EASTWOOD & JARDEN

[2020] FamCA 380

FAMILY COURT OF AUSTRALIA

EASTWOOD & JARDEN [2020] FamCA 380

FAMILY LAW – Parenting – Application to stay interim orders pending appeal – Where interim orders were made in April 2020 which provided for the child to spend supervised time with the respondent – Where any adverse consequences for the child of losing a relationship with the respondent following final orders are significantly less than being deprived of a relationship pending final orders – Where the circumstances of the child are not presently satisfactory – Application dismissed.

Family Law Rules 2004 (Cth) r 22.11

Clemett & Clemett (1981) FLC 91-013; [1980] FamCA90

APPLICANT: Ms Eastwood

RESPONDENT: Ms Jarden

FILE NUMBER: NCC 3339 of 2019

DATE DELIVERED: 20 May 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Cooney Harvey Doney

SOLICITOR ADVOCATE FOR THE

RESPONDENT:

Ms Callander

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

Orders

1. That the Application in a Case (Stay) filed 7 April 2020 is dismissed.

2. The costs of the respondent of the Application for Stay are reserved to a trial or dismissed if the Appeal is successful.

3. That the Response to the Application in a Case (Stay) filed 5 May 2020 is otherwise 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 Eastwood & Jarden 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: NCC 3339 of 2019

Ms Eastwood

Applicant

And

Ms Jarden

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for certain orders made by this Court on 1 April 2020 (Orders 1 to 5 inclusive) to be stayed.

2. The Applicant is Ms Eastwood.

3. The Respondent to the application is Ms Jarden. Ms Jarden seeks dismissal of the application and for her costs to be paid.

4. The orders sought to be stayed are as follows:

   [1]Pursuant to s 65C(c) of the Family Law Act 1975 (Cth) the Court declares that the Applicant Ms Jarden (“Ms Jarden”) is a person concerned with the care, welfare or development of the child X born … 2019 (“the child”).

   [2]Each party shall complete the intake process for attendance at the B Contact Centre C Town (or such other centre as agreed) and do all acts and things otherwise required for the attendance of themselves and the child at the centre.

   [3]The child shall spend time with Ms Jarden at a contact centre, and failing agreement otherwise at B Contact Centre C Town, or through private supervision as agreed between the parties as follows:

   (a)For one hour on each of two consecutive weeks commencing in the week starting Monday 6 April 2020;

   (b)Thereafter for two hours on one day each week, commencing in the week starting Monday 20 April 2020.

   [4]The Respondent Ms Eastwood shall ensure that the child is taken to and collected from the contact centre or any private supervision arrangement on each occasion as directed by the centre as to times.

   [5]This matter is listed before the Honourable Justice Cleary for a Trial Management Hearing at 10.00 am on Thursday 28 May 2020.

5. Ms Eastwood lodged a Notice of Appeal against the orders on 6 April 2020.  She did so expeditiously as soon as the settled reasons were made available to her lawyers.

6. The five appeal grounds relate to a declaration pursuant to s 65C(c) of the Family Law Act 1975 (Cth). This Court found that Ms Jarden was a person concerned with the care, welfare or development of the subject child and could therefore apply for parenting orders.

7. There is no challenge to the actual parenting orders made, but implicitly there is a challenge to all and any parenting orders being made.

8. On 29 April 2020 Ms Eastwood made an application for expedition of the appeal. That application was dismissed on that day on the basis that the grounds did not compel an expedited hearing.

9. I accept the submission of counsel for Ms Eastwood that the outcome of the expedition application should not persuade this Court that the appellant does not have an arguable case.

Evidence

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

   The Applicant

   (a)Application in a Case filed 7/04/2020;

   (b)Affidavit of Ms Eastwood filed 6/04/2020;

   (c)Notice of Appeal;[1]

   (d)Orders of 29/04/2020 of the Full Court re: Expedition;

   (e)Reasons of her Honour Justice Ryan sitting in the Appellate jurisdiction.

