Budd and Horne and Anor (No.2)

[2015] FCCA 2270

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUDD & HORNE & ANOR (No.2) [2015] FCCA 2270

Catchwords:
FAMILY LAW – Stay – Application for stay pending determination of substantive parenting appeal – where Appeal and Cross Appeal filed – consideration of the bona fides of the Applicants for the stay – whether the Appeal would be rendered nugatory if a stay is not granted – whether Applicants have an arguable case – where Appeal and Cross-Appeal listed for hearing in a month’s time – best interests of the child – desirability of limiting the frequency of any change to the child’s living arrangements.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Budd & Horne & Anor [2015] FCCA 1576

Applicant: MR BUDD

Respondents: MS HORNE & MS WATSON

File Number: SYC 2891 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 August 2015

Date of Last Submission: 17 August 2015

Delivered at: Sydney

Delivered on: 19 August 2015

REPRESENTATION

Solicitor for the Applicant: Mr Price

Solicitors for the Applicant: Price & Company

Counsel for the Respondents: Mr Wong

Solicitors for the Respondents: Tiyce & Lawyers

Independent Children's Lawyer: Ms Webber

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

1. Orders 3, 4 and 5 of the Orders made on 11 June 2015 are stayed pending the determination of the Appeal by the Respondents filed on 2 July 2015 and the Cross-Appeal filed by the Applicant on 23 July 2015.

IT IS NOTED that publication of this judgment under the pseudonym Budd & Horne & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2891 of 2013

MR BUDD

Applicant

And

MS HORNE & MS WATSON

Respondents

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application for a stay of interim parenting Orders made on 11 June 2015. The stay is sought until the hearing of the Applicants’ Appeal against the decision of the Court made on 11 June 2015. The hearing of the Appeal has been expedited and is scheduled for Friday, 18 September, just under a month away.

2. The Applicants are the Respondents to the substantive application. In their Application in a Case filed on 5 August 2015 the Applicants seek the following order:

   The order 3, 4, 5 of Orders dated 11 June 2015 be stayed.

3. The Application is supported by an affidavit by the Respondents’ solicitor, Mr Tiyce, of 6 August 2015.

4. The Application is opposed by the substantive Applicant. He is overseas but his solicitor, Mr Price, has sworn an affidavit which was filed in Court on the morning of the hearing, 17 August.

5. The Application for a Stay is supported by the Independent Children’s Lawyer, Ms Webber.   

The Orders sought to be stayed

1. On 11 June 2015 I made interim parenting orders relating to the child X, who was born (omitted) 2011. The substantive Applicant, Mr Budd, is X’s biological father. The child was born by means of an IVF procedure. The substantive Respondents, Ms Horne and Ms Watson, are partners and the child’s birth certificate shows their names as the child’s mothers.

2. The Applicant is seeking to spend time with the child on a regular basis and claims that the Respondents have stopped him from doing so. He claims that they reneged on an agreement reached at the time the child was conceived.

3. On 11 June 2015, after an interim hearing that took place in 2014, I made these Orders until further order, which are the subject of both an Appeal and Cross-Appeal:

   (3)     The child X is to spend time with the Applicant as follows:

   (a)     On the first Sunday in March, June, September and December in each year between the hours of 10:00 am and 12:00 noon;

   (b)     for a period of two (2) hours on the child’s birthday; and

   (c) On such other occasions as the parties shall agree.

   (4)     The Applicant and the First Respondents are to agree on a venue in close proximity to the residence of the Respondents for the Applicant’s time with the child to take place and if the parties fail to agree on a venue then the Respondents will nominate a venue.

   (5)     In the event that the child becomes distressed during the Applicant’s time with him and is unable to be comforted by either of the Respondents then the Respondents are at liberty to terminate the Applicant’s time with the child on that occasion.

4. The substantive Respondents appealed on 2 July 2015, seeking an order that there be no Order for the subject child to spend time with the Applicant pending further Order.

5. The grounds of Appeal are:

   1.  Having regard to the medical evidence available and before the Court the exercise of discretion by the Court in providing for supervised time between the child and the donor miscarried in that the Court failed to give any or sufficient weight to the impact on the Second Respondent mother, Ms Watson of the impact of the Orders for the child to spend time with the Applicant.

   2.  That having regard to the time between the hearing date being 3 February 2014 and the judgment date being 11 June 2015 that the court ignored or failed to give sufficient weight to the time between the last occasion the child spent time with the Applicant and the date of judgment, being some 16 months after the date of the last submission which submissions occurred some   12 months after the last time the child saw the Applicant and after establishing that there was no evidence of any relationship between the child and the Applicant.

   3.  Having determined the child had no relationship with the Applicant and that Section 60CC(2)(a) did not apply, there are insufficient reasons to establish why an order for “identification contact” was made.  

6. The Applicant Mr Budd filed his Notice of Appeal on 23 July 2015. He seeks the following Orders:

   1.  That the Appellants’ Appeal be dismissed.

   2.  That the Cross-Appeal be allowed.

   3.  That the matter be transferred to the Family Court for an urgent interim hearing for the purposes of facilitating time between the Child and the Cross-Appellant on a substantial and meaningful basis.

