Colombo & Richardson (No 3)

[2021] FCCA 1014

FEDERAL CIRCUIT COURT OF AUSTRALIA

Colombo & Richardson (No 3) [2021] FCCA 1014

File numbers:

MLC 12837 of 2018

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

14 May 2021

Catchwords:

FAMILY LAW – Stay Application – Interim parenting – where children live with maternal grandmother – where orders made for children to spend supervised time with mother – where supervised time has commenced – where grandmother files stay application – where contact centre has provided a report – application dismissed.   

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 94AA

Family Law Regulations1984 (Cth)

Federal Circuit Court Rules 2001   

Cases cited:

Cantrell & North [2019] FLC ¶93-921

Rice & Asplund [1978] FamCAFC 128

Sarti and Anor & Sarti (No 2) (2020) FLC ¶93-993

Number of paragraphs:

64

Date of hearing:

7 May 2021

Place:

Melbourne

Counsel for the Applicant:

Mr D Robertson

Solicitor for the Applicant:

Faram Ritchie Davies

Counsel for the First Respondent:

Mr P Testart

Solicitor for the First Respondent:

Morrison & Sawers

The Second Respondent:

Appeared In Person

Counsel for the Independent Children's Lawyer:

Mr N Gardiner

Solicitor for the Independent Children's Lawyer:

Medson Legal Pty Ltd

ORDERS

MLC 12837 of 2018

BETWEEN:

MS COLOMBO

Applicant

AND:

MS RICHARDSON

First Respondent

MR WEST

Second Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	14 MAY 2021

THE COURT ORDERS THAT:

1.The Maternal Grandmother’s Application in a Case filed 28 April 2021 being for a stay of orders pending appeal be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Colombo & Richardson (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

INTRODUCTION

1. This is a stay application by the first respondent in these proceedings, Ms Richardson (‘the Maternal Grandmother), supported by the second respondent Mr West (‘the Father’) to stay interim parenting orders that I made on 18 March 2020.  Those orders were in the Maternal Grandmother's favour, but provided that the mother Ms Colombo (‘the Mother’) have monthly supervised time at the B Contact Centre Supervised Contact Service (‘B Contact Centre’) situated nearby to where the Maternal Grandmother, the Mother, and the Father once lived. 

2. The question I must determine is whether that supervised time should continue, pending the hearing of the appeal from my decisions lodged by the Maternal Grandmother. These reasons should be read in conjunction with the earlier reasons delivered ex tempore on 17 March 2021, concerning rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) and Rice & Asplund [1978] FamCAFC 128 (‘the rule 16.05/Rice & Asplund’ reasons) and the reasons delivered ex tempore on 18 March 2021 (‘the supervised time reasons’).  The Maternal Grandmother filed the stay application on 28 April 2021 and I heard that application on 7 May 2021 before the next supervised time was scheduled.  I will not grant the stay application and these are my reasons. 

   BACKGROUND

3. The Mother is aged 28 and the Father is 31.  The Father and the Mother have three children:  X, now aged 11; Y, aged 8; and Z, aged 6 (‘the children’).  The Maternal Grandmother is the mother of Ms Colombo, and she is aged 45.  The Maternal Grandmother has other children:  Mr F, who is aged 18, G, aged 11, and H, who is aged 10.  The Father has re-partnered with Ms E, and Ms E has some other children, and her youngest, J, is aged 9. 

4. It is common ground that until September 2018, the children, had lived their entire life with the Mother and that the Father had had significant involvement in their lives. 

   PROCEDURAL HISTORY

5. Interim orders had been made, ex parte, in the Magistrates' Court at Town C in September 2018.  The children had come into the care of the Maternal Grandmother when the Mother had sought her assistance following a significant instance of violence between the Mother and the Father on 14 September 2018.  The Magistrates' Court at Town C first dealt with the matter ex parte, on 8 October 2018 when orders were made in the Maternal Grandmother's favour and the proceedings adjourned to 16 October 2018.  On 16 October 2018, further orders were made and were recorded as being made by consent when the Mother and the Father appeared in person and the Maternal Grandmother was represented. 

