
Communications
(14)The parties, unless otherwise agreed between them, communicate with each other in relation to the Child by email, except in the case of emergency.
(15)Within 7 days of the date of these Orders and within 48 hours of any change of such details, the mother is to provide to the father by email the names, addresses and telephone numbers of the Child’s treating doctors, dentists and childcare facilities.
(16)The mother authorise and request all treating doctors, dentists, childcare facilities, preschools and schools attended by the Child at any time to communicate with and to provide to the father copies of reports, correspondence, newsletters, et cetera.
Travel
(17)Both parties do all acts and things necessary to obtain a passport for the Child in the event that one party requests the other party’s cooperation in obtaining such passport.
(18)In the event that the father wishes to take the Child out of the Commonwealth of Australia, the mother provide the father with the Child’s passport within 7 days of the father requesting same and that the father return the Child’s passport to the mother within a reasonable time after the conclusion of the father’s overseas trip with the Child.
Illness
(19)In the event that the Child is seriously ill, is admitted or is to be admitted to hospital, the party in whose care the Child is at that time is to immediately notify the other party.
(20)The mother is to retain a non-family member as the Child’s treating doctor or other medical practitioner or provider and provide information to the father of the address and contact telephone numbers of such health care provider such that the father can contact any such provider when needed and discuss the Child’s medical needs at any time. Nothing in this order shall prevent or prohibit the mother from consulting a medically qualified family member concerning the child’s health in the event of a medical emergency.
Child’s Name
(21)The Child is to retain either her maternal or paternal family name.
(22)If the mother changes her family name from “[Brennan]”, the Child is to adopt her father’s family name “[Shaw]”, such that the Child’s family name reflects at least one of her parent’s family names.
(23)The mother is restrained from publishing or permitting to be published to the child any documents or records or account of these proceedings or otherwise discussing these proceedings with the child.
(24)Pursuant to Section 65DA(2) and Section 62B, 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.
Costs
(25)Any applicant for any order for costs is to file an application, which has a note of the costs sought and the basis on which they are sought, and serve it on any respondent to the application within 28 days of today’s date together with a written submission in support of such an application.
(26)Any respondent to any application for costs file within a further 21 days their response to the application, accompanied by a written submission in support of such response.
(27)In the event that either party wishes to adduce affidavit evidence in support of their application or response that material is to be filed with their written submissions.
(28)In the case of the father and mother, a statement of current financial affairs is to be filed in support of any such application or response.
(29)In the event that no applications are filed within 28 days the Court will not thereafter entertain an application for an order for costs.’
In her Application in a Case the mother seeks a stay in the following terms:
“1.That the orders 6, 7, 8, 9 and 20 made by Justice Fowler on
12 August 2008 be stayed pending the determination of the Notice of Appeal.2.That the orders made by Justice Fowler on 1 April 2008 continue in force pending the determination of the Notice of Appeal.”
The Affidavit Evidence
In support of her application the mother has filed two affidavits, one annexing her Notice of Appeal. It is brought to the Court’s attention that an application has been filed seeking that the hearing of the appeal be expedited. That of course is for the Appeal Court and I intend to make no recommendation in that regard.
The mother’s solicitor, now Mr Rex Bayliss, filed an affidavit attaching a certificate from a Dr G, an obstetrician and gynaecologist, certifying that the mother was confined to bed rest from Sunday, 17 August 2008 until Thursday, 21 August 2008 inclusive, due to pain and bleeding from a miscarriage.
The wife’s concession on the stay application
Before me it was conceded by Counsel for the mother that she would accept a stay which would permit the terms of my order to be given effect to, save for the provision that the time spent by the child with the father be supervised pending the hearing of the appeal. Such supervision could be conducted by those who had formerly supervised such time.
I am informed by Mr Gould for the mother that the hearing of the appeal, if expedited, is likely to take place, upon his instructing solicitor’s enquiry, in the first half of next year and he could not say when it would take place if expedited but tentatively suggested it may be before the end of this year.
The matter had been previously listed before me for a stay of my Orders pending the hearing of the application presently before the Court.
The effect of that stay would have been to deny to the child the opportunity of spending time with the father unsupervised overnight for one night.
Mr Broun QC appeared on that occasion on behalf of the mother and informed the Court that he had been advised by Counsel for the father that a certain stairwell at the home of the father’s mother, where he resided, and where he proposed to spend the time with the child, and about which the mother had expressed concern had been “child-proofed”, meaning that it had been rendered no danger to the child.
