Danton & Lancaster (No 2)
[2024] FedCFamC2F 1464
•2 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Danton & Lancaster (No 2) [2024] FedCFamC2F 1464
File number(s): DGC 1527 of 2016 Judgment of: JUDGE JENKINS Date of judgment: 2 October 2024 Catchwords: FAMILY LAW – Parenting – application for stay of final orders pending an appeal – immediate risk to child of physical and psychological harm outweighs long term risks identified at final hearing – stay application granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r. 13.12 Cases cited: Aldridge & Keaton [2009] FMCAfam 314
JRN &KEN & IEG & BLG (1998) 72 ALJR 1329
Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 20 September 2024 Place: Dandenong via Web Conference Solicitor for the Applicant: Mr Dunstan Representative for the Respondent: In-person ORDERS
DGC 1527 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LANCASTER
Applicant
AND: MR DANTON
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Final Orders of 6 August 2024 are stayed pending the determination of appeal filed by the applicant mother on 14 August 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE JENKINS:
These reasons were delivered orally and have been corrected from transcript.
BRIEF BACKGROUND
This matter comes before me as an application to stay the final parenting orders that were made by this court on 6 August this year, (“the final orders”), pending the hearing of the mother’s appeal from those orders.
The final orders provide for the child, X, born in 2011 to move from living with his mother, who had been his primary carer, into the care of his father, and to spend no time with his mother, or have any communication with her for a period of about three months.
My reasons for those orders were published with the orders on 6 August 2024 (“the reasons for judgment”) and set out the full history of this matter. As such, I shall not repeat the contents of that judgment, save to note that a finding was made that X would be at unacceptable risk of psychological harm if he remained in his mother’s care.
On 14 August 2024, the mother filed a notice of appeal from the final orders, and on 4 September 2024, filed an application in a proceeding seeking to stay those orders pending the appeal.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
(1)her outline of case filed 18 September 2024;
(2)her application in a proceeding filed 4 September 2024;
(3)her two affidavits filed 4 September 2024 and 17 September 2024;
(4)the affidavit of Mr AA, the father of X’s friend, filed 17 September 2024;
(5)the affidavit of Ms CC, the mother’s sister, filed 17 September 2024; and
(6)the affidavit of Ms G, the mother’s adult daughter, filed 17 September 2024.
The father relied upon the following documents:
(1)his response to the application in a proceeding filed 12 and 18 September 2024; and
(2)his two affidavits filed 12 September and 18 September 2024.
SUBMISSIONS
The matter proceeded by way of submissions.
I have had regard to the submissions of both the applicant mother and the respondent father and the parts of the evidence relied upon by the parties in those submissions, albeit I may not refer to every part of the evidence which formed the basis of my decision in this matter.
THE LAW
In terms of the legislation, rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out the basis upon which a stay application may be filed.
The principles relating to the granting of a stay pending an appeal was set out by the Full Court in the decision of Aldridge & Keaton [2009] FMCAfam 314.
It is clear that the discretion to stay the operation of orders should only be exercised where circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation, pending the determination of any appeal.
Circumstances that might justify a stay of orders include the need to prevent the appeal from being rendered nugatory and/or where there is a real risk that it will not be possible for a successful appellant to be restored to his or her former position if the orders are executed.
In determining that question, the court should consider the prospects of the appeal and where the balance of convenience lies between the parties.
As the order granting a stay is not a parenting order, the requirement that a child’s interests be the paramount consideration does not apply. However, Kirby J, in the High Court matter of JRN &KEN & IEG & BLG (1998) 72 ALJR 1329 emphasised the importance of the Court keeping in the front of their minds, the welfare of the child or children, in question.
The mother’s case
The mother’s case in this matter is that X is suffering ongoing psychological harm as a result of living with the father and being isolated from the mother and the maternal family, and that X is at risk of physical harm because of his constant attempts to return to the mother’s care.
She says that if the final orders are not stayed, there is a risk X will suffer irreversible harm by the time of the appeal.
The father’s case
The father’s case is that the mother and/or her family are creating this risk by empowering X to run away, including providing him with emotional and financial assistance, and otherwise failing to abide by the final orders to return X to the father’s care.
EVENTS SINCE THE MAKING OF THE FINAL ORDERS
Since the making of the final orders, X has run away from his father’s care, on my count, on at least five occasions, possibly more. Indeed, X commenced running away on the day the final orders were handed down. On that day, although arrangements were put in place for a secure changeover at the registry with a senior court child expert involved, I understand that X attempted to run away from the senior court child expert and left the court before he could be placed in the father’s car. I understand X ultimately returned to the court and went home with the father.
However, the following day, X went to school and ran back to the mother’s home. As the mother was either unable or unwilling to get X to return to the father, the matter was listed urgently before this court on 8 August 2024. At that time, a recovery order was issued but stayed pending the paternal grandparents attempting to collect X from school. I believe this led to some sort of “standoff” at the school in which X refused to go with the father for a number of hours before eventually returning with him.