6. The proceedings were adjourned to the Federal Circuit Court, and in circumstances set out in the rule 16.05/Rice & Asplund reasons, final orders were made on the first return of the matter in the Federal Circuit Court on 25 February 2019 (‘the 2019 Final Orders’). 

7. The Mother had issued proceedings on the 20 October 2020, and the matter had first came before me on 9 December 2020, in a duty list.  On that day, orders were made by the consent of the Maternal Grandmother and the parents.  At that time the Father appeared in person, but the Maternal Grandmother and the Mother were represented.  The orders provided for there to be supervised time at the B Contact Centre but those orders were said to be made without prejudice to the Maternal Grandmother’s position of seeking that the Mother’s application be dismissed, as lacking a sufficient change of circumstances to warrant the living arrangements of the children provided in the 2019 Final Orders being revisited, and the matter was adjourned to 5 March 2021. 

   THE MARCH 2021 HEARINGS

8. The matter came before me on 5 March 2021, I appointed an Independent Children’s Lawyer and otherwise adjourned the matter to 15 March 2021 when I anticipated I would have more time to listen to the parties' arguments and be on top of all the material. On 15 March 2021, I heard arguments that concluded after 5pm on that day. The matter was adjourned to the following Wednesday, 17 March 2021, in circumstances where I had a part heard final hearing the following day. On 17 March 2021, I delivered ex tempore reasons for my decision in regards to the rule 16.05 application and the Rice & Asplund issue.  I ordered that the Mother be permitted to bring an application to set aside the 2019 Final Orders, and that the Maternal Grandmother’s application to prevent the Mother from bringing an application on the principles of Rice & Asplund be dismissed. 

9. I adjourned the matter to the following day being 18 March 2021 to give the parties an opportunity to consider what orders for time should be made in the circumstances where I had not heard submissions from them about what interim orders, if any, should be made.  On 18 March 2021 I heard argument and then delivered a short ex tempore judgment that provided that the Mother have monthly supervised time at a supervised facility.  

10. The Maternal Grandmother, who opposes any time between the Mother and the children being reintroduced at this time, lodged a notice of appeal on 14 April 2021.  In that notice she sought leave to appeal, and sought to appeal the orders in relation to the rule 16. 05/Rice & Asplund orders and the supervised time orders. 

11. The grounds of appeal in regard to the rule 16.05/Rice & Asplund orders are set out at paragraph 1(a), (b), (c) and (d) of the Notice of Appeal and I recite those:

    (1)The primary judge erred and his discretion was miscarried in permitting the Mother to continue with her application filed 9 October 2020 in that: 

    (a)the primary judge should not have found to the effect that the Mother was denied procedural fairness when the final orders were made in February 2019; 

    (b)the primary judge should not have found to the effect that the Mother has an adequate reason for being absent from Court when the final orders were made in February 2019; 

    (c)the primary judge should not have found that the Mother adequately explained her delay in bringing her application; 

    (d)the primary judge should not have exercised his discretion to find to the effect that the mother ought to be given leave to proceed with her application, pursuant to the principle in Rice & Asplund.

12. The ground of appeal in regard to the supervised time orders was simply as follows:

    (1)The primary judge erred and his discretion (h)as miscarried in that permitting the Mother to spend time with the children. 

13. What can be also looked upon as either grounds of appeal or an indication of future grounds of appeal is the matters set out in regard to Leave to Appeal and includes the following: 

    (1)On 18 March 2021, the primary judge (erred when he) made orders for interim contact in circumstance where: 

    (a)cogent and compelling evidence was before the Court to the effect that, in February 2020 the mother had attempted a home invasion of the appellant's home, in the presence of the children, and the children were traumatised thereby; and

    (b)in the absence of any, or any sufficient evidence that a resumption of interim time with the Mother was in the best interests of the children. 

14. That Leave to Appeal application also contained further paragraphs [1] to [7], all of which I have taken into account, and apart from Leave to Appeal indicate potential grounds of appeal.  It was asserted at paragraph [5] as follows:

    [5].His Honour, the learned primary judge (primary judge), found (amongst other things) that the Mother had established a significant change of circumstances by reason of a fact that she had ended her relationship with the father, Mr West.  This issue was not raised at any time by any party or the primary judge during the hearing before the primary judge, and the appellant was not given the opportunity to respond to this issue.  The appellant was denied procedural fairness as to that finding.  In any event, such a finding is challenged as being a sufficient change of circumstances. 

