FAMILY COURT OF AUSTRALIA
| BRENNAN & SHAW (STAY APPEAL) | [2008] FamCAFC 138 |
| FAMILY LAW - APPEAL AGAINST DISMISSAL OF APPLICATION FOR STAY – FINAL PARENTING ORDERS – CHANGE TO UNSUPERVISED TIME WITH FATHER – Where mother appealed trial Judge’s dismissal of her application for a stay of final parenting orders (“the substantive orders”) pending appeal – Where appeal against the substantive orders had been expedited – Whether refusal to grant stay rendered nugatory the mother’s appeal against the substantive orders – Where mother asserted father had ‘some unspecified mental disorder or disease’ – Where single expert found no evidence of risk to child if time between father and child not supervised – Where mother could not point to any evidence that there was a risk of harm – Where trial Judge found child’s best interests were not served by current arrangement – No appealable error in the exercise of discretion by the trial Judge – Appeal dismissed. FAMILY LAW - COSTS – Where applicant mother unsuccessful – Costs of this application reserved to the hearing of the appeal against the substantive orders – Leave to relist before the Full Court in the event that the appeal against the substantive orders does not proceed. |
| Evidence Act 1995 (Cth) – s 135 Family Law Act 1975 (Cth) Family Law Reform Act 1995 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| Clemett and Clemett (1981) FLC 91-013 EJK and TSL (2006) FLC 93-287 EJK and TSL (No 2) (2006) 35 Fam LR 590 EJK and TSL (No 4) [2006] FamCA 1022 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 House v King (1936) 55 CLR 499 K and B (2006) FLC 93-288 M v M (1988) 166 CLR 69; (1988) FLC 91-979 |
| APPELLANT: | Ms Brennan |
| RESPONDENT: | Mr Shaw |
| FILE NUMBER: | SYF | 3250 | of | 2006 |
| APPEAL NUMBER: | EA | 102 | of | 2008 |
| DATE DELIVERED: | 12 September 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Boland & Stevenson JJ |
| HEARING DATE: | 9 September 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 September 2008 |
| LOWER COURT MNC: | [2008] FamCA 744 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Gould |
| SOLICITOR FOR THE APPELLANT: | R A Bayliss & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Watkins |
Orders made 9 september 2008
That the appeal be dismissed.
That the respondent father’s costs be reserved to the Full Court determining the substantive appeal (EA 97 of 2008).
That, in the event that the substantive appeal does not proceed to determination, there be liberty to re-list the matter before the Full Court on the question of the respondent father’s costs of this appeal.
IT IS NOTED that publication of this judgment under the pseudonym Brennan & Shaw (Stay Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 102 of 2008
File Number: SYF 3250 of 2006
| Ms Brennan |
Appellant
And
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- Case
- [2008] FamCAFC 138
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge had erred in refusing to grant the stay of the final parenting orders and whether the refusal to grant the stay rendered nugatory the mother's appeal against the substantive orders. The mother contended that the trial judge had failed to adequately consider the risk of harm to the child if the stay was not granted, and that the child's best interests would be served by supervised contact with the father. The court needed to determine if the trial judge's exercise of discretion in refusing the stay was subject to appealable error.
The Full Court found that the mother's grounds of appeal were without merit and that the trial judge's decision to refuse the stay was a sound exercise of discretion. The court held that the mother had not provided any evidence to support her claim that the father posed a risk to the child. Furthermore, the expert evidence presented indicated that there was no risk to the child if the time spent with the father was unsupervised. The Full Court also found that the trial judge had appropriately considered the authorities and the child's best interests in reaching his decision. Consequently, the appeal was dismissed, and the costs of the application were reserved to the hearing of the appeal against the substantive orders. Leave was granted to relist the matter before the Full Court if the appeal against the substantive orders did not proceed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The grounds of appeal as set out in the Notice of Appeal filed 5 September 2008 are as follows:1.That the trial judge erred in refusing to grant a stay of the operation of orders not requiring supervision in circumstances where the child is aged 2 1/2 years, and at the time of trial had not spent any time unsupervised with the father, and had not spent any period overnight away from her mother or maternal grandmother.2.That the trial judge erred in failing to find that the child’s arrangements if the stay were granted would be “satisfactory” as referred to in the authorities.3.That the trial judge erred in not appropriately considering the proposed application for expedition of the appeal which, if successful, would indicate that the period required for the stay be relatively short.4.That the trial judge failed to properly take into account authorities such as Sampson and Hartnett [2007] Fam CA 732, to which his Honour was taken, wherein an expedited appeal in a children’s matter was heard within weeks of the stay application being dealt with.5.That the trial judge erred in failing to properly take into the [sic] account the conditions proposed by the Appellant, namely that the child spend time with the father as ordered by his Honour, but on a supervised basis, that an application for expedition of the appeal be prosecuted with diligence, and that the Appellant be prepared to prosecute the appeal anywhere in Australia and as otherwise ordered by the Court.6.That the trial judge erred in failing to give adequate reasons for refusing the stay in circumstances where under the proposal of the Appellant, the child would see her father as ordered by his Honour in the company of the father’s relatives. Most likely the paternal grandmother who lives in the same house.7.That the trial judge erred in misdirecting himself as he did in respect of the strength of the Appellant's Grounds of Appeal. In paragraph 26 of the Judgment, his Honour found that, “I do not believe the appeal on the basis has merit.”, referring to “risk to the child”.8.That the trial judge erred in placing excessive weight on the need for a third party (here, the child) to take the “benefit of the judgment”. This is an appeal from a discretionary judgment. The limits on interference by an appellate court with such a judgment are well established in the authorities (see House v King (1936) 55 CLR 499; Gronow v Gronow (1979)144 CLR 513; (1979) FLC 90-716.) The principles to be applied in determining an application for a stay of orders are also well known. In EJK & TSL (No 4) [2006] FamCA 1022 the Full Court, on hearing a second stay appeal in the same matter, referred to the relevant principles to be applied in determining such an application. Their Honours said: 16.As in the first stay appeal, neither party put in issue the correct principles as set out in the authorities to be applied in respect of a stay. The relevant authorities and the applicable principles and arguments of counsel in respect of those authorities were clearly identified by the trial Judge in his reasons delivered on 2 October 2006 including the decision of the High Court in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; De Lewinski v Director-General New South Wales Department of Community Services and Anor (1996) 70 ALJR 532; (1996) FLC 92-678; Clemett and Clemett (1981) FLC 91-013; Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 and Sanders and Sanders (1976) FLC 90-078.17.We consider it is helpful to our discussion (as did the Full Court in the first stay appeal) to repeat the relevant principles applicable to a stay in a parenting case as discussed in Clemett (supra). 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.