EDDY & BERRY

[2015] FamCA 282

FAMILY COURT OF AUSTRALIA

EDDY & BERRY [2015] FamCA 282

FAMILY LAW – PARENTING  – STAY – Where the mother applied for a stay of orders pending the determination of her appeal– Where the orders required the mother to return the children to Sydney – Where the mother did not establish a proper basis for a stay – Where it was desirable to limit the frequency of change in the children’s arrangements – Stay application dismissed.

Family Law Act 1975 (Cth)

Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT: Ms Eddy

RESPONDENT: Mr Berry

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 4998 of 2009

DATE DELIVERED: 22 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 22 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT: Linden Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED

1. That the application of the mother, Ms Eddy, filed 16 April 2015 for a stay of the Orders made 10 April 2015 is dismissed.

2. That Order 1 made 10 April 2015 be varied by removing the words “within 5 kilometres of their previous [Suburb D] address” and inserting the words “within the catchment area for [E School]”.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eddy & Berry 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 SYDNEY

FILE NUMBER: SYC 4998  of 2009

Ms Eddy

Applicant

And

Mr Berry

Respondent

REASONS FOR JUDGMENT

1. The mother, Ms Eddy (“the mother”), applies for a stay of the orders made on 10 April 2015 (“the Orders”), requiring that she return the two children of the relationship with the father, Mr Berry (“the father”), to their former schools and a residence proximate to those schools.

2. The mother has lodged an appeal against the Orders.

3. Similar orders were made by Senior Registrar FitzGibbon (“the Senior Registrar”) on 25 February 2015 and the mother sought a review and stay of the Senior Registrar’s orders. The mother’s application for a review of the Senior Registrar’s orders came before the Court on 9 April 2015.

4. The background of the matter is traversed in the reasons for judgement delivered on 10 April 2015 and need not be repeated.

5. The Orders required the children to be returned by the mother to live in the Sydney metropolitan area, within five kilometres of their former residence in Suburb D, by Saturday 18 April 2015. The Orders also provided for the enrolment of the children in their former schools.

6. In relation to the application for the stay, the Full Court in Trahn & Long (No. 2) [2008] FamCAFC 194 said:

   38.      These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:

   ·       the onus to establish a proper basis for the  stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;

   ·       a  person who has obtained a judgment is entitled to the benefit of that judgment;

   ·       the person who has obtained a judgment is entitled to presume the judgment is correct;

   ·       the mere filing of an appeal is insufficient to ground a stay;

   ·       the bona fides of the applicant;

   ·       a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·       a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether  it will be appropriate to grant the stay;

   ·       some preliminary assessment of the strength of the proposed appeal - whether the  appellant has an arguable case;

   ·       the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·       the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and

   ·       the best interests of the child the subject of the proceedings.

7. The stay is not ordered as a matter of right and the onus is upon the applicant for the stay, in this case the mother, to establish the proper basis.

THE EVIDENCE

1. In support of her application for a stay the mother relies upon an affidavit sworn by her on 16 April 2015 where she deposes that she has not secured accommodation within five kilometres of the children’s former residence as required by the Orders. The mother deposes to her fears that C, the youngest child of the parties, will be disrupted by being re-enrolled in her former school and expresses her concerns about the children’s mental health.

2. The mother re-iterates her proposal, which was specifically rejected by the Court, that she be permitted to return to live in Suburb M or Suburb N, requiring the children to travel at least 45 minutes each way to and from school.

3. The mother filed in Court a further affidavit sworn by her on 22 April 2015.

4. The father opposes the application for a stay of the Orders and relies on an affidavit sworn by him on 21 April 2015.

5. The mother has applied for expedition of her appeal but there is no indication before me of the likely time frame for the substantive appeal to be heard.

6. Enquiries of the Appeal Division suggest that an application to expedite the mother’s appeal may be dealt with within a relatively short time but I cannot predict whether the matter will be granted expedition or, if the matter is expedited, when it will be heard.

7. The father, in his affidavit sworn on 21 April 2015, deposes that on 21 April 2015, C started school at Suburb D School (“Suburb D”). The father, the mother and C met at the school and signed the necessary enrolment forms.

8. B, the parties’ oldest child, has not started at E School (“E School”).

9. It is the father’s evidence that, in order for B to be enrolled at E School, the mother must provide proof of residence within the school’s catchment area. The father sets out in his affidavit his understanding of the requirements of E School based on his attendance at the school on 21April 2015.

10. The mother in her affidavit sworn 22 April 2015 sets out a conversation with a member of the administration at E School which suggests that it might be possible for B to be enrolled at E School even if she lives outside the catchment. The mother does not suggest that a place for B is guaranteed if she does not live within the catchment area.

