Carpenter and Carpenter

[2013] FamCA 58

FAMILY COURT OF AUSTRALIA

CARPENTER & CARPENTER [2013] FamCA 58

FAMILY LAW – PRACTICE AND PROCEDURE - STAY – where the mother has filed a Notice of Appeal against final parenting orders – where the mother filed an Application in a Case seeking a stay of those final orders pending the outcome of the appeal – where, in the alternative, the mother sought a stay of the orders regarding the parties’ youngest child and an order preventing the father from altering the older children’s schools –  whether the stay or alternative orders sought by the mother should be granted – whether the appeal has reasonable prospects of success – where there appear to be limited prospects of success of the appeal – application for stay dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Clemett & Clemett (1982) FLC 91-013
JRN & IEG (1998) 72 ALJR 1329
K & B (2006) 37 Fam LR 1

APPLICANT: Ms Carpenter

RESPONDENT: Mr Carpenter

INDEPENDENT CHILDREN’S LAWYER: Ms Stewart

FILE NUMBER: BRC 3510 of 2011

DATE DELIVERED: 5 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 5 February 2013

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITOR FOR THE RESPONDENT: Damien Greer Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stewart of Stewart Family Law

Orders

IT IS ORDERED THAT

1. The Application in a Case filed by the mother on 29 January 2013 is dismissed.

2. The oral application for costs by the Respondent and the Independent Children's Lawyer is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carpenter & Carpenter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3510 of 2011

Ms Carpenter

Applicant

And

Mr Carpenter

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 29 November 2012, I made orders and handed down reasons for judgment in respect of a parenting trial that had taken place over six days before me, concluding on 30 August 2012.  The mother has appealed those orders by a Notice of Appeal, filed 21 December 2012. That Notice of Appeal contains 21 grounds, which will be referred to in more detail later in these reasons.

2. On 29 January 2013, the mother applied for a stay of those orders.  The orders made by me at the end of the trial, expressed in broad terms, effected a significant change in the living arrangements for the three children the subject of the proceedings, B, D and E. In broad compass those orders provided for the children to live with the father.  After a short moratorium, provided for the reasons outlined in my judgment, the mother was to spend time with the children over the school holiday period, with substantial time, commencing from first term this year.

3. The orders and the reasons recognised that E had different needs to the other two children, primarily as a result of his age.  He was born in March 2010 and was about 2½ at the time that the orders were made.  The orders also provided for the father to have sole parental responsibility in respect of all major long term issues, but after a process of discussion, provided for in the orders and explained in the reasons.

4. The current application has some difficulties attached to it, which I will refer to in a moment. 

5. It is first necessary to observe that the application is heard in circumstances where there will be some considerable delay occasioned by the volume of work confronting the Full Court of this court.  There is a directions hearing to be held in respect of the appeal on 11 March. With the consent of all parties I advised the court during the course of the proceedings and placed on the record that inquiries of the Appeals Registrar for the northern region, indicated that, on the assumption that all parties complied in every respect with the directions to be made on 11 March and otherwise did all that was necessary so as to prepare the appeal in accordance with the timeframes set out, a “best case scenario” would see the appeal being heard in November, but only if a matter currently listed to those sittings fell out of the list.  A more likely scenario, according to the Appeals Registrar was that the appeal would be heard in February 2014.

6. If account is taken of the well-known protocol for the delivery of judgments (three months) the result of the appeal would not be known, in all likelihood then, until about May 2014.

7. Mr Page SC, who appears on behalf of the respondent, submits, and it seems to me that it could not realistically be challenged, that when reference is made to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172 the degree of conflict about a miscellany of issues between these two parties, a retrial in the event of a successful appeal would be, effectively, inevitable.

8. My experience as the case management judge in this registry for more than three years would tend to suggest that if judgment by the Full Court was delivered in May 2014, it would be highly unlikely that a retrial would be heard prior to about November 2014, noting, of course, that one cannot predict the future or what might happen to the list with any degree of certainty. There is, then, a considerable period, likely to be in the region of two years, between the handing down of my orders and the reasons for judgment and the re‑hearing of any trial consequent upon the appeal being successful. 

