DONALDS & DONALDS (No.2)

[2021] FCCA 667

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONALDS & DONALDS (No.2) [2021] FCCA 667

Catchwords:
FAMILY LAW – Stay application – unilateral interstate relocation – pending appeal on interim orders – application for stay granted.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC106

Applicant: MR DONALDS

Respondent: MS DONALDS

File Number: MLC 11505 of 2020

Judgment of: Judge Carter

Hearing date: 2 March 2021

Date of Last Submission: 2 March 2021

Delivered at: Melbourne

Delivered on: 11 March 2021

REPRESENTATION

Solicitors for the Applicant: Mr Sam David

Respondent: In person

ORDERS

1. Order 2 of the order made 21 December 2020 be stayed pending the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Donalds & Donalds (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11505 of 2020

MR DONALDS

Applicant

And

MS DONALDS

Respondent

REASONS FOR JUDGMENT

Revised from Transcript

1. In this matter, I made interim orders that the Mother has appealed.  The Mother now seeks a stay of my orders, pending that appeal. 

2. The parties have two children, X, who will be two years old and Y, who has very recently been born in 2021, since these proceedings were issued.  The parties separated late last year while the Mother was still pregnant.  The Mother left the parties’ home in Melbourne and unilaterally relocated to New South Wales.  It is her case that she was fleeing family violence and seeking the support of her family.

3. The Father strenuously denies the allegations of the family violence.  On 21 December last year I ordered that the Mother return to Victoria with X, by 31 March 2021.  The Father and the Independent Children's Lawyer supported those orders being made.  The orders also included an order for X to have supervised time with the Father on six occasions and for that time to then progress to unsupervised time for two-hour periods.  I provided the parties with an expedited trial date on 19 June 2021 and made orders for the preparation of a family report. 

4. The Mother issued a notice of appeal on 19 January 2021.  As it is drafted, few grounds make any real sense. I will come back to that shortly. 

5. The Mother then issued an application for a stay on

   
   

   8 February 2021.  In that, she seeks to stay a number of my orders, including the order requiring her to return and also the orders in relation to X’s time with the Father, orders requiring the parties to provide their addresses to the Independent Children's Lawyer, the order that they keep each other informed as to serious illnesses or injuries as suffered by the child and also the orders for trial.  It was a little unclear when the submissions were made before me, as to precisely what orders the Mother sought to be stayed. 

6. I understand that she certainly presses the stay for the return order and the orders in relation to progression for unsupervised time. She also sought that the time for Skype be reduced from alternate days to twice per week. 

7. The Mother was provided with a list of principles that the Court has to consider when hearing a stay application. 

8. The Mother asserts that she is bona fides and has brought her appeal bona fides.  She asserts that she has no supports in Melbourne whereas she says she has substantial and significant supports of family and friends in New South Wales.  She says it will be extremely disruptive if she and the children have to return and that that would be a significant change for the children, and for X in particular. She says that changes ought to be minimised.  She says that she has an arguable case on appeal.  She reinforced that her medical conditions and her autoimmune issues are such that she says a return to Melbourne is not feasible and that her mental health diagnoses of PTSD and depression make it untenable for her to be required to return.  She says, effectively, that the children’s best interests will be met by the stay being granted. 

9. The Father opposes the stay.  He says that he is entitled to the benefits of judgment.  He says that the Mother’s appeal as drafted does not have any reasonable prospect of success and discloses no arguable case.  He says that the children will be retained in the mother’s primary care so even if a stay is not granted and they have to return, that does not include a change of residence so it would not be overly disruptive to the children. 

10. The Independent Children's Lawyer, notwithstanding having sought an order for the mother’s return, now supports a stay, with respect to the return order only. Counsel for the Independent Children’s Lawyer submitted that position was supported on the basis that an expedited trial can be accommodated and has been fixed for June this year.  Counsel for the Independent Children's Lawyer said that whilst the appeal may not be successful, it could not be described, he said, as being an unarguable case.  Counsel for the Independent Children's Lawyer emphasised the tender age of X and now young Y and the Mother’s dependence on her supports in New South Wales, as well as her medical and mental health issues and vulnerabilities. 

11. It is of course a matter of discretion whether or not to grant a stay and the principles in relation to the exercise of that discretion are well-established and set out in the Full Court decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC106.  The Mother must establish a proper basis for the stay and that is beyond merely filing an appeal.  As already alluded to, the Father is entitled to the benefit of my judgment and is entitled to presume that it is correct.  I have to consider the Mother’s bona fides and with respect to that, I note;

    a)she is not the applicant in the substantial proceedings; 

    b)that she left Victoria without notice or without warning to the father;  and

    c)that there is no evidence that she has made any efforts to comply with the order that I made for return.

