Dent and Bishop

[2017] FamCA 81

FAMILY COURT OF AUSTRALIA

DENT & BISHOP [2017] FamCA 81

FAMILY LAW – STAY APPLICATION – Where the mother seeks a stay of final parenting orders – Where the mother has lodged an appeal – Where the final orders provided for no contact with the mother – Where the effective orders if the stay was granted would result in the child living with the father and spending time with the mother – Application of the authority of Clemett & Clemett (1981) FLC-91-013 – Decided changes in the child’s living arrangements should be minimised – Ordered the mother’s application is dismissed

Family Law Act 1975 (Cth), ss 60CC, 64B

Clemett & Clemett (1981) FLC-91-013

APPLICANT: Ms Dent

RESPONDENT: Mr Bishop

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

FILE NUMBER: (P)NCC 2650 of 2014

DATE DELIVERED: 6 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 6 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Michelle Thomas Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

Orders

1. The Application in a Case filed by the mother on 9 January 2017 for a stay of the Orders made on 6 December 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dent & Bishop has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 2650/2014

Ms Dent

Applicant

And

Mr Bishop

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. By an Application in a Case filed 9 January 2017, Ms Dent, the mother of the five year old subject child, B, applies for a stay of final parenting orders made by me on 6 December 2016. The application was made within time. The Appeal by the mother was filed on 23 December 2016.

2. The mother has today represented herself.

3. The Respondent father by his Response to an Application in a Case, e-filed on 25 January 2017, seeks dismissal of the stay application.

4. The father is represented by his solicitor today. The Independent Children’s Lawyer (“ICL”) was unable to be present. By prior arrangement, the position of the ICL in relation to the stay was communicated on her behalf by the solicitor for the father. That position was that the stay be dismissed.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Mother

   (a)Application in a Case filed 9/01/2017;

   (b)Affidavits of the mother filed 9/01/2017 and 3/02/2017;

   (c)Notice of Appeal filed 23/12/2016;

   The Father

   (d)Response to an Application in a Case filed 25/01/2017;

   (e)Affidavit of the father filed 25/01/2017;

   Reasons for Judgments

   (f)Reasons for Judgment dated 5/12/2016;

   (g)Reasons for Judgment dated 6/12/2016.

Considerations

1. A stay of orders is not granted lightly or as a matter of course. The onus rests on the Applicant for the stay. Some matters have been identified in the case law, but the criteria for a stay are not defined. Some of those matters which should be considered are as follows:  whether refusing a stay would render an appeal nugatory, meaning that there would be no point to the appeal if the stay was refused. I do not consider that that is the case here.

2. In the event that a stay was granted, the previous operative orders of October 2015 would apply. The child would continue to live with his father. The father would continue to have sole parental responsibility. But of course, there would then be provision for time between the child and the mother. In the event the appeal was successful that would have meant a period of time of no contact between the mother and child, pursuant to the orders but that does not amount to making the appeal pointless unless the stay is granted.

3. The next consideration is the entitlement of parties to a judgment to have the benefits of the orders. Certainly in this case, the father has not appealed the orders and is satisfied that they are in the best interests of the child.

4. Next is hardship that might be caused by granting the stay, and also by refusing the stay. I accept that the mother through her submissions has identified her perception of herself as a loving mother who would continue to bring a benefit to the child if she remained involved in his life. It will continue to be hard for her, as no doubt the final orders were, if a stay is not granted. There is also hardship caused to the father if a stay is granted. Arrangements have been put in place for the subject child to start school and to participate in a variety of medical and therapeutic interventions as he has in the past. There would undoubtedly be disruption to that if a stay was granted. The orders that would then apply were operative when the child was not at school. There would be adjustments, a return to changeovers in contentious circumstances, at a police station at best. So there is hardship for either way.

5. The next matter is the merits of the appeal. I have looked at the appeal document. There are grounds in relation to natural justice, it may well be that the mother struggles with those. Her assertion that she was denied the opportunity for a hearing is not consistent with the evidence; the medical certificate she put forward was considered to be more in the nature of a letter of support rather than identifying a history of attendance or a particular condition and its nature. The mother was in the registry on the day when the hearing began but left after delivering a further document. There was no affidavit filed and no draft affidavit served. There was no evidence put before the Court by the mother in that way.

6. There is also difficulty for the mother in her appeal in relation to taking the child back to live with her. He has lived with his father for almost four years, and the arrangement came about initially by consent, although the mother later took a different view.

7. At five and a half, the child has been living with his father for almost the last four of those years.

8. The next factor is the delay in the disposition of the appeal. That is an unknown in these proceedings.

9. In addition to those traditional factors, there is the authority in the decision in Clemett & Clemett (1981) FLC-91-013, which urged judges to avoid frequent changes in custodial arrangements for children. The phrase “custodial arrangements” in 1980 conveyed both where a child lived and how they spent time, before that terminology changed.

10. I do take into account the fact that if this stay was granted, the previous operative orders would see a resumption of time, although it could not be exactly as those orders provided, with the possibility that the appeal being unsuccessful, that time would cease again.

11. One of the reasons given by the Family Consultant in the hearing before me for not making an order for contact was that the child would become more distressed by the possibility of time taking place if it then did not; another reason being disruptive conduct around changeovers.

12. In those circumstances, I very much take into account the disruption to this little boy, with all his special needs, of a resumption of time only for that time to cease again, which is a possibility, at least, in these circumstances.

13. I should say that, from the bar table, allegations were raised about the recent conduct of the mother “flying close to the current orders being breached”. The mother immediately denied any wrongdoing in that regard. I have no evidence about those matters before me, simply assertions, and no basis for determining those matters and I do not take them into account.

14. To grant the stay would be to restore the interim orders of 20 October 2015, as stated but those orders were made prior to interviews with Dr D, the Family Consultant; prior to evidence arising from the Federal Circuit Court in relation to aspects of the mother’s behaviour with her youngest child from her first marriage; and prior to the child starting school, which clashes with mid-week arrangements in those orders. The mother has indicated that she would be prepared to adjust those orders to meet the child being at school, however, it would mean the mother’s attendance at school or the child attending at a police station if the mother’s suggestion was taken up.

Conclusion

1. For all of those reasons, particularly in relation to the impact on the child, the impracticability of re-implementing previous interim orders, the significant matter of the need for the child is to maintain stability. I decline the stay.

2. An order is made accordingly.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 February 2017.

Associate: 

Date:  21 February 2017