Earles and Highsmith (No 2)
[2012] FamCA 947
•17 October 2012
FAMILY COURT OF AUSTRALIA
| EARLES & HIGHSMITH (NO 2) | [2012] FamCA 947 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application by mother to stay substantive Orders which in effect change the residence of the child to live with the father - Where appeal filed by mother against those substantive Orders – Where child missing since substantive Orders – Where the mother gives evidence to the Court that she believes the child is with the maternal grandmother but is not aware of their whereabouts – Where the status quo could not be restored in the circumstances in the event the stay was granted – Application for stay dismissed |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Clemett & Clemett (1981) FLC 91-013 CSN & JBN (1998) FLC 92-833; 24 Fam LR 174; [1998] FamCA 1766 |
| APPLICANT: | Ms Earles |
| RESPONDENT: | Mr Highsmith |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Soliman |
| FILE NUMBER: | PAC | 5328 | of | 2008 |
| DATE DELIVERED: | 17 October 2012 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 17 October 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr de Robillard |
| SOLICITOR FOR THE APPLICANT: | Mother in person |
| COUNSEL FOR THE RESPONDENT: | Mr Kenny |
| SOLICITOR FOR THE RESPONDENT: | Father in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms De Vere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Soliman |
Orders
That the mother is to write down her mobile numbers, to be held by the Court for the purpose of assisting in the location of the subject child. Such numbers are not to be provided to the father.
That the mother’s mobile phone (2nd number) is to be handed to Mr Kenny to inspect the call log of that phone.
Later
That the Application for Stay filed by the mother on 10 October 2012 is hereby dismissed.
That I reserve the applicant and the respondent’s costs in relation to the Stay Application. That issue is to be dealt with on the next occasion that matter is before the Court.
That the mother’s Application filed 16 October 2012 to seek to discharge the Independent Children’s Lawyer is stood over to 2.15 pm on Tuesday 13 November 2012.
That the father’s Application filed 12 October 2012 for location and the father’s costs application made today is stood over to 2.15 pm on Tuesday 30 October 2012.
That I reserve the costs of the Independent Children’s Lawyer and the mother today in respect of the application for discharge of the Independent Children’s Lawyer including the costs of the Independent Children’s Lawyer of this day.
That the applicant mother shall file and serve all material upon which she would seek to rely in relation to the application to discharge the Independent Children’s Lawyer by close of business on Wednesday 24 October 2012. The Independent Children’s Lawyer shall file and serve any material upon which she seeks to rely by close of business on Thursday 8 November 2012.
That the mother’s mobile telephone, marked MFI1 in today’s proceedings, shall be provided to Mr De Robillard for him to take that phone directly to the Australian Federal Police. The Australian Federal Police shall be permitted to inspect that phone seeking to retrieve any information that may assist in the recovery of the subject child. Such telephone is not to be provided to the mother alone and shall be retained by the Australian Federal Police for forty-eight (48) hours, and thereafter be returned to Mr De Robillard.
That leave is granted to Mr Kenny to transmit to the Australian Federal Police, not in the hearing of the father, the telephone numbers provided to the Court today by the mother.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Earles & Highsmith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5328 of 2008
| Ms Earles |
Applicant
And
| Mr Highsmith |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Before me for determination is an Application in a Case filed by the mother on 10 October 2012 in which she seeks to stay Orders that I made on 8 October 2012. On 8 October 2012, I delivered a lengthy reserved Judgment and made a considerable number of Orders in conjunction with that Judgment. The effect of those Orders were to change the residence of the child to be with the father and to make provision for the mother to spend time with the child. I endeavoured to set out as fully as I could my reasons for doing that which I did.
The mother now says that those Orders should be stayed, pending the determination of her appeal against those Orders. I am satisfied that an appeal has been lodged, so as to bring into play rule 22 of the Family Law Rules2004 (Cth). Rule 22 is in these terms:-
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3)An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate or Magistrate who made the order under appeal.
At the commencement of the hearing today, I requested that the counsel for the mother provide to father’s legal representatives a list of the affidavit material which would be relied upon in relation to this application. The affidavit which was identified is the affidavit sworn by the mother on 9 October 2012 and filed on 10 October. In that, the mother says briefly that I handed down final Orders on 8 October 2012. She goes on to make reference to a report of Dr K, which she annexes. She says that my Orders necessitate significant changes in the child’s life and are inconsistent with Dr K’s report.