9. That timeframe is a significant matter in respect of the current application.

10. I referred a little earlier to the difficulties inherent in the current application.  In terms, the application seeks a stay.  However, the application and the affidavit, which I hasten to say was prepared by the mother on her own account, was expanded upon by the mother in the proceedings before me.  The mother also represents herself in today’s proceedings. It was not clear to me, upon reading the application, its supporting affidavit and, later, the written submissions which the mother helpfully prepared for today’s proceedings, what precisely was the nature of the order sought by her. 

11. On one reading the application for stay might be regarded as what could be described as a “conditional stay,” pertaining only to the issue of parental responsibility. That interpretation derives from the fact that much of the material refers directly to the issue of the father having changed the older two children’s school and what the mother says are consequent difficulties for her in facilitating the time contemplated by the orders. 

12. Greater complication is added to her application, though, when, as the mother made clear orally, she seeks an order that the father live within 30 kilometres of the school and not move to any residence greater than that distance from the children’s school. In addition, the mother seeks a “complete stay” of the orders with respect to E. 

13. The issues arising from an application expressed in those terms are many.  First, the court does not have the power to make an order that the parents be required to live mandatorily at any place. The court plainly, of course, has the power to order that the children live at a specified place or within a specified range of places, but the only means by which that could realistically occur would be if the orders made for both parental responsibility and “live with” and “time” were altered significantly.  That would tend to suggest that the mother seeks a stay of all of the orders if she persists, as she indicated she wished to, with an (amended) order requiring the children (as distinct from the father) to live within 30 kilometres of the school.

14. In contrast to that, if one is to see the application as being an application for stay of the orders relating to parental responsibility, but containing a separate order with respect to E, different issues arise, because that result is an issue not agitated at any time by the mother during the trial.

15. The effect of the orders, as expressed by the mother, leaving aside for a moment the issue of the proposed restraint in respect of the place where the children reside, would represent a significant change to the parenting orders made by me after a trial.  The effect of those orders as outlined by the mother was that the orders for “live with” and “time” relating to B and D would remain, but the order in respect of E would alter to accord with orders made by Coates FM in November 2011.

16. Those orders would see the father having time with E after kindergarten from Wednesday to before Kindergarten on Thursday and each alternate Saturday, as postulated by the mother, between 9 am Saturday and 9 am Sunday.  The mother made it clear that it was intended that the alternate weeks would occur, in a sequence such that the children spent time together. However, the effect of the orders sought by her, if they were to occur in that manner, is that all three children would go from having the 14 nights each fortnight with each other that they currently enjoy, to seven.  Similarly, E would move from having five nights per fortnight with his mother to having nine nights per fortnight with his mother.  I repeat that no order was ever agitated by the mother, during the course of the trial or in the lead up to it that would see the siblings separated.

17. The outline of those difficulties, with respect to the application, might be seen to lend weight to an argument made by Mr Page on behalf of the respondent father, that, when the grounds of appeal are looked at more closely, they effectively amount to a desire on the part of the mother to “re-run the issues run at trial, with some modifications”.

18. Understandably enough, the mother did not appreciate the complexities of the issues involved in an application in the terms sought by her.  It seems to me that the fairest way to approach her application is to approach it in the alternative. First, I should deal with it on the basis that, as it is necessary to effect the orders sought by her, it is an application to stay all of the orders such that the orders which pertained pre-orders would apply until the appeal was heard and determined.  At the same time I ought consider, effectively as an alternative order, a stay necessary to effect orders whose terms would see the older two children remaining with their father, in accordance with the orders made by me, E returning to her care in the manner she suggests and with some stay of the orders for parental responsibility. 

19. The Notice of Appeal contains, as I have said, some 21 grounds.  Before dealing with those grounds in more detail, I first refer to the principles applicable generally to a stay pending appeal.

20. The principles applicable to stay have been referred to in a number of earlier decisions of this Court.  The most well known, referred to both by the mother and by Mr Page, is the decision of the Full Court in Clemett & Clemett (1982) FLC 91-013. That case referred to a number of matters, principally referrable to the general law, which were held to properly inform the discretion as to whether or not to grant a stay. It was held in that case by Nygh J that:

    Whilst we agree with the considerations as set out by Watson SJ in Carlin & Carlin (1977) FLC 90-320, we must stress that the most important of them is the one listed by him as the first:  “the rights of children”.  This must outweigh any presumption which might apply in non-custody matters that a party is entitled to “the fruits of the litigation”.

