DAUTRY & WEMPLE

Case [2015] FCCA 943

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAUTRY & WEMPLE [2015] FCCA 943
Catchwords:
FAMILY LAW – Stay application – basic principles – long history of litigation – very strained parental relationship – final orders to change child’s residence made only in December 2014 – to change the child’s residence again would not be in her best interests – no evidence from the Mother to support the stay application – no legal or factual error referred to by Mother in support of application – Mother ignored (or did not refer to) relevant evidence about child attending upon a child psychologist after having been notified by the Father’s solicitor of this fact – independent report from child’s school that child is doing well when Mother complains of a range of difficulties for the child – application refused.

Adamson v Adamson (2015) 51 Fam LR 626
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Gronow v Gronow (1979) 144 CLR 513

House v R (1936) 55 CLR 499
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Wemple & Dautry [2013] FCCA 2376
Wemple & Dautry [2014] FCCA 401
Wemple & Dautry (No.2) [2014] FCCA 2847
Applicant: MS DAUTRY
Respondent: MR WEMPLE
File Number: CAC 1472 of 2013
Judgment of: Judge Neville
Hearing date: 23 March 2015
Date of Last Submission: 23 March 2015
Delivered at: Canberra
Delivered on: 17 April 2015

REPRESENTATION

Solicitors for the Applicant: Self represented
Solicitors for the Respondent: Farrar Gesini Dunn
Solicitors for the Independent Children's Lawyer: Yeend & Associates

ORDERS

  1. The Mother’s Application for a Stay, filed 27th February 2015, be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1472 of 2013

MS DAUTRY

Applicant

And

MR WEMPLE

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The Applicant Mother has appealed a significant number of orders that were made in consequence of a judgment that was delivered on 18th December 2014 (“the December 2014 orders”).

  2. Although the detailed reasons were provided last December, and the Notice of Appeal filed on 19th January 2015, the Mother’s current Application for a Stay of the orders under appeal was only filed on 27th February 2015.  The reasons for the delay in filing the stay application are not relevantly explained.  That being said, in my view, not a great deal turns on the delay.

  3. For completeness, there is another Application formally before the Court, filed by the Mother on 20th March 2015, which relates to the child the subject of proceedings, travelling overseas with her Mother.  That Application will be dealt with by another Judge, who will also deal with the unresolved property issues between the parties.  There is a factual matter or two that relates to the travel Application that is somewhat relevant to the current matter before me, which I will mention in due course.

  4. The Father opposed the Mother’s Stay…

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AGLC
DAUTRY & WEMPLE [2015] FCCA 943
Case
[2015] FCCA 943
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Mother for a stay of orders made by the court. The application was heard by Judge Neville.

The primary legal issue before the court was whether to grant the Mother's application for a stay of the existing orders. This required the court to consider the principles governing applications for stays, particularly in the context of parenting proceedings, and to assess the merits of the Mother's request against these principles.

Judge Neville's reasoning was informed by the principles established in *Aldridge & Keaton (Stay Appeal)*, which were themselves derived from established case law on appellate interference with discretionary judgments and the granting of stays. The court noted that the onus was on the applicant to establish a proper basis for the stay, but not necessarily "special" or "exceptional" circumstances. Key considerations included the entitlement of a party to the benefit of a judgment, the insufficiency of a mere appeal filing to warrant a stay, the bona fides of the applicant, and the weighing of competing rights and the balance of convenience. The court also highlighted the importance of assessing the risk of the appeal being rendered nugatory, the arguable strength of the appeal, the desirability of stability in a child's living arrangements, the timeframe for the appeal, and, crucially, the best interests of the child. The judge specifically addressed several grounds of appeal, noting that many related to the weight of evidence and the exercise of discretion, and expressed confusion regarding one particular ground of appeal.

The court dismissed the Mother's Application for a Stay.

Orders

Orders of the court

1.

The Mother’s Application for a Stay, filed 27th February 2015, be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For current purposes, it is sufficient to note the following from the Full Court’s decision in Aldridge & Keaton (Stay Appeal), to which I have earlier referred. At [17] – [18], the Court said:[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;· a person who has obtained a judgment is entitled to the benefit of that judgment;· a person who has obtained a judgment is entitled to presume the judgment is correct;· the mere filing of an appeal is insufficient to grant a stay;· the bona fides of the applicant;· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;· the desirability of limiting the frequency of any change in a child’s living arrangements;· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and· the best interests of the child the subject of the proceedings are a significant consideration. I emphasise the discretionary nature of the judgment under appeal particularly because, of the substantive grounds of appeal (grounds 7 – 21), Grounds 7, 8, 10, 11, 14, 15, 19, 20 and 21 all refer specifically to either the weight given to certain evidence, and/or the Court’s exercise of discretion in the light of that evidence. Ground 22 is somewhat curiously framed. It states: “The Grounds of Appeal have been prepared without access to the Transcript of the proceedings and it may be necessary to amend such Grounds upon these Reasons for Judgment becoming available.” I confess to being unclear as to what this Ground says or means. The Mother clearly has a copy of the reasons for judgment that were delivered on 18th December 2014. I will say no more about this Ground of Appeal.

Ratio Decidendi

Legal Principle Established

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