Cole and Pearce

[2010] FamCA 42

FAMILY COURT OF AUSTRALIA

COLE & PEARCE [2010] FamCA 42

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Adjournment

Family Law Act 1975 (Cth)

Sanders and Sanders (1976) 26 FLR 474

APPLICANT: Ms Cole

RESPONDENT: Mr Pearce

FILE NUMBER: MLC 13158 of 2007

DATE DELIVERED: 20 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 January 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Whitelaw

SOLICITOR FOR THE RESPONDENT: Stella Stuthridge & Associates

Orders

1. That the application of the mother filed 5 January 2010 be adjourned to a date to be fixed to be heard before the Honourable Justice Dessau for a hearing relating to a stay of the orders made in September 2009 pending an appeal.

2. That the reasons for judgment this day be transcribed and be placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13158 of 2007

MS COLE

Applicant

And

MR PEARCE

Respondent

REASONS FOR JUDGMENT

1. I am dealing with an application in the duty list filed by Ms Cole on 5 January 2010, notwithstanding the registry stamp says 5 January 2009.  The application is solely directed to a stay of the orders made on 7 September 2009, pending the determination of a dispute by the Full Court.  The only reason I am dealing with the matter today is because of the absence of Dessau J, who is on leave and has been on leave for some weeks.  Under the rules, a stay application should go to the judge who made the orders but if that judge is unavailable, then some other judge may hear the matter, hence the matter was listed before me today.

2. The application was supported by an affidavit.  In discussion with the parties, I have made it abundantly clear that there is nowhere near sufficient information to enable a stay application to succeed.  I do not necessarily want to be critical of a lawyer who acts on a pro bono basis but Ms Cole has told me this morning from the bar table that the affidavit was authored by her pro bono lawyer.  In six paragraphs, only two of the paragraphs are directed to the question of the stay.  The first paragraph reads:

   I have concerns about the orders and the process whereby they were made, and I have been granted leave to appeal the orders.

3. The orders were final, so there was no basis for an application for leave to appeal.  In addition, no application for leave has, in fact, been made.  As I understand the position, the matter is listed before the Full Court in March.  The second paragraph in the affidavit reads:

   Because of my concerns about the orders, I wish to have the orders stayed until the outcome of my appeal to the court, and I am applying accordingly.

4. None of those words go anywhere near fulfilling the requirements set out in the authorities.  I have discussed with, particularly Ms Cole this morning, the sort of things that might be said to be a checklist that are considerations for the exercise of discretion when granting a stay.  It is clear that a stay is not automatic when a notice of appeal is lodged.  It is a discretionary decision, whether to grant or refuse a stay, and I have told Ms Cole the sorts of matters that are contemplated by previous authorities of this court.

5. I am also mindful of the decision of Evatt CJ in Sanders and Sanders (1976) 26 FLR 474 but at this stage, I do not have sufficient evidence that would enable me to consider the matter. Mr Pearce is also being represented by a pro bono solicitor today and indicated no opposition to Ms Cole’s application being adjourned to enable her to obtain legal advice that might otherwise enable the court to hear the matter. The problem in this case is compounded by a number of matters.

6. The first is that the orders were made by Dessau J in September with the consent of the mother.  I concede that the mother was unrepresented at that time but on the file I have read the transcript of the dialogue between Ms Cole and her Honour.  The Independent Children’s Lawyer was represented by experienced counsel that day.  Subsequent to those orders being made, the matter came to my attention in the duty list because of a contravention application.  I dismissed that contravention application for reasons which were clear, I hope, in the judgment.

7. It is clear also that I made an error in the judgment, in that paragraphs 44 and 45 are inconsistent.  It is not appropriate that I endeavour to explain how that occurred but it is obvious that paragraph 44 is consistent with the orders I made and paragraph 45 amounts to a nonsense having regard to those orders.  In discussions with the parties today, it has been agreed that they have understood what I did and the orders I made and therefore, it is appropriate that paragraph 45 of those reasons be expunged and I propose to republish the judgment with paragraph 45 removed.

8. The inconsistency is simple.  In the orders of Dessau J, the contact between the father and the child was to be supervised by the paternal grandmother.  I made findings that I accepted that was appropriate, in respect of the contravention proceedings.  Paragraph 45 of the reasons makes reference to an option, if not the only option, open to me, being to vary the existing orders to have a contact centre operate.  Whilst I certainly contemplated that, that is not the order I made and certainly not the intention I had.

9. For that reason, and with the discussion of the parties being had, I propose to republish the judgment so that it is consistent with the orders I have made.  Because of the return from leave of Dessau J and the mother’s need to put a proper application before the court for the stay, it is only appropriate that the matter go back to Dessau J.  I do not have her diary available to me at the moment, so I will make an order that the proceedings be adjourned to a date to be fixed which will be advised by the associate to Dessau J within the next day or so.

10. That application can then be heard by her Honour, pending the outcome of the appeal.  For the record, I have also indicated to Ms Cole that, without the stay being granted, the orders of Dessau J, effectively confirmed by me on 21 December, stand and, as such, she needs to be conscious of, and careful about, the continuation of the orders pending the ultimate determination of either the stay or the appeal.  The parties this morning have had some discussions, ironically enough, about going to the contact centre but there is no agreement at this stage and certainly no application that I could determine.

11. I have published these reasons so that when Dessau J comes to hear the stay application, her Honour has at least the benefit of knowing what has occurred today and what happened when the contravention application was heard. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 February 2010