C & C (No.2)
[2003] FMCAfam 81
•5 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C (No. 2) | [2003] FMCAfam 81 |
| FAMILY LAW – Children – interim residence – stay of order pending appeal – discussion of relevant principles – can the court stay an order made pursuant to s.68(F)(2) and s.65E leaving in situ parenting arrangements inconsistent with prior findings as to the child’s best interests – context and duration of orders relevant factors – stay ordered pending appeal. |
Family Law Act1975, ss.65E; 68F(2)
Re: Evelyn (No. 2) (1998) FLC 92-817 – applied
De Lewinski v Director General, NSW Department of Community Services (1996) FLC 92-678 – referred to
Carlin and Carlin (1977) FLC 90-320 at 76,696 – discussed
Clemett and Clemett (1981) FLC 91-013 – discussed
Elder [2000] FamCA 1527 – applied
| Applicant: | L J C |
| Respondent: | M L C |
| File No: | PAM187 of 2003 |
| Delivered on: | 5 February 2003 |
| Delivered at: | Parramatta (by videolink from Wollongong) |
| Hearing Date: | 5 February 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor advocate for the Applicant: | Ms J Vincent |
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Mr P Georgiadis |
| Solicitors for the Respondent: | Georgiadis & Baker |
ORDERS
That the operation of orders 1, 2 and 3 made 3 February 2003 is stayed pending the determination of the husband’s appeal filed 4 February 2003.
PENDING THE DETERMINATION OF THE HUSBAND’S APPEAL
That (“the child”) T E C born 15 November 1994 live with the wife.
That T have contact with the husband as follows:
(a)Each alternate weekend from 4.00 pm Friday to 4.00 pm Sunday commencing 7 February 2003.
(b)For one half of each school holiday period being the second half in years ending in an even number and the first half in years ending in an odd number.
That R A C born 13 June live with the husband.
That R have contact with the wife as follows:
(a)Each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday commencing 14 February 2003.
(b)For one half of each school holiday period being the first half in years ending in an even number and the second half in years ending in an odd number.
School holidays start at 10.00 am on the Saturday immediately after school has finished and conclude at 2.00 pm on the day before the children return to school.
That the husband shall collect the child/children from the wife’s home at the commencement of contact AND the wife shall collect the child/children from the husband’s home at the conclusion of contact.
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 187 of 2003
| L J C |
Applicant
And
| M L C |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
The applications
This is an application that the court grant a stay of interim parenting orders made on 3 February 2003. These relevant parenting orders are set out below:
IT IS ORDERED PENDING FURTHER ORDER:
1.That (“the children”) T E C born 15 November 1994 and R A C born 13 June 1996 live with the mother.
2.That the children have contact with the father as follows:
(a) Each weekend from 4.00 pm Friday to 4.00 pm Sunday.
(b) For one half of each school holiday period being the first half in years ending in an even number and the second half in years ending in an odd number. School holidays start at 10.00 am on the Saturday immediately after school has finished and conclude at 2.00 pm on the day before the children return to school.
(c) That the father shall collect the children from the mother’s home at the commencement of contact AND the mother shall collect the children from the father’s home at the conclusion of contact.
M C (“the husband”) applied on 17 January 2003 that he have interim residence of the parties' two children, T E born 15 November 1994 and R A born 13 June 1996. L C (“the wife”) opposed the orders he sought and on 3 January 2003 filed a response in which she sought interim residence of the two children. I heard the competing interim residence applications on 31 January 2003 and delivered my decision on 3 February 2003.
On 4 February 2003, the husband filed by facsimile transmission a notice of appeal challenging the 3 February 2003 orders. On the same day he also applied for a stay of the interim orders. The wife opposes the grant of a stay pending the determination of the father' s appeal.
The children’s present circumstances
The parties separated on 16 December 2002. Since then S and T have been living with the wife at K. This is the children's maternal grandparent's home. T will start school at B Public School and when the wife is at work will be cared for by her maternal grandparents.
