Crestin and Crestin and Ors

[2007] FamCA 1224

FAMILY COURT OF AUSTRALIA

CRESTIN & CRESTIN AND ORS [2007] FamCA 1224

FAMILY LAW – PRACTICE AND PROCEDURE - Stay of orders pending appeal

Family Law Act 1975 (Cth)

Jennings Construction & Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
De Lewinski & D.O.C.S (1996) 136 ALR 201

APPLICANT: Mrs Crestin

RESPONDENT: Mr Crestin

SECOND RESPONDENT: Mr Crestin Snr

THIRD RESPONDENT: Mrs Crestin Snr

FILE NUMBER: SYC 1894 of 2007

DATE DELIVERED: 3 October 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

EX TEMPORE JUDGMENT OF: Steele J

HEARING DATE: 3 October 2007

REPRESENTATION

APPLICANT: Mother in person

FIRST RESPONDENT: No appearance

SECOND & THIRD RESPONDENTS: Mr. Hannigan, solicitor

Orders

1. That the mother’s Application filed 19 September 2007 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1894 of 2007

MRS CRESTIN  

Applicant

And

MR CRESTIN  

First Respondent

And

MR CRESTIN SNR  

Second Respondent

And

MRS CRESTIN SNR  

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for a stay of interim parenting orders which I made on the first day of a Less Adversarial Trial on 27 July 2007. The mother filed a Notice of Appeal and her application is for a stay of the orders pending the hearing of the appeal.

2. The application before me on 27 July was an application by the paternal grandparents for orders made for contact with the father to be varied so that they can spend time with their grandchild, a boy, who is now just eight years of age, at the same time as the father. The mother responded by seeking orders that all orders for contact be cancelled and that she have sole parental control. 

3. The mother has appeared in person and the grandparents have been represented by Mr. Hannigan, solicitor.  That father did not appear at the hearing of the stay application but an affidavit by him was filed.  The grandparents seek to support the orders for the father to have contact.

4. The existing orders in place before 27 July were made by consent on 1 February 2006 for the child to live with the mother and spend time with the father each alternate weekend from 8:30 am Saturday to 6:00 pm Sunday and half the school holidays provided the father was himself available to spend time with the child and gave the mother requisite notice. There were other detailed orders.

5. The grandparents stated that they brought the proceedings because the father was impoverished by the property proceedings recently completed and could not afford to enforce the orders which were already in place. The father was a Respondent to their Application and it was clear that the father and his parents were pursuing the same end. The parties were each sworn to give evidence and the paternal grandfather, at my request, spelled out what he and his wife saw as the problems. He asserted that the orders that are in place for the child to spend alternate weekends and half his holidays with the father were not being complied with. He said he and his wife sought contact so they could assist the father to build a relationship with the child and that he and his wife were convinced that the mother had embarked on a course to frustrate the building of a relationship between the child, his father and his grandparents. He said that when the parties were together, the paternal grandmother had regularly looked after the child and had a good relationship with him.  He said that he and his wife were concerned that the mother is extremely volatile and they were concerned about her mental state.

6. The mother, outlining what she saw as the problems, indicated that there was a lot of violence in the marriage and that in the time since separation had occurred, which I think was September 2005, the child had come home having witnessed his father pushing his grandmother. She complained that although the father and grandparents had provided a room for the child, he didn’t sleep in the room but slept with his father. The child had told her of an occasion when the father and the paternal grandmother were pushing and shoving each other and another occasion when the paternal grandfather yelled at the child.  She said the child keeps telling her he does not want to go to the father’s place for contact. Importantly, she made no allegation that the father has been, since the consent orders were made, violent to the child, except an allegation that the child came home with a black eye even though the child told her that a boy called M had punched him and pushed him over. In her original affidavit filed in April 2007 she recorded (at paragraph 22) that the father admitted hitting him. In her affidavit in support of this application she said he was laughing when he said it.

7. The father said that in the initial periods after separation contact with the child was fine.  hey had lots of happy weekends but since the second lot of orders were made “his mother is in his head”. He said he refused to pick the child up if the child was saying that he didn’t want to spend time with him.  He denied any physical assault on the child.

8. The grandfather, who having regard to my limited exposure to him seemed to be a sensible and reasonable person, was asked about allegations that the father had pushed the paternal grandmother. He denied any such event and said that in his household he would not allow conduct of that sort.

9. The family consultant, Ms K was also sworn to give evidence and indicated she did not think there was any point in her talking to the parties again because she had seen them in April and nothing had changed since that time. 

10. The grandparents and the father were clearly of the view that the mother was attempting to alienate the child from them and were concerned that the child’s assertions that he did not wish to spend time with them were, in all the circumstances, otherwise inexplicable. It was my view that if contact were to commence immediately after school on the Friday and end at the commencement of school on a Monday, it would mean that the child would not have seen the mother since Friday morning and was less likely to be influenced by her than if the grandparents or father were to collect the child from the mother’s home. I indicated that I proposed to adopt such a course in order to ascertain whether there was some other problem and to see whether the grandparents may understand that there was a real problem if the child, in those circumstances, remained unwilling to go to them. 