    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.  In this case, we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be, and has, in fact, been, expedited within a reasonable time and that the child is properly looked after by the father.

21. I should observe, that it is not contended here, nor as it seems to me on the material could it be contended on behalf of the father, that the appeal is anything other than bona fide.  It is not suggested – and on the material before me could not reasonably be suggested – that the appeal by the mother is brought purely for the purposes of delay or as some form of tactic.  It is, in my view, clear that the mother brings the appeal genuinely as a means of challenging the decision which I reached.

22. In contrast to what was said in Clemett, however, it cannot, in my view, be said, unfortunately, and not through any fault of the parties, that the appeal can be heard within a reasonable time.  I have already outlined earlier in these reasons the length of time likely to be inherent in the process until such time as the case can be reheard in the event of a successful appeal. 

23. Although the decision in Clemett is now more than 25 years old, the same principles, and in particular, the prominent emphasis on the best interests of children, have been reinforced by later decisions.  It is, I think, necessary to refer in the context of this application to only two.

24. The first in time is the decision of Kirby J in JRN & IEG (1998) 72 ALJR 1329, which was a parenting case in which an application for special leave was made to the High Court. Kirby J said:

    …the principles which govern the determination of stays in this Court are not in doubt.  They are stated in Jennings Construction Limited & Burgundy Royale Investments Proprietary Limited (1) (1986) 161 CLR 681 … in Bryant & Commonwealth Bank of Australia (1996) 134 ALR 460 at 464.   I drew attention … to the fact that different considerations may apply in respect of the operation of the criminal law or in respect of laws designed to protect the public.  In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court, and in particular, children, whose welfare must always be borne in – who must always be in the mind of the Court in making an order affecting their interests.

25. The Full Court of this Court said, following that decision in K & B (2006) 37 FamLR 1 at [24]:

    There is no dispute in this case that the appeal is based on substantial grounds that it is brought bona fide and is not a mere delaying tactic, that the expedition of the appeal is sought and it can be dealt within a reasonable period of time in the circumstances.  The question of the circumstances of the child at the time the orders were made required careful and weighty consideration.

26. I agree, with great respect, that the “circumstances of the children” in this case require “careful and weighty consideration”. However, that crucial consideration must be seen in the light of findings made by me after a six-day trial and what I attempted to make an exhaustive examination of the evidence. 

27. The reference to the principle that the appeal ought not be rendered nugatory referred to in some of the earlier cases is always, of course, an important consideration, but within the terms of those authorities to which I have just made reference.  I also have that principle in mind in determining the issues in this case.

28. Against that background, it is, I think, important to outline some of the findings made by me in the Reasons for Judgment handed down by me which are the subject of reference in the grounds of appeal. 

29. Mr Page referred specifically to four paragraphs [54], [189]-[191].  It is, I think, important to quote here what was said in three:

    54.An additional aspect of parental capacity is the capacity of each parent to cope emotionally with the orders to be made.  If orders consistent with the mother’s position are made, I consider they are likely to have a very significant impact upon the father; his relationship with his children will be abrogated or very significantly curtailed.  I do not underestimate the impact that will have on him or his capacity to provide for the needs of the children. But, equally, if orders to that effect are made, the impact on the children of any such reduced capacity will be minimal by reason of the minimal opportunities for interaction.

    190.Among other things, I was struck by the mother’s statement during cross-examination that she “…still [doesn’t] have any person who has assessed my children and given me a clear, logical, evidenced decision.”  The statement was made not only after reading the reports of [Mr M] and [Mr C], but also after hearing the evidence of [Detective T] and, in particular, [Ms G].  When asked what more the Department, the Police, [Mr M] or [Mr C] could have done to satisfy the mother, she responded “I expected I would get answers” for what the children are saying and allegedly doing.  Consistent with my earlier findings, I think the mother’s answer is, in fact, disingenuous. She did get answers, but they were not the answers she desired or which were consistent with her beliefs. They have, as a result, been rejected in favour of a picture of the father as a sexually perverse and malign influence on the children.