R has remained with the husband in the former matrimonial home. His father has re-enrolled him at T Christian School, the school he has attended continuously since he started kindergarten in 2001. Because he works shift work R will stay at his paternal grandmothers home on the nights before the husband starts work at 6.00 a.m. Because the husband works five days a week this means R will be substantially cared for by someone other than a parent, albeit a close relative, who has previously provided substantial care.
Principles applicable to a stay of a parenting order pending appeal
In Re Evelyn (No. 2) (1998) FLC 92-817 the Full Court of the Family Court discussed the principles applicable on the hearing of a stay application that relates to the parenting orders. The Full Court said:
It is clear from the decision of Gummow J in De Lewinski v Director General, NSW Department of Community Services (1996) FLC 92-678 that the principles enunciated by Brennan J in Burgundy Royale must be applied in a child related matter which involves the Hague Convention relating to international child abduction, where an application for special leave to appeal to the High Court.
However there would appear to be nothing in De Lewinski to suggest that the principles which have previously been applied in this court in relation to applications for a stay pending an appeal to the Full Court, in a child related matter and in which matter the interests or welfare of the subject child are the paramount consideration, do not remain good law. We would, with respect, suggest that given that De Lewinski involved the refusal by the Full Court of this court to stay orders requiring children to be sent abroad pursuant to the provisions of the Hague Convention relating to child abduction, Gummow J was in that case solely concerned with what can be described as the preservation of the subject matter of the litigation. In any event the best interests principle has no application in cases concerning the Hague Convention relating to child abduction.
We turn first to the authorities in this court relating to the grant or refusal of a stay in proceedings in which the child’s best interests are to be considered as the paramount consideration, and where, as in the present case, no question arises about the removal of a child from Australia. In Carlin and Carlin (1977) FLC 90-320, at 76,696, Watson J said:
“Without in any way fettering discretion it seems to me that I should in this case consider:
(a)The rights of the children (see sec. 43);
(b)The delays as to appeal;
(c)Whether refusal of a stay renders a successful appeal nugatory;
(d)The hardship to the successful respondent in comparison to the hardship of the appellant;
(e)The grounds of appeal.”
In Clemett and Clemett (1981) FLC 91-013 Nygh J said (at 76,175):
“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”.
It will be observed that there are some differences in the above statements in that Watson J considered the rights (or welfare) of the child to be but one matter to be considered, while Nygh J considered that matter to be the paramount consideration. Further the question must arise as to the status to be given to the interests of the child (where relevant) in any application of the Burgundy Royal principles. In relation to all these issues it could well be argued that the grant, or refusal, of a stay of any order which comes within the definition of “parenting order” in Part VII of the Family Law Act 1975 would itself be a parenting order, and thus in its making, the best interests of the chid would have to be the paramount consideration by virtue of s65E of the Family Law Act 1975.
It may well be, however, that the possible conflicts in the authorities and legislative provisions, to which we have just referred, are more theoretical than real, in that in many cases the result achieved on an application of the paramountcy of the best interests principle (as stated by Nygh J in Clemett) would be exactly the same as the result achieved on an application of the Burgundy Royale principle or of the not dissimilar principles enunciated by Watson J in Carlin. Certainly in the present case we consider that the result would be the same whether the Clemett or Carlin or Burgundy Royale test is applied, and thus it is unnecessary for us in this case to attempt any further reconciliation of the authorities.
Recently, the Full Court in Elder [2000] FamCA 1527 delivered
30 December 2000 refused to stay a final residence order pending an appeal. The court referred to Clemett as the relevant authority governing the issue of the grant of a stay pending an appeal in matters relating to children. Thus I am satisfied that my decision to grant or refuse a stay must ensure that T and R's welfare is the paramount consideration.
Submissions
Mr Georgiadis submitted, in essence, that as I had recently made parenting orders which I was satisfied were in the children's best interests, I could not, a mere two days later make orders the effect of which is inconsistent with my earlier determination.
The gravamen of Ms Vincent’s submission is that the test of a child's best interests on a stay application incorporates particular considerations relevant to the context of the hearing, namely,
·the stay is intended to operate for a limited period, and
·frequency of changes in the child's living arrangements should be avoided.
It follows that although the court previously determined that a different living arrangement better promoted the children's best interests, provided that the current arrangements are satisfactory the status quo should be preserved. Satisfactory in the sense referred to by Nygh J in Clemett is different to an adjudication of relevant s.68F(2) factors. It means that the child or children are not left in a situation where they are at risk of physical, sexual, psychological or emotional harm and that their basic needs are met and able to continue to be met during the interregnum pending the determination of the appeal.
I am satisfied that that reflects the operative law. Otherwise if Mr Georgiadis is correct a court could never stay a parenting order made, as s.65E and s.68F(2) require it to be made, predicated upon a finding that any such order is in the child's best interests. As Penny J said in Elder at first instance, that was "one of those rare (my emphasis) occasions I believe where the status quo should be disturbed pending the determination of the appeal." Importantly in Re Evelyn (No 2) the Full Court makes it clear that a stay can be ordered inconsistent with a prior parenting order. This is the course it took when it stayed the operation of the trial judge’s residence order made in favour of the respondent to the appeal.
Hence I am satisfied that I can stay the operation of the interim orders I made on 3 February 2003. If the stay is granted both parties agree that the children should remain where they are presently living and that contact occur each weekend so that the children are together at least two days in each seven. Unfortunately this will mean that S only sees her brother, and he her, two days in 14. That is because there is no suggestion that the husband wants to have contact to S at the same time he is having contact to T.
Conclusion
Three pivotal factors require careful consideration. Firstly, separation of the siblings and their half-sister. Secondly, the adequacy of the care arrangements currently made for R. Thirdly, changing R's environment, which would mean that he leaves his father, home, school and friends to live in a new home and start at a new school pending the appeal. Mr Georgiadis emphasised that the children have already been separated from each other for six weeks. The parties have refused to allow contact conjointly; in essence the children have been held hostage, one for the other. Mr Georgiadis submits that this increases the urgency that the children be reunited. I agree. This urgency must be balanced against the potential disruption to R if he moves to the Central Coast and then returns to his father's care in the event that the husband’s appeal is successful.
In the context of a Full Court hearing in about eight weeks, even taking into account the six weeks that has lapsed, changing R's home and school pending the appeal is potentially more disruptive than continuing the current situation whereby the children are separated.
I have found the outcome most finally balanced. Although I am not satisfied that refusing the stay would render the appeal nugatory I am satisfied that the effect on the children, particularly R, if it is refused and later the appeal is allowed, flies in the face of my obligation to limit the frequency of changes in custodial arrangements.
Mr Georgiadis criticised the adequacy of the notice of appeal. I am not satisfied that his criticism is warranted. The appellant has proceeded diligently and the notice of appeal has been prepared prior to the delivery of written reasons. I accept that it is likely to be amended once the written reasons are available. I am satisfied that the appeal is not a delaying tactic and is to be argued on substantive grounds.
I intend to grant the stay. It is my understanding that appeals from a Federal Magistrate in this region are routinely disposed of within eight weeks or sooner. If for any reason the wife and those advising her are concerned that the appeal will not be heard within that timeframe they have the opportunity to apply to the Full Court that the hearing be expedited. Given the nature of the appeal such an application would have reasonable prospects of success if it were unable to have an eight week listing. Hence the period of time during which the stay will be operative may well not even be eight weeks.
I am satisfied that this stay should be granted and that I should make orders reflecting the current living arrangements subject only to ensuring that the children have contact with each other every weekend.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 20 March 2003
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