11. I asked Ms K about this and whilst she initially said she thought that would be fine, she later indicated that it may be better to have an expanding period so that initially contact would be from Friday after school until Saturday night for three occasions then increase it gradually until it was for the full weekend. I indicated to counsel for the mother that I was minded to make those orders and gave him the opportunity to be heard as to why I shouldn’t do so. He indicated that his client opposed the orders and made submissions but ultimately I made the orders which I had indicated. They provided for alternate weekend contact commencing after school Friday graduating from one overnight period to two and then to three increasing every six weeks. The orders required the mother to authorise the child’s school to allow the father and paternal grandfather to collect the child from school.

12. The mother seeks a stay of these orders pending determination of her appeal.  If I grant the stay, the consent orders made in February 2006 will remain in force with the need for the parties to have contact at changeovers. That will be a recipe for further arguments.

13. The principles governing the determination of an Application to Stay orders pending an Application for Special Leave to Appeal to the High Court were spelled out in the judgment of Brennan J in Jennings Construction Limited & Burgundy Royale Investments Proprietry Limited (1986) 161 CLR 681 and were followed by Gummow J in De Lewinski & D.O.C.S (1996) 136 ALR 201. In that judgment, Brennan J determined that when the Court, faced with a Stay Application, is satisfied that a stay is required to preserve the subject matter of litigation it should consider:-

    (i)Whether there is a substantial prospect that special leave to appeal will be granted.

    (ii)Whether the applicant has failed to take whatever steps are necessary to seek a Stay from the Court in which the matter is pending.

    (iii)Whether the grant of a Stay will cause loss to the respondent.

    (iv)Where the balance of convenience lies.

14. Those principles, adjusted to the circumstances where a stay is sought in this Court in respect of parenting orders pending an Appeal to the Full Court, can be applied. This Court however, should first be satisfied that the granting of a stay of parenting orders is unlikely to cause harm to the child the subject of the orders and if so satisfied, should consider (adjusted for the circumstances) the following:-

    (i)Whether there is a substantial prospect that the Appeal will be successful.

    (ii)Whether the appropriate steps have been taken in relation to the stay.

    (iii)Whether the grant of the Stay will cause loss to the Respondents or diminish the child’s position.

    (iv)Where the balance of convenience lies.

15. The first matter then for consideration is whether the Court is satisfied that the granting of a stay is unlikely to cause harm to the child. On the first day of the LAT hearing the mother was asked to spell out what she saw as the problems.  No allegation was then made that the father had been violent towards the child since the mother had consented to orders on 1 February 2006, which provided for the child to spend time overnight with the father. The mother has filed a lengthy affidavit in support of this application, detailing a history of violence.  The only suggestion of violence to the child since the consent orders made on 1 February 2006 was one occasion when the child is said to have come home with a black eye as the only indication of violence involving the child in the time since the consent orders were made on 1 February 2006. There is, in my view, no substantial risk that the child will suffer harm if a stay of the orders made on 27 July 2007 is not granted.

16. I turn then to consider the other matters already referred to.

    (i) Whether there is a substantial prospect that the Appeal will be successful

    There are 15 grounds of appeal spelled out in the Notice of Appeal.  It is always difficult for a judge to be placed in the position of having to pass upon the prospects of his/her judgment being in error.  Important grounds such as the failure to give an opportunity to be heard could not be made out.  The transcript indicates that reference was made to the fact that allegations made by the parties could not be tested and the allegations were considered in that light.

    The mother’s complaint appears to be that the Court failed to treat her untested allegations as fact which had been established, when they had not. 

    Whilst I have recorded it is difficult for a judge to assess his own judgment, it seems to me that the prospects of the mother being successful on Appeal are not substantial.

    (ii) Whether the appropriate steps have been taken in relation to the stay

    The orders were made on 27 July 2007 and the Application for a Stay was not filed until 19 September 2007. The Notice of Appeal was filed on 23 August 2007.  More urgency in the bringing of the Stay Application may be a greater pointer to its bona fides but that may not be the case if the mother has complied with the interim orders in the mean time. It seems however, that has not happened.  There have been four occasions of contact which were, so the grandparents say, successful but the holiday contact has not taken place because the child was not made available for contact by the mother. The mother has not attempted to put forward any explanation for why the child was not available for the holiday contact period.

    (iii) Whether the grant of the stay will cause loss to the respondents or diminish the child’s position

    The grant of a stay would not cause loss to the respondents as such but it would mean that any program for the rehabilitation of the relationship between the child and his father and grandparents would be further delayed.  This may well be of disadvantage to the child.  I am informed that the Appeal is likely to be heard, at the earliest, in December.  That will have effected a five month delay, at least, since the orders were made.

    (iv) Where the balance of convenience lies

    The mother, having consented to orders in February 2006, now seeks by her Response to have all contact between the child and his father discontinued without any significant change to justify such a course.  If a stay is granted the orders of 1 February 2006 will be revived with all the attendant difficulties on changeover.  Experience is these matters in this Court raises serious issues about whether the mother is simply using the legal process to frustrate the father and his parents in commencing the process of rebuilding a relationship with the child. The circumstances which would be sufficient to justify the cutting off of all contact would have to be greater than anything here alleged, especially in the period since February of 2006. 

17. Having regard to all these matters it seems to me that the child’s best interests will be best served by the exercise of my discretion in refusing a stay. The order that I make is that the mother’s Application filed 19 September 2007 be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate

Date:  10 October 2007