   4.  Such other order as this Honourable Court of Appeal deems fit.

7. The grounds for the Cross-Appeal are:

   1.  The Court erred in that it failed to provide Reasons, or proper Reasons, for its Judgment.

   2.  The Court erred in failing to take into consideration that Dr R’s evidence that Ms Watson stated that the child’s “care would be jeopardised if he doesn’t have the father”.

   3.  The Court erred in failing to take into consideration the unchallenged evidence of Dr R that Ms Watson has “resentment and anger towards Mr Budd as not being a major part of the child’s life”.

   4.  The Court erred in failing to take into account the unchallenged evidence that the Applicant was a significant part of the child’s life from his date of birth to the beginning of 2013.

   5.  The Court erred in failing to ensure that the proceedings were resolved in a just and timely manner, in that the Applicant’s urgent interim application to spend time with the child was filed in May 2013, adjourned by the Court on a number of occasions until February 2014, until Judgment not being delivered until 11 June 2015.

   6.  The Court erred in failing to act in the best interests of the child by taking over 2 years to determine an interim application including 16 months from the date of the interim hearing to date of interim judgment.

   7.  The Court erred in making “identification contact” orders only in circumstances where no reasons were given for such determination. 

Submissions

1. The Independent Children’s Lawyer, Ms Webber, supports the application for a stay and adopted the submissions by Mr Wong of Counsel for Ms Horne and Ms Watson.

2. Mr Wong of Counsel, for the Respondents, submitted that the first day for Mr Budd to spend time with the child is 6 September, only 12 days before the expedited Appeals. He submitted that it was in the child’s best interests for the stay to be granted, noting the length of time since the Applicant and child last saw each other. He submitted that it was significant that the Court had provided insufficient reasons for an order for identity contact or for more substantial contact.

3. It was also submitted that the Respondents (i.e. the applicants for the stay) were bona fide in bringing their application for a stay and it was in the child’s best interests that changes in the child’s life should be limited.

4. Mr Price for the Applicant submitted that his client, too, was bona fide. He sought to rely on a report by Dr R dated 12 June 2013 which was the subject of an objection by Counsel for the Respondents as not having been tendered in the original hearing. I believe that the objection is well-founded.

5. Mr Price submitted that the Respondents had provided no compelling reasons for a stay. The Respondents, he noted, did not seek expedition of the hearing of the Appeals.

6. Further, he submitted, the time set on 6 September for the applicant to spend time with the child was only two hours and there would be little or no prejudice if the stay were not to be granted.

The law to be applied

1. To my mind, with respect, a helpful guide for trial judges dealing with applications for a stay pending the determination of an appeal against parenting orders can be found in the decision of the Full Court of the Family Court in Aldridge & Keaton (Stay Appeal)[1]. The decision contains in paragraph [18] a useful set of principles to be considered, including (relevantly):

   [1] [2009] FamCAFC 106

   a)The onus to establish a proper basis for a stay is on the applicant for the stay;

   b)A person who has obtained a judgment is entitled to the benefit of that judgment;

   c)A person who has obtained a judgment is entitled to presume the judgment is correct;

   d)The mere filing of an appeal is insufficient to grant a stay;

   e)A weighing of the risk that an appeal will be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   f)Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   g)The desirability of limiting the frequency of any change in a child’s living arrangements;

   h)The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and

   i)The best interests of the child are a significant consideration.

2. This is not an exhaustive list but encapsulates the matters I consider to be relevant in this case.

Conclusions

1. To my mind, there are three important considerations:

   a)whether there is a risk that one or other of the appeals will be rendered nugatory if a stay were not to be granted;

   b)the strength of the proposed appeals; and

   c)the period of time in which the appeals are to be heard.

2. As Mr Wong submitted, there is a considerable similarity in the grounds of appeal and cross-appeal. However, the parties seek diametrically opposed outcomes, so the best that can be said is that there is a mutuality of dissatisfaction. Certainly, neither party will be arguing strenuously in favour of the existing orders.

3. There does not appear to me to be a significant risk of either appeal being rendered nugatory if a stay were not to be granted. One reason for this is the short period of time that will elapse until the appeals are to be heard, as I am informed that they are listed for hearing on 18 September, less than a month away.

4. The existing Orders, which are very conservative, only provide for identification contact. If the Orders are not stayed, Mr Budd would spend only two hours with the child, on Father’s Day, between now and the date of the appeal hearing. Similarly, if the Orders are to be stayed, that is the only time to be lost, which is not significant to the child in the context of his not having seen Mr Budd since January 2013.

5. I accept, however, that it is much more significant to Mr Budd and he will no doubt be disappointed not to see X on Father’s Day.

6. The best interests of the child are a significant consideration, however, it could be argued that making an arrangement whereby the child actually spends time with Mr Budd is making a change in the child’s living arrangements, which have been unilaterally brought about by Ms Horne and Ms Watson, although the change is relatively minor, it would appear to me.

7. On balance, weighing up the various competing considerations, whilst I acknowledge that there is a likelihood that Mr Budd will be frustrated and disappointed at not seeing X before the hearing of the appeal and cross-appeal, I propose to grant the stay.            

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 21 August 2015