   The Respondent

   (f)Response to an Application in a Case filed 5/05/2020;

   (g)Affidavit of Ms Jarden filed 21/04/2020;

   [1] Exhibit 1.

The Law

1. The filing of a Notice of Appeal does not stay the operation or enforcement of the order of appeal unless otherwise provided for by legislative provision.[2]

   [2] Rule 22.11 of the Family Law Rules 2004.

2. The applicant for a stay carries the onus.

For the Applicant – Ms Eastwood

1. The applicant was well aware that the 1 April 2020 orders were operative unless stayed.

2. She complied with the order to undertake the intake process at B Contact Centre. 

3. Lawyers for the applicant moved swiftly to file an application for stay.

The child as an affected third party

1. Authorities from the commencement of this Court have averted to the special considerations for children when a stay of orders is sought. The decision in Clemett & Clemett (1981) FLC 91-013 highlighted the need to avoid frequent changes in custodial arrangements.

2. The following passage from that decision raises a matter relevant here:

   If the appeal appears to be based on substantial grounds and is not a mere delaying tactic if it can be dealt with in 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 time.

3. I consider that the present circumstances of the child are not satisfactory.

4. The child had a short lived relationship with Ms Jarden between birth in April 2019 and August 2019. Thereafter all contact between himself and Ms Jarden ceased. That was the decision of Ms Eastwood.

5. In October 2019 Ms Jarden moved swiftly to make an application for parenting orders.

6. Now seven months later the child has had no contact with Ms Jarden at all. The child was not present at the Child and Parents Issue Assessment in February 2020.

7. Counsel for Ms Eastwood submitted that there was no disadvantage to the child in spending no time with Ms Jarden because he would likely not recognise her; the relationship having fallen away.

8. In my view it is quite unsatisfactory, the child having lost the relationship, for that situation to be prolonged until an appeal has been heard and determined and a trial, if there is one, has been conducted.

9. Of course it may be, as the solicitor for Ms Jarden conceded, that the Appellate Court ultimately finds that Ms Jarden was no more than a former girlfriend and not a person concerned with the care, welfare or development of the child.

10. If the appeal is unsuccessful, and a trial proceeds, the findings may be that the parties were not in a de facto relationship, that Ms Jarden is not a parent. It could be that she is found to be a parent by law but no parenting orders should be made. It is also possible that findings will be otherwise. The 1 April 2020 orders represent a point of balance.

11. If the orders are stayed, the opportunity for the child to know and be familiar with Ms Jarden now while he is an infant, would be lost.

12. The early years of attachment may have passed before the opportunity to create the bond of either parent and child or the attachment of the child to a caring former partner of his mother, which he might have had.

13. Ms Jarden is entitled to the benefit of the judgment of 1 April 2020.  Ms Jarden made her application on the premise of being a parent. She sought substantial time.

14. The 1 April 2020 orders for time were aptly described by the solicitor for Ms Jarden as conservative.  The orders for two periods of one hour per week and thereafter weekly two hour visits, supervised, merely preserve the possibility of a deeper relationship developing later by creating an affectionate relationship now.

15. Counsel for Ms Eastwood submitted that there was no urgency in creating a relationship between Ms Jarden and the child “he’s only one year old.” The urgency arises in my view from the fact of his very young age. 

16. I accept the submission on behalf of Ms Jarden that many people such as nannies, friends, preschool teachers, travelling relatives, come and go in the life of a young child without adverse effect if properly managed. The loss of the relationship could be managed without distress for the child.

17. If future findings favour Ms Eastwood there is possible adverse consequences for the child of losing the relationship with Ms Jarden developed through two hours per week over a period of time. 

18. That detriment is significantly less than being deprived of the opportunity of having known her at all, if the findings are positive to Ms Jarden in due course.

Conclusion

1. Accordingly, the presumption of the decision under challenge being correct, should not be rebutted in this matter. 

2. For these reasons I decline to grant a stay and dismiss the application.

3. Costs sought by Ms Jarden are reserved to the trial, or in the event of a successful appeal, are dismissed.

4. Orders are made accordingly.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 May 2020.

Associate:

Date:  20 May 2020