15. It may be that Leave to Appeal is not required given the provision of section 94AA of the Family Law Act 1975 (Cth) (‘the Act’) and regulation 15A of the Family Law Regulations1984 (Cth) but that does not impact on my decision.

16. Counsel for the Maternal Grandmother, the appellant for the stay, raised with me that at the time of the lodging of the Notice of Appeal, that the Mother did not have the settled written reasons of the ex tempore judgment nor did the Maternal Grandmother or her advisors have the transcript of the proceedings.  Mr Testart (counsel for the Maternal Grandmother) indicated that amended grounds of appeal would likely be lodged and asked that I take into account the practical difficulties of drafting elegant grounds of appeal when a party only has notes of the oral delivery of ex tempore reasons.  I am familiar with that circumstance and take that into account. 

17. Mr Testart, who appeared at the hearing on 15, 17 and 18 March 2021 disavowed that there was any disconnection between the oral ex tempore reasons and the settled reasons that were subsequently provided. I note the settled written reasons of both decisions were not provided until 21 April 2021. The orders of the supervised time reasons included that there be a child-inclusive conference, pursuant to section 11F of the Act on 20 July 2021 (‘the section 11F conference’), and that the proceedings were otherwise adjourned for interim defended hearing before me on 29 July 2021.

18. I also ordered that a family report be prepared on or before 23 November 2021, and that the matter be fixed as a four-day special fixture before me on 15 March 2022. The section 11F conference date was determined by that being the next available section 11F conference to me in the circumstances of very significant demand for such a facility from the litigants before the Court. The availability of the section 11F conference determined the return of the matter for further interim hearing before me (if the section 11F memorandum did not assist the parties work out what should happen by compromise or consent).

19. The special fixture hearing date of 15 March 2022 was determined by the family report being completed by 23 November 2021 being the earliest available date that I had for such a facility.  Mr Testart sought (and I permitted him) to recast what was likely to be the grounds of appeal.  As he put it, the nub of the appeal was that the orders of 18 March 2021 were in error, in that there was a disjunction or leap from the circumstance that I had set out at paragraph 6 of the supervised time reasons and the orders for supervised time.  At [6] I said:

    [6]I find that there is substantial and compelling evidence that the mother and Mr D wreaked a violent attack on the grandmother's household on 17 February 2020 and upon the father and Ms E on 17 February 2020…

20. However, I did not actually find on the balance of probabilities that that had occurred because the parties had not had the opportunity to explore the events at a final hearing.  However, it is clear that there is strong and compelling evidence that that may well have occurred, and I proceeded on the basis that there is a real risk that that is one of the matters that the children have had to deal with in their lifetime.  The Mother's case before me was that the allegations of the Maternal Grandmother were denied in regards to that event, notwithstanding that the Mother had not set out what she said had occurred on that day. 

21. Mr Testart submitted that there was a leap from the fear that the children must have encountered on 17 February 2020 to an order for supervised time and that I had given insufficient consideration of the effect on the children of those events.  He said the police had regarded the attack of 17 February 2020 as so serious that the safety of the Maternal Grandmother and the children was at risk and police had relocated the Maternal Grandmother's home to an unknown but safe place. 

22. The substance of this submission was that I did not know enough, that is, have sufficient evidence of what was the impact upon the children who had suffered the events described as the home invasion, of being confronted with their Mother even in the supervised setting of the supervision facility.  

23. Mr Testart's submissions conceded that the children's love of the Mother had been demonstrated by the physical manifestations of that love, but that there was an undercurrent of emotional fragility by the question posed by the youngest child, “Why did you come to our house?” and he said this inferred questions in the children’s minds of: “Why did the police come? Why did grandma have to call the police?  Why did you bring a crowbar?” He said that question and the inferred questions were a demonstration of continuing anxiety and the potential for emotional damage to the children on being confronted with their Mother in the supervised setting. 