The Notice of Appeal in its present form is, in my view, inadequate to achieve the relief sought by the mother. That, however, is a matter for other judge or judges in another place.
The granting of a stay following the lodgement of an appeal has been examined in a number of cases. For example, in Clemett & Clemett[1] the following passage appears at 582:-
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.
[1] (1981) FLC 91-013
That line of reasoning was clearly followed by their Honours of the Full Court of the Family Court of Australia in CSN & JBN[2]. Relying upon those matters, even if I were persuaded to grant the stay, I have no satisfactory evidence before me that would indicate that the status quo that existed at the time of my Orders of 8 October 2012, that is to say the child living with the mother and spending time with the father, would be restored or put in place.
[2] (1998) FLC 92-833; 24 Fam LR 174; [1998] FamCA 1766
What has now happened in this case, in circumstances which I confess give rise to very real concern, are that the child has been taken – apparently by her maternal grandmother - to some place nobody knows where. The mother says she has no idea where her mother is, but she knows the child is safe.
Mr de Robillard for the mother puts to me with some force that I cannot hold this situation against the mother. Aspects of the mother’s evidence that I have heard today cause me concern in respect of this submission. On 8 October 2012, I asked the mother where the child was, prior to making my Orders. The mother told me that she expected that the child was with her mother, being taken to preschool. The child did not arrive at preschool that day. It became apparent that the mother had, the previous Friday, told the preschool the child would not be attending.
The mother then sought to explain this by saying over the weekend she had looked at some paperwork and had found that the child was due to attend what was described as an excursion to the primary school which the child might attend in the year 2013. Accordingly, the mother says she reversed her decision not to have the child attend preschool on 8 October 2012. Somehow, she says, her mother must have found out what the result of my Judgment was or was going to be, and acted unilaterally, and thereafter took the child away to protect her from what she apparently considered to be a significant risk of harm if the child was to go into the father’s primary care.
That explanation I find unacceptable. The mother has made efforts, she says, to contact her mother. Mr de Robillard in cross-examination of the father sought to establish that the father had not done all he could do to try and locate the child. There is no doubt that his efforts, such as his involvement with the police, far outstrip any efforts made by the mother to locate the child.
Thus, to my mind, it can only be seen that the Court is being told that the child is going to be kept away, so as to avoid the effect of my Orders of 8 October 2012, that is, that she live with the father, at any cost.
Certainly, what is apparent from the material I have heard is that the mother’s case is that if a stay order is made, people will ring around – her father, her sister, her brother – and the grandmother will come out of hiding with the child. She (the mother) has made it clear that she believes that the grandmother will not come back until she is satisfied the child is safe.
So far as I am concerned, that amounts to a party or persons supporting a party seeking to impose their will and their position upon the Court, based solely on their own wishes and beliefs. I will not be a party to that. I had originally indicated that I had concerns as to whether or not an application such as this in these circumstances ought even be entertained. I am satisfied, however, that the appropriate method of dealing with it is, as I am now doing, to deliver Judgment and either allow the stay or refuse it.
Leaving everything else to one side, the stay cannot, without intervening acts over which these parties have no control, result in the status quo which existed as at 8 October 2012 being reinstated.
In all the circumstances of this case, I dismiss the mother’s application for stay.
I reserve the costs of both parties in relation to the stay application to be dealt with on the next occasion that the matter is before the Court.
I stand over the application by the mother for the discharge of the Independent Children’s Lawyer to 2.15 pm on 13 November 2012.
I stand over the father’s Application in a Case filed 12 October 2012 in relation to publication orders to 30 October 2012. I stand over the father’s application for costs in relation to the publication issue to that day, that is, 30 October 2012.
I reserve the costs of the Independent Children’s Lawyer and the mother in respect of the application for the discharge of the Independent Children’s Lawyer, including costs incurred by the Independent Children’s Lawyer this day.
In relation to that application, I order that the mother file and serve all material upon which she seeks to rely by close of business on Wednesday 24 October 2012, and the respondent Independent Children’s Lawyer then file and serve any material upon which she seeks to rely by close of business on Thursday 8 November 2012.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 17 October 2012.
Legal Associate:
Date: 19 November 2012
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