    191.The impression I have clearly gained from the whole of the evidence, and my impression of the mother and her witnesses, is that allegations against the father are likely to continue. I think there is a real prospect they will expand; [B’s] allegations have expanded over time and there are now suggestions of sexually improper behaviour toward [D] and [E], the latter of whom is but 2½ years old.

30. In addition to those paragraphs specifically referred to by Mr Page in argument, I consider it important in the resolution of this application to also make reference to paragraphs [176] and [179] of my reasons:

    176.I find that the father does not present an unacceptable risk to the children if orders are made that the children spend time, including overnight time, with him, or if they live with him.

    179.In a similar vein, I place little reliance upon the evidence of the mother as to her observations of the children’s demeanour, in particular in so far as assertions as to demeanour accompany allegations of what the children have said about behaviour said to be improper.

31. The affidavit material filed in support of this application contains a plethora of allegations and counter allegations.  In short, the nature, type and extent of the conflict evident in that affidavit material is entirely as I predicted was likely to be the case in my Reasons for Judgment.  The fact that this conflict continues to exist cannot be anything other than harmful to the children. 

32. I said in my reasons, and repeat here, that I consider that stability for the children is fundamentally important to their best interests and I see no reason to change that view.  I also consider it important to quote a further paragraph from my Reasons which, again, has real resonance for the issues to be decided in this application:

    200.Time with the mother brings with it, on my findings, the prospect of further emotional abuse of the type described and the prospect of further allegations. But, if the children spend the majority of their time with their father (and his partner and their children) their opportunity to experience for themselves their father and to develop their own views of, and relationship with, him is facilitated. Further, in my view, it is facilitated in a manner not otherwise available if orders are made for “weekend time” with him.

1. An application for stay requires a trial judge (before whom the Family Law Rules 2004 prescribe the application should be heard) to be in the invidious position of arriving at, at least a prima facie view, about the prospects of the success of an appeal against the judgment which has been written.  It is, of course, axiomatic that in doing so, the judge is not in the position of deciding that which the Full Court will for themselves decide.  It is for the judge to decide, in broad terms, whether the appeal, as pleaded, has merit, such that that circumstance can be weighed in the balance against the other matters earlier referred to.

2. The grounds of appeal as pleaded have some importance in this application and should be quoted in full:

   1.His Honour erred in taking the direct evidence from the child at its lowest;

   2.His Honour erred by not applying the Briginshaw standard to the father’s case of coaching the children against the mother;

   3.His Honour erred in not putting any weight on the mother’s reasons for believing the statements by the child;

   4.His Honour erred by erroneously relying on “inexact proofs, indefinite testimony, or indirect inferences” in relation to the case against the mother;

   5.His Honour erred by relying on equivocal evidence in the case against the mother;

   6.His Honour erred in placing no weight whatsoever on the father’s lack of disclosure in respect to the medical records directly relevant to the allegations of child sexual abuse and place no weight on the father’s admission in his actions when he took a photograph of his 3½ year old son’s erect penis;

   7.His Honour erred in relying on reports by experts that were not specialised in child sexual abuse;

   8.His Honour erred in applying Division 12A, specifically section 69ZT, to the proceedings at hand;

   9.His Honour erred in relying on the observations by the non-expert [Mr M];

   10.His Honour erred in relying on the observations by the non-expert [Mr C];

   11.His Honour erred by erroneously applying excessive weight to the evidence from the Child Welfare Officer given his own description that the Department is “overworked, underpaid and under-resourced”;

   12.His Honour erred against procedural fairness when he precluded the mother’s counsel from cross examining the Department of Child Safety and their approach to this case;

   13.His Honour erred in not distinguishing the facts of the case from Donaghey and Donaghey [2011] FamCA 13 at paragraph 44, where he stated that “This case possesses characteristics that are remarkably common in so many cases of this type that come before this court”;

   14.His Honour erred in making findings of fact in relation to the allegation of child sexual abuse where there was no expert in child sexual abuse to assist the court in understanding the evidence;

   15.His Honour erred by stating that he was the expert in relation to the interpretation of the evidence regarding child sexual abuse;

   16.His Honour erred in referring to Freud’s psychiatric literature in relation to the proceedings at hand during the trial;

   17.His Honour erred by approaching the case from the outset from a position of actual bias;

   18.His Honour erred by approaching a posture towards the mother’s case where he showed apprehended bias;

   19.His Honour ‘descended into the arena’ in respect to the cross examination of the father and his new girlfriend;

   20.His Honour erred in relying on the presence of the father’s new girlfriend when the court has replaced the children’s mother;

   21.His Honour erred in stating that he was not under any duty to make findings in relation the allegations of child sexual abuse.