24. Mr Testart submitted those questions in the family report and in the B Contact Centre report demonstrated an ambivalence within the emotions of the child, and hence the children.  Mr Testart agreed that a recasting of the grounds for appeal could be as follows: that the primary judge failed to consider, or to consider sufficiently, the emotional harm to the children of being confronted with their Mother in a supervised setting given the compelling evidence of the traumatic events of 17 February 2020.  The Mother submits my consideration of that was at the heart of my decision.  I accept that submission.

25. For the purpose of the stay application, I indicated to Mr Testart that I did not regard the appeal as a “rubbish” or a “give it a go” appeal, and that as recast it was arguable, and that for the purposes of the stay application, he did not need to demonstrate that I was in error, only that upon a consideration of the strength of the appeal it was arguable. 

26. In regard to the Rice & Asplund reasons, Mr Testart indicated that it was unnecessary to stay that aspect of my decisions. It was only necessary to stay the supervised time orders. Mr Testart pointed to one aspect of the rule 16.05 and Rice & Asplund hearing as being at least arguable, and that was what he said was the lack of procedural fairness in regard to the observation that the ending of the relationship with the Father was a change of circumstances.

27. I acknowledge the difficulty for a solicitor drafting grounds of appeal from oral ex tempore reasons, however the circumstance that the toxic relationship between the Mother and the Father had ended was only the first matter that I described as a significant change.  Those reasons demonstrate (from paragraphs [48] to [52]), that was one of six matters that I regarded as significant change sufficient to overcome the sensible caution set out in Rice & Asplund. 

28. I note that at paragraph [63] I set out that that breakdown of the relationship between the Mother and the Maternal Grandmother and the consequence that there will not be time in the future for these children with their Mother unless I make an order or unless the Maternal Grandmother is able to be persuaded of a sufficient change in the Mother's behaviour was of itself a sufficient change to be taken into account in the Rice & Asplund application. 

29. I conceded to Mr Testart that I did not raise the ending of the relationship as a potential change of circumstance with him in argument, but those essential facts that underline such a finding were known to all parties at the time of the hearing. 

30. I raised with Mr Testart what I described as the First XI, being the well-known 11 principles relating to a stay pending appeal synthesised from High Court and Family Court authorities, and I went through with him those 11 points that are conveniently described in Cantrell & North [2019] FLC ¶93-921 (Cantrell & North).

31. The thrust of Mr Testart's submission was that I should stay the supervised time orders because if the children were in fact being emotionally damaged by being confronted with their Mother in the supervised setting, then by the time the appeal is heard the damage had been done.  Or as he put it, the damage will already have occurred and the children would have already been damaged by the process.  In substance this was put as the proper basis of the stay application and that would render the appeal “nugatory”.

32. It was at this point that Mr Testart pressed an alternative position of a stay until 29 July 2021, the hearing following the section 11F conference i.e., a partial stay or a stay upon conditions with the matter being reviewed with the additional information of the section 11F conference memorandum.

33. The thrust of Mr Testart's submissions was that the stay application came down to considering three matters, though acknowledging that all of the First XI were relevant.  He submitted that in the circumstance where the damage will already have occurred, if the appeal is upheld then the appeal is rendered nugatory, and in considering the best interests of the children, the risk of damage having already occurred is a most significant matter, and that the appeal should be regarded at least as arguable.

34. Mr Testart was unable to assist me as to when the appeal was likely to be heard, but he assured me that on his instructions the appeal would be pressed to come before the Full Court urgently and I accept that will be done. 

35. To assist me in making this decision, I am fortunate to have further additional information which was not before me at the supervised time hearing.  It is essential when considering the 11^th dot point of Cantrell & North: that is the best interest of the children, and the nugatory point that I must take into account all significant events including significant events that have occurred since my orders. 

    THE PSYCHOLOGIST REPORT

1. Pursuant to orders that I made by consent in December 2020, the Mother was examined by Dr T, a psychologist.  Dr T identified at [21] as follows:

   [21]Parenting risk factors (of the Mother) included instability in accommodation; ongoing substance use; unhealthy relationships with intimate partners; a deterioration in her mental health; and difficulty supporting the relationship between the children and the Maternal Grandmother.  Given her history of instability and allegations made by the Maternal Grandmother, it would seem appropriate that spend time continues to be supervised…

2. She went on at [22] to observe: 

   [22]It is recommended that Ms Colombo engages in ongoing therapy with a psychologist/clinical psychologist long term (fortnightly sessions for a minimum of 12 months).

