CALLAHAN & CALLAHAN

[2013] FCCA 2347

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALLAHAN & CALLAHAN [2013] FCCA 2347

Catchwords:
FAMILY LAW – Children – Recovery Order – application for stay – consideration of the principles to be considered with an application for a stay – whether a recovery order should issue – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.67Q, 67V

Cases cited:
Aldridge & Keaton [2009] FamCAFC 106

Applicant: MS CALLAHAN

Respondent: MR CALLAHAN

File Number: SYC 1855 of 2012

Judgment of: Judge Scarlett

Hearing date: 24 December 2013

Date of Last Submission: 24 December 2013

Delivered at: Sydney

Delivered on: 24 December 2013

REPRESENTATION

Counsel for the Applicant: Mr Sperling

Solicitors for the Applicant: Southern Waters Legal

The Respondent: In person

Counsel for the Independent Children's Lawyer: Ms Weber

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

ORDERS

1. Order 2 made on 20 December 2013 is to continue.

2. The Respondent Father is to remove himself forthwith from the city blocks bounded by (omitted), (omitted), (omitted) and (omitted), Sydney and remain away until 2:00pm.

3. A Recovery Order under section 67Q of the Family Law Act 1975 is to issue for the child X born (omitted) 2005

4. The Marshal, the Deputy Marshal, all officers of the Australian Federal Police and all officers of the State and Territory Police Forces of Australia are authorised and directed with such assistance as they require and if necessary by force to:

   (a)Stop and search any vehicle, vessel or aircraft and search premises or places for the purpose of finding the child X;

   (b)Recover the child X;

   (c)Deliver the child X to the Applicant mother;

   (d)Arrest, without warrant, the Respondent father in the event that the Respondent removes or takes possession of the child X.

5. The Respondent is prohibited from removing or taking possession of the child X in contravention of the Orders made on 17 December 2013.

6. The Recovery Order referred to in the immediately preceding Order is to issue but lie in office until further Order by a Judge of this Court on the application of the Applicant or the Independent Children’s Lawyer.

7. Liberty to apply on one (1) hour’s notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1855 of 2012

MS CALLAHAN

Applicant

And

MR CALLAHAN

Respondent

REASONS FOR JUDGMENT

Application

1. There is before the Court an application for a stay of the Orders that were made on 17^th December. The application is contained in an affidavit sworn by the Father today in which he describes the considerable difficulty which he has undergone in attempting to persuade the child X to comply with the Orders of the Court made on 17^th December. He describes trauma and stress on the child’s part, severe distress on the part of the child, who has been described as not at all comfortable being in the care of his mother, severely distressed for the fact that he will no longer be seeing his father or brothers.

2. X is described as having been emotional and distraught and crying, and refusing to get into his father’s car on 23^rd December. Since 17^th December, the matter has been back before the Court on Friday 20^th December and again today. On the 20^th I refused an application for a stay. I made directions about a handover to take place. I declined to issue a recovery order in the circumstances. The handover did not take place due to acting out behaviour on the part of X. There has been an Application brought today by the Mother seeking a recovery order.

3. It was not known at the time that the Father would be successful in bringing the child to Court today.

Application for a Stay

1. The Father does, however, seek a stay of the Orders of the 17^th  December. The application for the stay is opposed by Counsel for the Applicant Mother and by the Independent Children’s Lawyer. Counsel for the Mother, Mr Sperling, has referred the Court to the decision, a well-known authority, of Aldridge & Keaton (Stay Appeal)[1]. It is a decision of the Full Court of the Family Court by her Honour the Chief Justice and Boland and Crisford JJ, and it relates to an application for a stay and the refusal of that application for a stay made by the Chief Federal Magistrate, as his Honour then was.

   [1] [2009] FamCAFC 106

2. In that decision, as Mr Sperling has pointed out, the Full Court set out the relevant principles at paragraph 18 of the decision, including:

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

   b)However, it is not necessary to for the applicant to demonstrate any special or exceptional circumstances;

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

   d)A person who has obtained a judgment is entitled to presume that judgment is correct;

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

   f)The bona fides of the applicant will be considered;

   g)A stay may be granted on terms that are fair to all parties; this may involve a Court weighing the balance of convenience and the competing rights of the parties;

   h)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;

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

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

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

   l)The best interests of the child the subject of the proceedings are a significant consideration.[2]

   [2] Aldridge & Keaton [2009] FamCAFC 106 at [18]

3. Those are the principles referred to by their Honours in the Full Court. There is no appeal at this stage, but one has been foreshadowed early in the New Year. It is a significant point, as Mr Sperling has pointed out, that if the stay is granted, the decision of the Court on 17^th December, which was arrived at after four days of hearing and a consideration of a considerable amount of evidence, would be rendered nugatory or almost useless.

4. It is a matter of concern that a number of events seem to have occurred quite recently, and I have expressed concern about matters referred to in paragraphs [18] through to [21] of the father’s affidavit of 19^th December. In particular, the fact that due to missed days at school the Department of Education applied in November of this year to the Children’s Court for a compulsory schooling order, which is now in place. It is a matter of, I think, general knowledge that compulsory schooling orders are not made lightly; they are not frequently sought by the Department of Education. My own knowledge of the Children’s Court of New South Wales is that such orders are not made lightly. That is a matter of concern.

5. It is a matter of concern that this child is acting out. The Father said that he is only acting out in certain circumstances because of the position that he has been put in, in respect of the current and previous orders, and has pointed to the fact that X’s elder brother Y, who has been in the Father’s care for some time, is performing well at school and well in sporting activities. Y is apparently not acting out in this way. It is significant that the Father has been able to persuade X to attend Court today. I have no doubt that that was achieved not without some difficulty.

6. The stay is sought so that X can attend counselling with a Dr M. The Mother was not aware of this taking place, although, once she is apprised of the circumstances, I think whether she would wish to continue is not a matter that I need to pursue today. If there is an appeal, then obviously that is a matter that would be considered once a Notice of Appeal has been filed and can be considered, but, basically, the concern is that if the stay is granted, the Orders made by the Court after four days of hearing would be almost useless. This is not a case where the Court is going to conduct an internal appeal against its own decision.

7. The decision was not arrived at lightly. The application for a stay is refused.

Conclusions

1. I am conscious of the fact that the Father has brought the child to Court, albeit late, but there are reasons set out in his affidavit why these difficulties have occurred. I do not underestimate those for a moment. Nevertheless, the situation requires that I do make Orders.

2. I have already expressed my views about the draconian nature of recovery orders and the requirement in the Family Law Act 1975 (Cth) under section 67V that the child’s best interests must be the paramount consideration in making a recovery order.

Recovery Order

1. It is for that reason that I do not propose to issue an order immediately as circumstances do not warrant it, and I do not want an order to be issued that can be activated by one party without a check or balance occurring, depending on the circumstances. In my view, a decision that the Order should issue must be made by a Judge.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  24 January 2014