3. It is submitted on behalf of the father and by the Independent Children’s Lawyer that the appeal has limited prospects of success. 

4. In referring to the grounds of appeal and the prospects of success, I again give due recognition to the fact that, on their face, the grounds have been prepared by the mother representing herself.  That said, the mother says in her written outline of argument that “I have and continue to seek legal advice from a variety of legal professionals for the appeal.”

5. In respect of the specific grounds of appeal, I make the following observations. 

6. First, a number of the grounds of appeal cannot, in my respectful view, be said to be grounds of appeal at all.  An example is ground 20, which provides that “His Honour erred in relying on the presence of the father’s new girlfriend when the court has replaced the children’s mother.”

7. Mr Page submits, I think correctly, that many of the grounds refer only to weight, and the significant difficulties, in a case where the central allegations turn very much on the judge’s assessment of the evidence of the witnesses are well known, and did not assist the prospects of success of the appeal.  As examples, grounds 1, 2, 3, 4, 5, and 6 all refer to weight, and, in doing so, do not descend into particularity.  An example is ground 5, which asserts “His Honour erred by relying on equivocal evidence in the case against the mother.”

8. The basis of other grounds are not immediately apparent to me, nor is it apparent to me how they could succeed. For example, ground 8 provides “His Honour erred in applying Division 12A, especially section 69ZT, to the proceedings at hand.” Again, no particulars are provided of how it is said that I erred in the application of that Division and/or that particular section. I note that the provisions are mandatory, including, for example, the mandatory duties incumbent upon a court, provided by section 69ZN of Family Law Act 1975 (Cth) (“the Act”). Furthermore, section 69ZT was not raised during the course of the trial, nor were submissions made in respect of it. So too, the provisions of Division 12A were not referred to by the mother’s counsel during the course of the trial, and it was not suggested that Division 12A ought not apply in any specific respect.

9. Mr Page submits, I think, again, correctly, that many of the grounds can be seen as merely a “rerun” of the case run at trial, and specifically, allegations canvassed at that trial.  I agree with that submission.

10. Grounds 17 and 18 allege, respectively, that I erred by “approaching the case from the outset from a position of actual bias” and “approaching a posture towards the mother’s case where he showed apprehended bias”.  As is well known, considerable difficulty attends the case for appellants in alleging actual bias and all the more so where no particulars whatsoever are provided of that assertion and where, most importantly of all, the issue has not been raised with the trial judge during the course of the trial.  There were no allegations made of actual bias – or, indeed, apprehended bias – during the course of the trial. At no stage during the course of the trial was an application made for me to recuse myself or were there issues raised in respect of that issue at that time. 

11. In my view the appeal, within the context of the application being decided by me at this time, cannot be seen to enjoy good prospects of success. 

12. That is an important matter referable to the interests of the children because I am concerned to keep changes for them to an absolute minimum.  I have already referred to the effect of the potential changes inherent in what the mother proposes if she was successful in obtaining the orders which she seeks in this application.

13. Secondly and importantly, as reference to the trial Reasons will plainly reveal, I was alive to, and predicted, significant difficulties for the children in what I predicted would be a difficult and somewhat traumatic change for them when they came into their father’s care pursuant to my orders.  That was very much in my mind when I made the orders that I made and I canvassed that issue in the reasons.  Nothing which has been deposed to by either party persuades me that anything has occurred other than what might reasonably have been predicted at the time and was the subject of general comment in the reasons.

