Bryant and Stapleton (No. 2) - [2008] FamCA 745

FAMILY COURT OF AUSTRALIA

BRYANT & STAPLETON (NO. 2)

[2008] FamCA 745

FAMILY LAW – ORDERS – Stay

Family Law Act 1975 (Cth)

APPLICANT:

Mr Bryant

RESPONDENT:

Ms Stapleton

FILE NUMBER:

MLC

553

2007

DATE DELIVERED:

26 August 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

26 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Oomen

SOLICITOR FOR THE RESPONDENT:

Jeremy Harper & Associates

Orders

That the father’s application in his Amended Application filed 19 August 2008, including his application to stay orders made by me on 19 June 2008 shall be and is hereby dismissed.
That the father shall pay the mother’s costs of this application fixed at $1,500 to be paid as follows:
(a)$500 on 26 September 2008;
(b)$500 on 27 October 2008; and
(c)$500 on 26 November 2008.
That a transcript of my reasons for judgment given this day shall be prepared with priority and placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 553 of 2007

MR BRYANT

Applicant

And

MS STAPLETON

Respondent

REASONS FOR JUDGMENT

The parties’ child is aged five. I heard this case about parenting arrangements for her, over five days from 11 to 17 June 2008. I gave reasons for judgment on 18 June and I made final orders on 19 June 2008. The upshot of the orders was that the child would continue to live with her mother, and would continue to spend substantial and significant time with her father, although not in the equal shared regime that he sought, and in a configuration that was different from the existing interim orders.
On 17 July, the father filed a Notice of Appeal against my decision.
On 31 July he filed an Application in a Case, seeking a stay of my orders of 19 June; a stay of order 3 of interim orders made in the Federal Magistrates Court on 24 June 2006 that restricted his communication with the mother; that order 3 of my orders relating to special occasion time with his daughter be added to the Federal Magistrates Court interim orders; and, that in school holidays, the child spend half of her time with each parent. His application was supported by an affidavit, also filed on 31 July 2008.
The matter came before me on 11 August 2008. The Independent Children's Lawyer was in court, coincidentally. No-one else was present because the documents had not yet been served, so I adjourned the case until today.
On 19 August 2008, the father filed an amended application in a case, seeking a stay only of the orders in paragraphs 2, 4 and 10 of my final orders made on 19 June. Paragraph 2 dealt with the regime of time he would spend with his daughter. Paragraph 4 dealt with my order for a Family Consultant to supervise orders. Paragraph 10 dealt with the manner of communication between the parents about their daughter, which I limited to email or SMS communication. He also sought a stay of the communication restriction in the interim orders. He sought that the holidays be split equally between the parents, and some changes to the interim orders in relation to the time spent with his daughter.
The application was supported by an affidavit filed on 19 August 2008. The father served the mother with the relevant documents just a few days ago. I have given leave today for her solicitor to file a response on her behalf, together with the affidavit that was sworn on 21 August 2008.
The mother seeks that all applications, including the appeal, be dismissed. I have made it clear that it is not up to me to dismiss the appeal. I can however deal with the stay application. She wants it dismissed. She is also seeking costs. She had an alternative application for security for costs, but has sought to adjourn that to a date before Mushin J when apparently, his Honour is dealing with another application in this case.
In her supporting material, the mother says that the current arrangements have been in place for nine weeks and the child is coping well. I have given leave to the father to file a reply affidavit today in which he says the child has not coped and he wants leave to apply for costs arising from the trial.
Just dealing with that last point, to put it to one side. I do not propose granting leave for him to apply for costs, long after the event, without notice, and with nothing to substantiate his claim. It seems to me to be an application without merit and it would be entirely unfair and unreasonable at this late stage to permit it.
At the time of the hearing, the child spent two or three weekends with her father as well as each Thursday. Otherwise, she lived with her mother. The father sought 50/50 shared care. The mother sought sole parental responsibility, and that the child spend Friday to Monday with her father on alternate weekends, half of school holidays, and on special occasions.
The ICL supported the shared parental responsibility, and orders that would provide for the child to live with her mother, and spend up to five nights of fourteen with her father.
I framed orders for the time until the child starts school in 2009, and for a new regime after that. The thrust of the orders for this year is that in a two‑week cycle, the child will be with her father from 9 am Friday until 9 am Tuesday in one week and from 1.30 pm Thursday to 5 pm Friday in the other week, that is five of fourteen nights, and then weekabout in the long holidays at the end of this year.
Once school starts, the regime provides for after school Friday to the start of school Tuesday in one week, and from after school Thursday to the start of school Friday in the other week, and for half of school holidays.
Rule 22 of the Family Law Rules deals with the stay of an order pending appeal. The filing of a Notice of Appeal does not automatically stay the enforcement of the order appealed from. A specific order is required to that effect. The authorities are clear that there should be special circumstances, in particular, that a successful litigant should not be deprived of the fruits of the litigation without good cause.
In children's cases, the traditional reference to the “fruits of the litigation” is not the best form of expression. In any event, I must consider this application, as with any application in relation to children, with the child's best interests as a paramount consideration. (See the case of EJK v TSL No. 2 (2006) 35 FLR 590.)
I also need to consider, as most apposite in this case, the grounds and merits of the appeal, and then whether there is a real risk that to deny a stay will render a successful appeal nugatory.
As to the grounds of the appeal, there are 42, some with subgrounds, each very detailed. Doing the best that I can to summarise, the father seems to assert that I erred in many or most of my findings and the weight that I have attached to them. As the trial Judge, I do not and cannot defend my decision beyond the detailed reasons that I have given in more than 42 pages as to how I assessed and weighed the evidence in arising at my discretionary judgment.
I note that this a case in which, before my decision, which is now the subject of the appeal, the father was spending substantial time with his daughter. That continues as the thrust of my decision, despite a different configuration, one which he did not urge, and with which I understand he is unhappy.
It is important to note that the orders I made were similar to those urged by the ICL, and compatible with the ultimate view expressed by the Family Report writer, although he had previously expressed different views.
This is not a situation in which but for a stay, the child would suddenly have no further contact with one of her parents, or would endure the upheaval of a change of residence, or be moved away from one parent. To the contrary, she had the involvement of both parents in her life before my decision. She has that now. She will have that, whatever the Full Court's ultimate view on appeal. Her interests would demand a stay if the effect of a refusal would, for example, mean the interim termination of a relationship with one of her parents, but that is not the case.
There is a conflict in the affidavit material as to how the child is coping with the current orders. The mother says she is coping perfectly well, even though this was not the configuration that the mother herself had sought, she having wanted the time with the father considerably reduced. The father says she is not coping at all well. The conflicting versions do not surprise me. However, it is not something that I can resolve in this forum. I can observe that I am surprised at the prospect that the child is suffering as the father suggests, when she is still seeing, as she should be, a great deal of her father.
I note that the advice is that the appeal is likely to be heard in the early part of 2008. Inquiries in the Registry suggest around February and that seems to accord with what the father has been told, that there will be about a six-month delay. No delay in any case is ideal, but in the circumstances of this case, the period of delay in my view does not have any major impact on a child who is still spending a considerable amount of time with each of her parents.
Turning to the aspect as to how the parents are permitted to communicate. The order in that respect was arrived at by me after considering the weight of the evidence about the parents' relationship, and their capacity for communication. It does not leave them without the means to communicate about the child. It simply restricts them so that they do not communicate face to face or by telephone. I am satisfied, on the detailed evidence as to the communication history between the parties, that is an order that can properly stand in the child's interests until the appeal is heard.
Otherwise, the father argues that any supervision of the order should be by Dr K, and not by a Family Consultant. That was not something that was argued before me and I do not propose staying the order in that regard.
In the circumstances, I do not propose granting the stay or the other orders sought by the father. The child’s time with her father can continue in the configuration that I have ordered and in the configuration that it has been occurring over the past weeks. The parents' methods of communication can continue in the manner that I have ordered. In due course, the Full court can consider the detail of my reasons for judgment, and determine if, in exercising my discretion, I was in error.