12. I also note that she says that she left the State because she was fleeing domestic violence which, of course, is a matter very much in dispute in these proceedings.

13. The well known principles also include that a stay may be granted on terms fair to all the parties, which may involve weighing the balance of convenience and the parties’ competing rights.  Certainly, I note it would be extremely inconvenient for the Mother if she was required to return.  She raises issues about her housing, her supports and her treaters in the event that she was required to return.  I note that the Father says that if the stay is granted then spend time cannot occur, because he says that he has no money to travel and will be unable to travel to New South Wales to spend time with X or indeed, with Y. 

14. I have to consider whether an appeal will be rendered nugatory if a stay is not granted. This is to be taken into account as a substantial factor.  In my view, it would not be.  There is nothing that would be done by the Mother having to return that couldn’t be undone if her appeal was ultimately successful, although I do note that she says her mental health will be negatively impacted if the return order is not stayed. 

15. I have to give some consideration to the strength of the appeal on the Notice of Appeal as it is filed.  That is a document that is quite hard to follow.  It has been prepared by the Mother herself.  It contains many matters that are irrelevant.  It does not articulate very clear, formulated grounds.  There are many complaints made about counsel for the Independent Children's Lawyer.  But if one tries to distil it and to understand it as counsel for the Independent Children's Lawyer did, it appears that the Mother is saying that the decision was plainly wrong or it went beyond the bounds of the power of making a coercive order requiring the Mother to return by not taking into account relevant factors and by taking into account erroneous or irrelevant matters.  She also says that there has been a denial of natural justice. 

16. As I said, it is difficult, on the Notice of Appeal as drafted, to see exactly what it is that the Mother is asserting.  I have to determine it on the Notice of Appeal as is drafted before me, but being very generous to the Mother and accepting what she says as its highest, as was urged upon me to do by the Independent Children's Lawyer, it seems that it is possible that she may have an arguable case. 

17. I also have to take into account the desirability of limiting the frequency of any change to a child’s living arrangements.  Whilst there would not be any change of residence if a return is required and no stay granted, the Mother would have to find accommodation.  She says that would be very hard for her to locate, and that she would need to have temporary housing first before she finds a rental.  She says that she will have other difficulties because she will need to break the lease at the accommodation that she is currently in.  She says that that would be a significant change for X, including that she would also be moving away from the maternal grandmother.

18. I accept that those are changes in the child’s arrangements.  I also note that the proceedings are brought because the Mother unilaterally changed X’s place of residence. 

19. I do not know when the appeal may be heard.  There was no evidence put before me about that.  As best as I understand it there may be a directions hearing in the near future, but there are no dates that have been provided yet as to the hearing of the substantial appeal. 

20. The best interests of the children are also matters that I am to take into account and these are, of course, significant considerations.  I have already outlined much of the Mother’s submissions in this regard. 

21. I note that the Father says that if there is no return, that the children will not have time with their Father and that will deprive X the opportunity of maintaining or re-establishing his relationship with the Father and it would mean that Y will not really have the opportunity of meeting his Father or establishing any relationship with him.  However, allowing the Mother to remain would mean that she would be able to remain supported by her family and the Independent Children's Lawyer urges me to grant the stay on that basis. 

22. During the course of submissions, I should also say that there was some reference by the Mother to concerns that I had been biased against her, as had the previous counsel for the Independent Children's Lawyer. However that matter was not really taken any further.

23. As I said, although many of the grounds of appeal as drafted are entirely without merit, if some of the grounds are interpreted as generously as possible, it may be that the Mother is able to articulate an arguable case on appeal with respect to the exercise of the coercive power to require her to return.  In those circumstances, I am prepared to stay only the operation of order 2 of my orders made on 21 December 2020.  I otherwise do not intend to make further stay orders and I note that I am entitled to grant a stay on terms that I consider fair to all of the parties.  That means that the Mother and the children can remain in New South Wales, pending the determination of the appeal. 

24. As I said, I am not changing or staying the other orders and Skype will remain each alternate day at this stage.  X is a young child;  he does need frequent time for him to maintain and build a relationship with the father.  I appreciate that the Mother says that that is quite invasive - and it may well be - but given that it is unlikely that there will be any face-to-face time, it is imperative that the electronic communication remains frequent.  I will otherwise leave the matter listed for trial before me. 

25. I hope that the Father is able to travel to Suburb D to see the children.  That would be obviously, on the supervised basis in the meantime. I note that the borders are now open between New South Wales and Victoria and so there are no COVID restrictions on travel, which certainly were in place or about to come into place in December last year.  So subject to the question of finance, the Father would be able to travel to New South Wales to spend time. 

26. For these reasons, I will stay order number 2 of my orders made on 21 December 2020, pending the appeal.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Carter

Associate: 

Date: 1 April 2021