14. Thirdly, I have already referred to the fact that no case was ever mounted by the mother that E should be separated from his siblings.  E’s position as a very young child and the youngest of the three children was very much in my mind in the orders that I made, as reference to the reasons plainly reveals.  The reasons addressed issues specific to E and gave what I hope was careful consideration to what I considered to be the very difficult time that he was likely to confront by the orders.  Again, nothing that I have read in any of the material filed by either of the parties in this application causes me any surprise or falls outside the ambit of what was already anticipated in those reasons.

15. I referred in the reasons to what I considered to be the important need for stability.  I see no reason to change that position and I am concerned to limit the number of changes that the children experience for that reason.  The children have already experienced significant upset and change in respect of the transfer into their father’s care in accordance with my orders. 

16. In circumstances where there is likely to be a lengthy period until the appeal is heard and determined and a retrial heard, and having looked carefully at the grounds of appeal and attempted to assess their prospects of success on a prima facie basis, I do not consider it in the best interests of the children to change their care back into their mother’s care, in light of what they have already undergone as a result of my orders.

17. If, at the end of the time frame to which reference has been made, a Full Court determines that the appeal should succeed, the children would return, even on the mother’s case, to an environment with which they are well familiar and which was their primary nurturing environment, on my findings, prior to the orders that I made.  I consider that such a prospect is less difficult for them to deal with than the opposite to which I have just referred.  I refer in that respect to a particular finding which is not the subject of specific challenge in any ground of appeal contained at paragraph 189 of the reasons.

    Those findings, however, sit with other findings about the behaviour of the mother and, in particular, a finding that her actions have been emotionally abusive of the children.  Recognition must be given to the fact that proceedings involving serious allegations in respect of children create feelings and reactions in parents that may well abate over time to the benefit of their children.  That is all the more so where, as in my view is the case with the mother here, a party has been influenced by others in their beliefs and actions. Evidence giving cause for optimism of a change in the beliefs of the mother about the risk posed by the father, and her attitude toward the children’s relationship with their father, might in turn give cause for optimism that the emotional abuse of the children might cease.  The evidence in this case earlier discussed points, in my view, to the opposite conclusion.

18. Again, nothing that I have read in the material filed on behalf of each of the parties changes my view and the pessimism inherent in it.  Indeed, all that I have read merely seeks to reinforce the findings made at that paragraph and elsewhere within the reasons. 

19. For all of those reasons, I am not persuaded that a stay should be granted, the effect of which would be to return to the orders pertaining prior to the orders made by me. 

20. The application by the mother, insofar as it seeks a change in the orders for time and live with, or otherwise seeks the results to which I’ve just referred, will be dismissed.

21. Dealing with the issue of whether there can be, as it were, a partial stay with respect to the order for parental responsibility and in that respect, an order fashioned with respect to the schooling of the children, reference should be made to paragraphs 17 and 18 of the mother’s written outline of argument.  They provide:

    17.As stated in your Honour’s reasons for judgment at paragraph 198:
    “No issues regarding the practical difficulty of the parties spending time with the children were raised during the proceedings (s 60CC (3)(e)).

    18.In fact, in his affidavit sworn 9 March 2012 and used at trial in August of the same year the father himself stated at paragraph 28 & 29; 245 & 246:
    28-29 – “[AA] School and [Suburb BB] School are both established and familiar environments for the children.  It is my intention that they continue at those schools”.

    245-246 – “the children school in [Suburb BB] and [Suburb CC] are located between home and work.  I do not intend to move schools as they present a familiar environment for the children children [sic], including many of their friends.”  “I intend to move to the [Suburb BB] area in the next few months…”

22. The mother then refers to her “understanding” that the father has changed his position in that respect, due to “people at [Suburb BB]” being told that “he is a paedophile”.  The genesis of that assertion is a little unclear.  Reference was made by the mother to specific passages in the affidavits filed both by the father and his partner, Ms R.

23. Those passages are certainly redolent of the issue of change of school being discussed.  The only passage I can see that has reference to the last-mentioned matter referred to by the mother is that which occurs on page 5 of the father’s affidavit, under the heading Item 23.  The last sentence of the third paragraph under that item provides, in respect of the change of school:

    One of the key issues in my mind was the future impact on [B] and [D] if they stayed at [Suburb BB School], given [the mother] has spread the false allegations she has made against me to teachers and parents at that school.