DISCUSSION

The mother has sought costs in relation to the father's stay application. Section 117 of the Family Law Act covers the question of costs. I have been through those provisions carefully with the father, who is here representing himself today.
Section 117(1) provides that each party to proceedings shall bear his or her own costs, subject to the exercise of the Court's discretion, taking into account a range of factors.
It is irrefutable that the father has been wholly unsuccessful in the stay application that has brought the mother to court today. Whilst he has not incurred legal fees in being here, the mother has done so.
It is said for her that she is in receipt of legal aid. I am satisfied that is the case, by virtue of a letter that was handed up on her behalf. It is dated 12 August 2008, from Victoria Legal Aid, to Jeremy Harper and Associates, solicitors in Ballarat, setting out the grant and terms of the grant of legal aid to the mother.
The father argues that the mother is not in fact in receipt of legal assistance. Were that the case, I would be even more concerned for her. In any event, I am concerned because VLA does impose a cap. Not only has there been a lengthy trial in this case, but there is now an appeal pending for which she is obviously requiring legal representation. It is important for her that legal fees are not needlessly incurred. I am concerned too that legal fees incurred by VLA are secured by way of an equitable charge on her property and accordingly it is a very difficult imposition on her to have been brought back to court by the father for this application.
So far as each party's financial position is concerned, the mother says she works only six hours a week and accordingly has a very limited income. The father says that is not the case. It is hard for me to get to the bottom of that, but I can see that the Child Support Assessment that was made on 28 July 2008, according to a document attached to the father's reply, which shows the mother's total taxable income at $19,500. It has the father’s taxable income at nearly $23,000. He was a little vague in responding to me today as to his precise income. He says that he receives about $540 per fortnight from a grant. On his answers, it was hard for me to determine whether that was the full extent of his income.
I am satisfied that the mother should be granted costs of opposing this application which has failed.

DISCUSSION re: amount of costs

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: