Davidson and Davidson (No 2)

[2010] FamCA 7

FAMILY COURT OF AUSTRALIA

DAVIDSON & DAVIDSON (NO. 2) [2010] FamCA 7

FAMILY LAW  -  CHILDREN  -  final parenting orders made  -  application for a stay  -  application dismissed

Family Law Act 1975 (Cth) ss 94, 43(1)(c)
Family Law Rules 2004 Chapter 22.

Kelly & Kelly (1981) FLC 91-007
Clemett & Clemett (1981) FLC 91-013
Sampson & Hartnett [2007] FamCA 732

HUSBAND: Mr Davidson

WIFE: Ms Davidson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2243 of 2007

DATE DELIVERED: 14 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 14 January 2010

REPRESENTATION

SOLICITOR FOR THE HUSBAND:

Ms. Taefi,

Richard Calley Family Lawyers

COUNSEL FOR THE WIFE: Ms. Agresta

SOLICITOR FOR THE WIFE: Schetzer Constantinou

INDEPENDENT CHILDREN’S LAWYER

Ms. Jenkins,

Victoria Legal Aid

Orders

1. That the wife’s application for a stay of the orders made this day is dismissed. 

2. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2243 of 2007

MR DAVIDSON

Husband

And

MS DAVIDSON

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The mother seeks a stay of the parenting orders made earlier today.  No Notice of Appeal has been filed.  Having regard to the length of the judgment published this morning, neither the mother nor her legal advisers have had an opportunity to read it carefully. 

2. Section 94 of the Family Law Act 1975 provides that an appeal lies to a Full Court of the Family Court of Australia from a decree of the Family Court of Australia such as the parenting orders made this morning. A Notice of Appeal must be filed within 28 days of the date on which the order was pronounced by the judge or such further time as a judge directs.

3. As no Notice of Appeal has yet been filed, the court cannot know the grounds of the appeal. 

4. The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from. An appeal is “started” by filing a Notice of Appeal; once started, a party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal relates. An application for a stay is heard by the judge who made the order under appeal, unless he or she is unavailable, in which case it can be listed before another judicial officer. See generally Chapter 22 of the Family Law Rules 2004.

5. Although a Notice of Appeal has not been filed it is practical to dispense with the operation of the Family Law Rules 2004 to the extent necessary for the stay application to be heard now. If the court determines a stay is appropriate, orders could provide for the filing of a Notice of Appeal within a short period and for any stay ordered to lapse if that were not done.

6. Orders take effect unless a stay is granted;  as noted, the filing of a Notice of Appeal does not operate as a stay.  An order for a stay is wholly discretionally;  the discretion must be exercised judicially.  The circumstances that will justify an order for a stay will vary from case to case. 

7. In Kelly & Kelly (1981) FLC 91-007 Fogarty J. noted (at 76,104) that a stay is not granted as a matter of course and that appropriate circumstances must be shown. In the same year, in Clemett & Clemett (1981) FLC 91-013 (at 76,175) Nygh J. stressed the importance of the welfare of the child outweighing the often quoted principle that “a party is entitled to the fruits of the litigation”.

8. That is a reference to what has sometimes been said to be the strongest ground to support a stay, being a real risk that to deny a stay would render a successful appeal nugatory or make it impossible or impractical to restore the existing situation.  This generally has more application in financial matters but can also be relevant in children’s cases. 

9. There is no doubt that the best interests of children need to be taken into account.  Section 43(1)(c) of the Act requires the court to have regard to the need to protect the rights of children and to promote their welfare in any exercise of its jurisdiction.  Similarly, the court must have regard to the need to ensure safety from family violence.  Other matters to which the court must have regard are the grounds and merits of the appeal, any undue delay between the time the original order was made and the filing of the application for a stay, the bona fides of the applicant for the stay and the length of time it would take for the appeal to be heard. 

10. I have said before that the trial judge is not in the best position to consider the merits of an appeal.  In this case the prospective appellant and her legal advisers have not had an opportunity to read the judgment and counsel is thus not in a position to say anything about the grounds, save that her client is dissatisfied with the outcome.  It is prudent for the court to proceed on the basis an appeal, if filed, may have merit. 

11. Clearly, the stay application has been brought swiftly, so swiftly that a Notice of Appeal has not yet been filed. 

12. The ICL opposes the granting of a stay.  In the course of her submission it was put that an appeal might not be heard by the Full Court for 18 months.  The court needs to take into account the potential for an application for expedition of an appeal and that the estimate of 18 months may be a significant over-statement.  Nevertheless, prudence dictates that the court should proceed on the basis an appeal may not be heard for some time. 