    I do not have, and have not since the trial had, the benefit of a transcript.  My recollection of the trial, now some six months or so ago, is that that issue was canvassed during oral evidence and cross-examination. 

24. The resolution of that issue, however, does not seem to me to be appropriately the subject of an application for stay.  The application for stay, insofar as it might be reframed so as to express a stay of the order for parental responsibility, at least in part, does not relate to any error that I can see alleged in any ground of appeal. 

25. Rather, as the mother effectively conceded herself when questioned by me, her case seems to be this:  the father deposed to a set of circumstances and intentions to which the paragraphs earlier quoted will relate.  He asserts that those circumstances have changed.  I (the mother) assert that the premise upon which the orders were made by me at trial has, as a result, significantly altered, and as a result there should be orders with respect to parental responsibility insofar as they relate specifically to decisions about schooling should be reviewed and changed.

26. I am content that that is an accurate assessment of the mother’s position with respect to that particular issue.  That being the case, and given that I can see no material filed by her which relate that issue to errors that are subject of the appeal, I am led to the conclusion that any such application can not be seen as an application for stay but rather an application for variation of a parenting order. In respect of any such application, both parties should be heard appropriately and pursuant to an appropriate application and an appropriate response. It is not, in my view, a proper basis to grant a stay of the order (which would in any event need to be reframed by or on behalf of the mother) partially staying the order for sole parental responsibility. 

27. Thus, to the extent that the mother’s application can seen as an application for a partial or conditional stay relating to that issue, in my view, too, it should also be dismissed.

28. I order accordingly.

29. The father makes an application for costs of and incidental to this Application in a Case. 

30. As is well known, the general rule specified in s 171 of the Act is that each party bears his or her own costs. The court has a wide discretion to grant costs, and in considering that discretion, is instructed by the Act to have regard to a number of specified factors.

31. There is no direct evidence before me on this application of the financial circumstances of each of the parties. I recognise that responding to this application has resulted in the father incurring costs.  The mother represents herself, and there is no evidence before me that she has otherwise incurred any costs in bringing the application.

32. There is no direct evidence of the financial circumstances of each of the parties before me, but it seems to me I can take account, at least in a broad sense, of the respective financial circumstances of each of the parties, as was evident on the material before me at the trial.  To that extent, the father was engaged effectively in his own business from home;  the mother was effectively a full-time parent. There is, then, at least sufficient evidentiary foundation relevant to the exercise of a broad discretion for me to find, I think, that there is a significant disparity in the respective financial circumstances of the parties. 

33. I should say that, leaving aside the independent children’s lawyer of course, neither of the parties, as will be obvious from what I have said, are in receipt of legal assistance.

34. The second matter to be considered is what is described in the Act as the conduct of the parties, including in respect of the matters specified in subparagraph (c). It is, again, not suggested, nor could be suggested, that there is any lack of bona fides in the bringing of the application by the mother. What is said is that the nature of the grounds of appeal which have been the subject of comment in these reasons, the requirements with respect to stay, and in particular the Rules (Rule 22), that the filing of a Notice of Appeal does not operate as a stay, mean that, the mother ought to have been on notice before bringing the application whereby the father incurs costs.

35. It is not suggested, at least for the purposes of this application, that the proceedings were necessitated by the failure to comply with orders.

36. It might be said, properly, that the mother has been wholly unsuccessful in relation to these instant proceedings, in that her application has been dismissed. 

37. Understandably enough, the Court has not been made aware of any offer in writing filed by either of the parties to settle the proceedings; by the nature of these proceedings it is unlikely that such an offer would have been made.

38. The Court is permitted, as I say, to take account of other factors within the context of a broad discretion.  I made comment during the course of the proceedings before me this morning that these applications, and particularly applications in the circumstances of this case can be properly seen as technical.  I take account of the fact that allegations of this type engender strong feelings and belief systems, and it seems to me that that is a significant matter in terms of the pursuit of litigation that might otherwise be seen as unreasonable.

39. Taking all of the circumstances into account, it seems to me that each party should bear their own costs.

40. I order accordingly.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 5 February 2013.

Associate: 

Date:  13 February 2013