Mr Broun QC informed the Court that the child-proofing of that stairwell substantially allayed his client’s fears and accordingly the interim stay application was refused.
I am informed by Counsel that notwithstanding that refusal the mother withheld the child from the father on that night. Mr Gould offered only the statement that such withholding demonstrated his client’s concern for the child in the circumstances of the Orders that I have made.
I have continued to hear the application for the stay notwithstanding that clear and admitted breach of the Order. It is my hope that those representing the mother will explain to her the necessity for complying with Court Orders and the consequences that can flow from a flagrant disregard of them.
Turning to the submissions made by Mr Gould, they came ultimately within a short compass, namely that the appeal was no mere delaying tactic and that it had been prosecuted diligently. He proposed that any order I make as to stay could be made conditional on the prompt prosecution of the appeal and the application for expedition which had been filed. I accept that the appeal is not a mere delaying tactic.
Secondly, he submitted that the primary concern of the mother was that the time to be spent with the child by the father would be without the supervision which prior to the hearing had been a condition of the father’s time with the child.
It thus appears that the mother’s concerns are very limited in scope. The mother in the proceedings giving rise to the judgment and orders now appealed from sought supervision of the time spent by the child with the father on the basis that the father had some unspecified mental disorder or disease. The orders that she seeks on appeal include provisions that the supervision continue, that the father be subject to further investigation and consideration by Dr D, the Court appointed expert. She also seeks that for that purpose Dr D be provided with a copy of certain records. In the meantime, the mother sought orders that there be no overnight time spent with the father (although this was conceded before me by Mr Gould as not sought as a condition of stay) nor indeed any unsupervised contact nor that the father be permitted to travel with the child in a motor vehicle.
The evidence before me on hearing was clear that the father had been investigated by three psychiatrists and none of them, including Dr D, thought that there was any basis for not granting to him the orders that he sought.
The father had suffered from depression, he had been treated for it and there was no evidence that he currently suffered from depression.
He had on all accounts a close and loving relationship with his daughter and he was a responsible employee of an international transport company ….
He had attended, since the commencement of this matter, supervised contact with the child on 173 occasions. There had been no complaint about the father’s time with the child from any of those who had supervised that time. That included time spent with the child at the child’s day care which the child attended on some days of the week.
In Clemett and Clemett (1981) FLC ¶91-013, the desirability of limiting the frequency of changes in custodial arrangements was suggested. In this case, the father is not a stranger to the child. Indeed, the evidence before me was that the child developed, from the regular contact with the father, a bond with him and would benefit from continued contact with him.
The evidence was that the arrangements sought by the father were appropriate for a child of this child’s age.
The evidence was that there was nothing which would indicate that unsupervised time would operate to the child’s detriment or incur a risk likely to be detrimental to the child.
The expert witnesses, with the exception of Dr D, were not cross-examined by the mother, but cross-examination of Dr D was limited indeed and based upon a document not in evidence.
It is argued by Mr Gould that even if I were to come to the conclusion that there was no risk to the child from the father that I should take into account the effect on the child of the mother’s stress at the father having unsupervised time with the child.
I have already in my judgment determined that there is no risk to the child from the father having unsupervised contact with the child. I do not change that view since there is no evidence from which one could conclude that such a change could be justified. The inescapable conclusion from the evidence was that there was no basis upon which the continuation of the supervision order could be justified, and accordingly I do not believe the appeal on that basis has merit.
I have determined positively that it is in the child’s best interests that the child have unsupervised contact with the father and for that relationship to develop naturally unhampered by artificial and unnecessary restriction.
Apart from general expressions of concern, there is no evidence before me that the concern of the mother is reasonable or rationally based.
To the extent that it may be suggested by Mr Gould that it matters not whether there is a rational basis for that concern and that I should take it into account anyway, then I am inclined to favour the view expressed by Mr Watkins, Counsel for the father and supported by the solicitor for the Independent Children’s Lawyer, that the Court and the child cannot be held hostage to such an assertion particularly where there is no evidence or factual basis to support it.
The certificate of the mother’s gynaecologist does not link her current condition to any matter relevant to this case and the mother’s affidavit does not attempt to link it. Why it was the subject of evidence at all, apart from to explain the mother’s non-attendance at Court or her disregard of its Orders, is somewhat of a mystery but it certainly is not relevant in my view to whether or not I should grant a stay.
It was submitted by Mr Gould that to continue supervision only made the child’s present circumstances, in the event a stay was granted, less than ideal.
My decision found that the best interests of the child were not served by the situation that previously existed, and significantly not served, so that I made orders requiring changes to that situation in order that the child’s best interests might be served. I reject the view therefore espoused by Mr Gould.