3. Dr T also observed at [24] as follows:

   [24]Based on the current evaluation and reading of collateral information, the maternal grandmother did not appear to support Ms Colombo having a relationship with her children.  Assessment of the maternal grandmother's capacity to support this relationship should be considered.

4. However, significantly, in circumstances where the Maternal Grandmother's case was that the Mother had at least previously untreated mental health disorders, Dr T observed at [20]:

   [20]Psychological evaluation via a structured clinical interview and psychometric evaluation did not identify a formal psychological disorder, although it seemed likely that Ms Colombo was minimising her history of mental health issues given her exposure to childhood trauma and family violence.  It seemed likely that the Mother had a history of depression and anxiety symptomatology perpetuated by absence of stability in accommodation and unhealthy relationships.  Allegations made by the Maternal Grandmother suggested that the Mother had experienced periods of erratic and aggressive behaviour in the past, and had a history of drug use. 

   (emphasis added)

5. In regard to the drug use at [16], Dr T observed:

   [16]Ms Colombo reported that she had experimented with marijuana in her teens, but denied any other illicit drug use.  She stated, however, that following a car accident, she became addicted to opiates prescribed to help manage her pain over an 18 month period.  She indicated that she was now on a methadone program to withdraw from the opiates and was using Panadeine Forte to help manage any pain. 

6. Based upon the history given and the materials that Dr T had, she opined at [19]:

   [19]Ms Colombo was exposed to family violence, substance misuse, physical and sexual abuse, and instability in care/attachment throughout childhood.  This was replicated in adolescence and adulthood on forming a relationship with a domestically violent man.  Ms Colombo has had difficulty maintaining accommodation and employment throughout adulthood, perpetuated by interpersonal conflict.  She reported having an addiction to opiates for which she was prescribed methadone to help manage.  She denied any other illicit drug abuse. 

7. That information from Dr T's assessment and report is consistent with, and reinforces, my supervised time finding that the children's exposure to the Mother, insofar as her mental state was relevant, in supervised time was not an unacceptable risk of harm to them. 

   THE B CONTACT CENTRE REPORT

8. The further additional information that I had at the hearing of the stay application which I did not have at the supervised time hearing was a report from the supervising facility dated 6 May 2021 which had been provided to all of the parties.  I had at the supervised time hearing been advised by the Independent Children's Lawyer that the facility regarded the first supervised visit of 21 February 2021 as going well and that the children were affectionate.  But that was all. 

9. The supervised facility report of 6 May 2021 (which for the purpose of these reasons I will mark as exhibit ‘A’) is a detailed observation of the first supervised visit of 21 February 2021 and the next on 21 March 2021.  The report describes how the supervisor first oriented the children in the facility and, at the suggestion of the Maternal Grandmother, requested a safe word for the children should they want to leave the visit, and a safe phrase of “there's a mouse” was agreed. 

10. The first scheduled visit with the Mother occurred over 85 minutes.  The Mother brought several gifts to the visit for the children which included toys, watch and a camera.  She provided flavoured milk, cupcakes and YoGos.  The report shows that the children asked the Mother questions including, “Why did you come to our house?” and “Are you still with him?” (meaning the Mother’s partner).  However, significant observations were as follows:

    Throughout the visit the children were observed smiling and laugh.  Ms Colombo assisted the children with activities as required and often praised the children such as “you're so beautiful”, “wow, you're smart”, “you're so pretty”, “you kids are the best”, and “you're great at this stuff”. 

    The children initiated physical contact such as approached their Mother for several hugs, leaned on her, stroked her hair and at times sat on her knee. 

11. Further observations included:

    On conclusion of the visit, Ms Colombo hugged and kissed the children farewell and provided gifts and food to take home.  Prior to leaving the room all the children returned to their Mother for several hugs. 

    Z thanked the worker for being “in the visit”, the worker praised Z for her good manners.  Z smiled.  

    The children were returned to Ms Colombo’s care.  The worker provided positive feedback regarding the visit. 

    The worker returned to Ms Colombo and provided positive feedback regarding the visit. 