As I understand it from the father, only two days later, X ran away again. On that occasion, of great concern was that his whereabouts were seemingly unknown, the police were contacted and they issued what was described as a public notice seeking information as to X’s whereabouts. I understand he was not located until the next day, and that it is still not known exactly where he was overnight that night, but he was eventually located at the home of Ms R in mid-2024, who is a friend of the mother. X was again returned to the father pursuant to the final orders.
Then in late 2024, X ran away again. This time, X took a taxi back to his mother’s home.
The matter was again listed for an urgent hearing on 4 September 2024 and a further order made for X to be returned to the father. A recovery order was issued but stayed until 8.30am the following day. On that morning, I believe X’s maternal aunt returned X to the father’s home at about 8.10 am. I believe X ran off again for a short period before returning to the father.
In late 2024, X ran away again. This time X was located by police or that the police were somehow involved. The specific details are not of great importance, save and except that X ended up at BB Hospital where he was admitted for three nights, or three days and his mental health was monitored.
X eventually went home to the father’s house three days later. I understand he agreed to back to his father’s house on the basis that Mr DD stayed at the home with the father and X. I believe Mr DD is the brother-in-law of the father in these proceedings. Mr DD remained with the father and X until late 2024 when he had to return to his other life commitments.
These events that have occurred may, to a degree, be factually in dispute and I cannot make findings of fact, but in essence, what is not in dispute is that on six occasions, maybe five depending on how you assess it, X has actively run away from his father.
Immediate concerns
There are several immediate concerns arise from X repeatedly running away from the father.
Firstly, X faces the risk of being at large in the community and being in locations unknown with persons unknown.
Secondly, is the impact of all of these events on X’s mental health.
A third concern is that X, as I understand it, has had a large number of absences from school, and at the time of this application, a decision had been made that it was better to focus on his mental health than have him attending at school.
In terms of X’s mental health, the mother relies upon an email from Dr S, who was X’s former psychologist. He gave evidence at the final hearing. This email was sent on 8 August and in that email Dr S states that:
[X] says he would rather be dead then go back to his father’s place. If he goes back, he will run away again and live on the streets and not go back to his mother’s place. If she is just going to send him back to his father’s… he says he will [self-harm] rather than go back to his father’s place. In terms of [self-harm], [X] has a plan, and he has intent to [harm] himself.
(emphasis added)
Dr S goes on to say:
It is my professional judgment that [X] is currently at high-risk for suicide and self-harm. He feels he is not safe at his father’s place, and only feels safe at his mother’s place. If he goes back to his father’s place, he is at high risk for running away again…
(emphasis added)
In terms of Dr S’s opinion, I have expressed in the past, including in my reasons for judgment, reservations about Dr S’s assessment of X. Therefore, I have had cause to treat those very alarming statements with some degree of caution in terms of how much weight should be attached. However, the father has acknowledged that X has been struggling with mental health issues, albeit his case is that X only experiences this decline when he returns from spending time with the mother and says that during periods when X has no contact with her or her family, including no electronic or phone contact, that X settles into his care. However, if there is any contact, including with the maternal family, then the situation rapidly deteriorates.
Nonetheless, the father says that he addresses the concerns about X’s mental health on each occasion. He says he has taken X to be assessed, predominately at EE Clinic, which is a general practice, but also, he has taken X to FF Hospital. He says that X has been cleared of having any serious ongoing concerns, that X has been now engaged with the Children and Youth Mental Health Service, which commenced in mid-2024, and X has also begun seeing a different counsellor at the school.
In addition, the father says that the Department of Families, Fairness and Housing have conducted an investigation, and a letter has been produced which indicates that they have no protective concerns for X in the father’s care.
DETERMINATION
Unfortunately, despite all of this intervention, X, as I have already detailed, ended up being admitted to hospital for three nights in late 2024 in relation to his deteriorating mental health.
Whilst a stay application requires the court to assess the merits of the appeal, whether it would be rendered nugatory and assess the balance of convenience going forward, in my view, the events, subsequent to the final orders have superseded that decision. Whilst the best interests of a child are not paramount on a stay application, the welfare of X must be at the forefront of my mind.
Since making the final orders, X has repeatedly run away from the father’s home and the father, on his own evidence, acknowledges that X continues to threaten to do so.
Although it was hoped that the suspension of time would enable X to settle into his father’s care without the pressures identified in the reasons for judgment, from the maternal family and others in the mother’s circle, this does not appear to have been the reality. Members of the maternal family have not seen fit to give X the space he needs, and it appears, even on the mother’s own material, that they have continued to empower X, including providing him with financial means to return to her care.
However, even if it were possible to restrain all maternal family members and other supporters of the mother from contacting X, it is likely that X would continue to vote with his feet.
In this matter, I must balance the risks to X that I have identified of ongoing harm from either running away, or due to a continued deterioration in his mental health versus the longer-term risk of psychological harm that I identified in the reasons for judgment. Having done so, I am now of the view that the immediate risk to X outweighs the longer-term concerns about his psychological well-being, and I am not satisfied any injunction I could make would ameliorate that risk.
For all the aforementioned reasons, I will stay the final orders pending the outcome of the appeal.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 2 October 2024
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