Mr Gould points out that were the conditional stay that his client would accede to be made, no harm would occur to the child. I have considered the authorities on the difference between the concepts of less than ideal and in the child’s best interests and I have come to the conclusion the orders I made were important for the proper development of this child’s relationship with her father at an important stage in her life.
My findings in this matter are that the child’s best interests are served by allowing her to continue to develop in an unrestricted way her relationship with her father free from the artificiality of supervision.
I believe that that condition which is not, upon a consideration of the evidence before me required, should be removed to allow that relationship to be given full effect and to afford the father and the child the flexibility in making arrangements to share experiences and bond which do not depend on the goodwill of others.
There is no demonstrable reason in my view why unsupervised time spent with the child should not take place.
There have been a number of authorities to which my attention has been directed. However, I think that the case of K and B (2006) FLC ¶93-288, a decision of the Full Court, is most instructive. Those Full Court authorities that have followed it have echoed its reasoning.
The power I have is a discretionary one. The general principle is that a litigant is entitled to the benefit of his judgment and it seems to me that in cases involving third parties which are designed to operate to their benefit the third party is entitled to the benefit of the judgment.
In K and B their Honours observed as follows:
“21.The principle relating to the prima facie position of the correctness of a judgment regularly obtained is not in doubt. This principle is especially apposite in commercial or financial cases (see Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220). The principle, whilst persuasive, is not always applicable to cases involving children. In this case the mother asserts if her appeal is upheld, and a Full Court re-exercises the discretion to make the orders she seeks, namely that she have sole parental responsibility for the child and that there are no orders for the child to spend time with the father, then absent a stay her appeal will be rendered nugatory.
22.It is clear from his Honour’s reasons for making the substantive orders that he carefully considered such a possibility, and rejected a position that there should be no contact (now referred to in the Act as “spends time with”) with the father. We are not in a position on this appeal, with limited material before us, to accurately assess the likelihood of the substantive appeal succeeding. We have regard to the fact that the trial Judge had the advantage of hearing all the evidence, and seeing the parties in reaching his conclusions and considerable weight must be afforded to his views in these circumstances.”
Their Honours in K and B went on to consider the case of EJK and TSL [2006] FamCA 730, which dealt with an application to permanently stay parenting proceedings of a case involving forum non conveniens:
“19.…
‘74.We have already referred to the provisions in the Act relative to the granting of a stay, and the case law which supports the exercise by the Court, in an appropriate case, to grant a stay pursuant to its inherent power. We accept that such inherent power is to be distinguished from the exercise of jurisdiction under a particular provision of Part VII. We accept as correct the reasoning in B v B (Re Jurisdiction) (supra) that a stay cannot be categorised as a parenting order as defined in the Act. It follows, therefore, that if some or all matters involving children are not in a special category, if it is appropriate for a Court, pursuant to its inherent power to grant a stay, then the best interests principle is not the paramount consideration, although the best interests of a child may, in a particular factual situation, be highly relevant or deserving of the greatest weight in considering whether the Court is a clearly inappropriate forum.’
20.In dealing with a subsequent stay application in the same case (EJK and TSL (No 2) [2006] FamCA 806) the Court noted the relevant principles to be applied:
‘16.It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:
“In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.”
17.Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (“the Act”) was subject to “the best interests test”, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:
“In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.”’”
I made a determination of what serves the best interests of this child. I think it is important that the child have the benefit of that decision and the benefit of the arrangements which serve that interest.
The change for the child in this matter is that she will spend unsupervised time overnight with a father who has successfully spent 173 supervised periods of contact with the child without complaint and who has by three professional psychiatrists been found to be well able to care for his child and in a good relationship with her.
There is, in my view, neither acceptable evidence that unsupervised time with the child will afford any danger to her, nor any risk of any danger to her, and in my view such lack of supervision will serve her short and long term interests.
It is noteworthy that the mother concedes at the outset that it is not the overnight time so much that she is concerned about but rather the question of supervision. Nothing in the authorities or the evidence leads me to the conclusion that this is not a proper matter for the stay to be refused and I order accordingly.
In her application, the mother also sought a stay of Order 20 of my Orders made 12 August 2008, namely, that the mother is to retain a non-family member as the child’s treating doctor or other medical practitioner or provider. No argument was put to me on that issue.
I order that the determination of the costs of this application be reserved pending the determination of the appeal. The matter of costs may be re-listed by arrangement with my Associate, 14 days after the determination of the Appeal.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 3 September 2008
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