    …

    Ms Colombo relayed she was fearful of the children’s father and was worried he may assault or kill her or the children.  The worker suggested Ms Colombo to seek legal advice. 

12. The second visit occurred on 21 March 2021, that is, shortly after I had made orders on 18 March 2021.  The first supervised visit had occurred shortly before I had made orders.  The observations of the second visit on 21 March 2021 included the following:

    Ms Colombo brought spaghetti bolognaise, doughnuts, orange juice, milk, yoghurt, colouring supplies, toys, jewellery DVDs and gifts;  two bikes, toys and stuffed animals to the visit. 

13. On this visit the children continued to ask questions about what I infer was the events of February 2021 when Z asked: “Why did you come to our house?”  The children also asked, “Do you have a kid with Rocket?” (the Mother’s partner), and “Do we have a brother or sister?” 

14. Significant observations were as follows:

    “Throughout the visit Ms Colombo sat on the table or on the floor and followed the children's lead in play.  All the children were observed smiling and laughing and, on several occasions, Ms Colombo hugged the children.  The children also put their arms around their mother or leaned on her.  Ms Colombo assisted the children when required and offered praise to them such as “good girl” and, “wow, that's great.”  Activities included colouring in and playing with the children's gifts.”

    At the end of the visit, Ms Colombo hugged the children several times and said “Goodbye, love you.”  All the children replied, “Love you.”

15. In the 18 March 2021 reasons, I had observed at [7] as follows: 

    [7]I am dealing with this on an interim basis.  The competing cases for residence of these children, between the mother and the maternal grandmother, centre on a much wider factual basis than the events of 17 February 2020, though it is likely to be a significant matter in the children's lives.  It is for these reasons why I would not consider time other than supervised and supervised by a specialist facility with expertise in children's welfare, and sadly, inevitably, in this day and age, when dealing with children's welfare, the exposure of children to violence and family violence is, unfortunately, a necessary part of that expertise. 

16. I went on at paragraph [8] as follows: 

    [8]I am satisfied that B Contact Centre has appropriate and significant expertise to deal with the children's welfare in a supervised visit, in the circumstances that those events of 17 February 2020 may well have occurred as the Maternal Grandmother says.

17. The 6 May 2021 exhibit ‘A’ reinforces my view that the supervising facility has the appropriate expertise to deal with the children's welfare in a supervised visit including in circumstances where the events of 17 February 2020 as alleged by the Maternal Grandmother may well have occurred as she says. 

18. In the circumstances where the matter will be reviewed following the section 11F conference, I have to determine whether there should be further supervised visits on the third Sunday of each month (23 May, 20 June and 25 July). I note that the visit ordered to occur in April was cancelled on the basis that the children were ill. Notwithstanding that she is unhappy with the orders that I made and is appealing them, I do not doubt that the Maternal Grandmother will comply with the orders if I do not stay them.

    THE 11 POINTS

19. I must balance all of the factors described in Cantrell & North at [18], which I note are as follows:

    (1)The Maternal Grandmother must establish a proper basis for the stay and does not need to demonstrate any special or exceptional circumstances. 

    (2)The Mother, who has obtained this judgment, is entitled to the benefit of that judgment.

    (3)The Mother is entitled to presume that the judgment is correct.

    (4)The mere filing of an appeal is insufficient to grant a stay and it was not contended that it was.

    (5)As to point 5, I do not doubt the bona fides of the Maternal Grandmother for the purposes of this stay application. 

    (6)A stay may be granted on terms and when discussing this point, it was when Mr Testart, counsel for the Maternal Grandmother, raised the alternative position of a stay until after the section 11F conference return hearing.

    (7)It is necessary to weigh a risk that the appeal will be rendered nugatory if the stay is not granted and this will be a substantial factor. 

    (8)Some preliminary assessment of the strengths of the proposed appeal is necessary; does the appellant have an arguable case?  I regard the appeal as arguable but no higher than that. 

    (9)The desirability of limiting the frequency of any change in children's living arrangements.

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

    (11)The best interests of the children are a significant consideration.

20. The application for the stay addressed, in substance, points 5, 7, 10 and 11 in submissions.  In substance Mr Testart pressed that points 7, 10 and 11 as supporting a stay of the orders and as being a proper basis for a stay. 