13. At the heart of the mother’s application for a stay is the fact that the orders made this morning implement what has been described as a fairly dramatic change in the children’s lives.  It is her submission that such a change should not be made until the Full Court has had a chance to consider her appeal.  Much of what was said by counsel for the mother is unexceptional.  The children have lived with their mother all their lives.  Their parents separated when they were only seven months old and they turned six in October 2009.  Save for a meeting with the father in August 2009, in the course of preparation of the family report, they have not seen their father since late September 2008.  Prior to that, they had regular and frequent contact with him and with members of his family.

14. The mother lives in a community of like-minded people in central Victoria and the children have lived there since 2005.  She and the children share a house but it is one of a cluster or group of houses which forms part of the wider community.  The father lives in a community where the living arrangements are more consistent with the expression “nuclear” families.  The move to the father’s care ordered this morning would involve the children living alone with him on a small farm property near Albury, in close proximity to his parents and his brother.   

15. The evidence does not establish that the children are not familiar with the father’s family, as submitted by counsel for the mother, or that they are “strangers to their father”.  They spent regular and frequent time with him at Albury until September 2008 and the strength of their relationship was demonstrated by their warm interaction with him when they met with the family consultant in August 2009.  These aspects of the mother’s submission are consistent with the court’s finding that the mother cannot acknowledge that the children have a loving relationship with their father and maintains her conviction that they are fearful of him in the face of evidence from objective third parties to the contrary. 

16. Although not expressly stated by counsel for the mother, I proceed on the basis she also relies on the fact that the children are about to commence school.  She would say that if they start school in the central Victoria area, and her appeal is successful, they will not have to change schools.  As she hopes or anticipates her appeal will be successful, it would be her submission that a retention of the status quo would maximise the potential for the children to avoid a change of school in their prep year.

17. The mother would also say that if the children start school in the central Victoria area it is probable that other children from their 2009 pre-school will attend and this would make the transition to school easier for them. 

1. Conversely, the same argument was made by the father.  It was put that the children should be allowed to start school in Albury.  As the father would no doubt hope or anticipate that any appeal is unsuccessful, he would say a move now limits the potential for a change of school later. 

2. When the trial commenced, the mother’s application was that the father spend no time with the children.  She was the respondent.  When her case was opened, counsel made it clear that that was no longer her application.  This is not a case where the mother’s application was that the father spend no time with the children.  In final submissions, the mother proposed an intervention by a psychologist or like professional to make an assessment of the parents’ capacity to work together to reintroduce the children to the father so they could have regular and frequent time with him, whilst remaining living with her. 

3. Further, in final submissions counsel for the mother conceded that the evidence before the court was insufficient to establish an unacceptable risk that the children would be abused in the father’s care by him or other members of his family and (inherent in the initial concession) insufficient to establish the abuse alleged. 

4. This is not a case where the present circumstances of the children could be described as “satisfactory”, an important issue as noted by the Full Court in Sampson & Hartnett [2007] FamCA 732. As the Full Court noted, at [35], a distinction needs to be drawn :

   . . . between satisfactory in the sense of less than ideal, which was clearly the situation in this case on the one hand and unsatisfactory in the sense of involving children and the risk of harm or abuse, if the orders of the trial judge are not implemented.

5. The mother has conceded that there is not an unacceptable risk of abuse in the father’s home.  The court has found (and no doubt this finding will be subject to appeal) that the children are at risk of emotional abuse in their mother’s care and that aspects of her parenting are exposing them to emotional abuse, which is impacting adversely on them.  The family reporter’s opinion was that the mother provides a contradictory and profoundly confusing family experience for the children.  She was adamant the children’s experience must change.

6. The mother’s own evidence is of the children being very disturbed and almost impossible to manage when they are with her:  the court found that if her evidence was factually based, the household must be chaotic and her existence, and that of the children, miserable. 

7. When considering where the best interests of the children lie, the various matters to which I have referred need to be taken into account.  In reaching my decision I place most weight on the best interests of the children and proceed on the basis there may be merit in an appeal.  Balancing these and the other factors to which I have referred, I am not satisfied a stay is warranted.  The application for a stay will be dismissed. 

I certify that the preceding
24  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of            2010.

…………………………………………
Associate.