21. As to the point 7 “nugatory” and best interests point 11 considerations, I must continue to weigh the circumstances that at the time when the children came into the care of the Maternal Grandmother the children had been cared for by the Mother their entire lives.  Since that time, they had seen their Mother on one occasion and since the orders of 3 December 2020, on two occasions in supervised time being February and March this year.  I find that there is not any or any sufficient evidence that the children were traumatised and internalising that trauma during or after the supervised visits.  When considering the best interests of the children and the nugatory “damage will be done” argument, I do not find that the “damage” will or may be done.  I must also consider the circumstances that these children have just reconnected with their Mother in what appears to have been a carefully supervised and appropriate and enjoyable time for them.

22. I must balance interfering with the continuation of those visits pending the appeal which may be later in 2021 or early 2022, and on the alternative argument, until the matter returns before me on 29 July 2021 after the section 11F conference. I must so consider that in the context of the appeal as being arguable.

23. The Father supported the Maternal Grandmother in regard to the stay and I permitted his current partner, Ms E, also said to be a victim of violence on 17 February 2020 to address me.  I was assisted by Ms E's address and she pointed out to me potential inconsistencies in the Mother's accounts of events.  It is also significant that the Maternal Grandmother and the Father now appear to be aligned, although it appears that the Father is not having face-to-face time with the children, but telephone and video conference time by agreement with the Maternal Grandmother. 

24. Sarti and Anor & Sarti (No 2) (2020) FLC ¶93-993 involved a stay application concerning time with a child. Ryan J observed at [8]-[9]:

    [8]It is accepted that the parents’ opposition to contact between the child and the grandfather would be defeated if a stay is refused. Furthermore, that consistency in living arrangements is generally advantageous to children and that chaotic arrangements can be disadvantageous. As to the latter, this is a question of degree. In circumstances where the child had reasonably regular contact with the grandfather last year and was excited to see him on 14 June 2020 (affidavit of the grandfather filed 14 October 2020, paragraph 9.5), it is not accepted he would be unsettled if he had short periods with the grandfather between now and the hearing for which the orders provide. Even if the orders are set aside and the visits cease.

    [9]The fact that the orders could be set aside and the visits thus cease, demonstrates that a refusal to grant a stay would not render every aspect of the appeal nugatory.

    CONCLUSION

25. Balancing all of the factors recited at [18] of Cantrell & North and the evidence in this case, I am not persuaded that these children's limited relationship with their Mother should be further put on hold pending further evidence or investigation or the appeal as the submissions in support of the stay seek. I find that the two supervised visits have gone well. I find that the children, despite what may have happened on 17 February 2020, love and retain affection for their Mother. I continue to and do, consider section 60CC(2A) of the Act, that is, the direction that the parental relationship should be maintained where it is safe to do so.

26. I am persuaded that it is not in the children's best interests to put their connection with their Mother on hold when it has just got started and I find that it is not in the children's interest to raise the prospect that their connection with their mother will be uncertain.  And I so find notwithstanding that the appeal is arguable.  That is, they did not see her for a long time.  They saw her on two occasions reasonably close together and then, if the stay is granted, will not see her again for some months or maybe many months. 

27. I note, as I said to the parties, I am not an Appeal Court reviewing my decision.  Notwithstanding that the supervised time hearing on 18 March 2021 was an interim hearing, I am required to deal with the best interest of the children at this point in time by the 11^th point of the principles recited in Cantrell & North at [18]. As was submitted by counsel for the Mother and the Independent Children's Lawyer, I do not have any evidence that the children are or will be damaged by the supervised process. The case in support of the stay seeks that I draw that inference and asserts an inevitability or real risk of that “damage” from the supervised visit. I do not find that is so. The Independent Children's Lawyer supported the continuation of the supervised visit and opposed the stay.

28. If my orders are wrong and not in the children’s best interests they will likely be set aside on appeal and then it is likely supervised time would cease. So the appeal will not be nugatory in every aspect. I find that there is not an unacceptable risk of “damage” in the supervised visits continuing until the post section 11F conference review and, subject to the further evidence of the section 11F conference until the hearing of the appeal.

29. In all of those circumstances I will not grant the stay and I dismiss the application.  

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       14 May 2021