11. There is no evidence from the school to clarify this matter. However, on the mother’s version of the conversation, it is clear that B can attend E School if she lives within the catchment area. Whether B can attend E School if she does not live in the catchment area is a matter for evidence in due course and cannot be resolved on the basis of competing hearsay.

12. At the present time, the mother has told the father that she and the children are living with a friend in the apartment building in Suburb D where they lived before the mother took the children to Newcastle.

13. C and B are now in Sydney. For them to return to Newcastle after C has been re-enrolled in Suburb D School and B has expectations of commencing at E School would be extremely disruptive for both children.

14. It is desirable to limit the frequency of change in the children’s arrangements. In the event that the mother is successful in her substantive appeal, the most likely result is that the father’s application for the return of the children to Sydney will be remitted to another judge for re-hearing. Two judicial officers have ruled that the children should be returned. The most effective way to ensure that there is no further disruption for the children is for the mother to remain with the children in Sydney until her application for relocation has been heard.

15. The grounds of appeal were prepared without the benefit of the settled reasons and may be amended, however it is noted that some of the matters now complained of were the subject of concessions in the submissions of Senior Counsel for the mother.

16. Senior Counsel for the mother submits that the appeal would be rendered nugatory if a stay were not granted.

17. That submission misapprehends the mother’s position. It seems to be assumed by the mother that, if a stay is granted, the mother will be free to remove the children from Sydney and take them to live in Newcastle.

18. The mother has no right to remove the children from Sydney and cause them to live in Newcastle. A stay of the Orders of 10 April 2015 does not confer such a right or permit her to remove the children, without the consent of the father, to live in Newcastle.  Refusal to stay the Orders of 10 April 2015 does not interfere with the mother’s rights.

19. The application before the Court was the father’s application for the mother to return the children from Newcastle whence she unilaterally removed them. There were no proceedings instituted by the mother seeking orders permitting the children to relocate. They were removed to Newcastle on 17 or 18 January 2015.

20. The children were told after 25 February 2015 that they were returning to Sydney. Shortly after they were told that they were not. They were told on 10 April 2015 that they were returning to Sydney. According to B’s Instagram messages, on 17 April 2015 (to which reference is made later in these reasons) she was told that they were not returning to Sydney. They returned to Sydney on 20 April 2015.  

21. The best interests of the children were the subject of consideration in the substantive hearing and I have found that those interests require that the children be returned from whence they were removed, for the reasons set out in the judgement of 10 April 2015. Nothing in the mother’s affidavits sworn 16 and 22 April 2015, in so far as they set out her evidence touching on the best interests of the children, was not before me on 9 April 2015, when the substantive proceedings were heard.

22. The father deposes that, after the Orders were made on 10 April 2015, the Independent Children’s Lawyer (“ICL”) told the children that they would be returning to Sydney. Annexed to the father’s affidavit are copies of Instagram messages sent by B.

23. B’s messages to her friend T express her excitement and pleasure at starting at E School. Other friends joined in the exchange. B’s last message in the exchange is:

    I can’t wait to see you guys on Tuesday in (sic) just gonna hug you all.

    That message closes with 25 emoticons expressing pleasure. It is not possible to ascertain from the face of the document when those messages were sent.

24. In a message sent on Tuesday (presumably Tuesday 14 April 2015) B writes:

    My mum is not moving tomorrow I don’t understand why not, like what’s going on????

    That message is followed by three emoticons of a sad face.

25. B spent the day with the father on 21 April 2015. On that day the father deposes that B said to him:

    Mum and I were at [E School] this morning speaking to the principal about me going back there. I saw all my old friends from [Suburb D School] when I was there! They were so excited to see me, and was (sic) hugging me and kissing me as they knew I was coming back! I was so happy to see them!

26. I am satisfied that B is excited and happy to be attending at E School.

27. The mother deposes that she has not secured accommodation within the radius required in the Orders. It is her evidence that she has been unable to do so.

28. Annexed to the father’s affidavit are advertisements for 16 apartments for rent in Suburb D and Suburb O, which is within the catchment area for both Suburb D and E School, at rents between $500 and $580 per week. In the advertisements, ten of the apartments are expressed to be “available now”, three are available in April and one is available on 1 May 2015.

29. In her affidavit sworn 22 April 2015, the mother deposes that she was unable to secure a specified property in Suburb D to rent because the landlord would not accept an application for a four month lease. She gives no evidence as to whether the property was available if she entered into a lease for 6 months. Given that the first day of the trial has been listed for June, it is unlikely that the substantive proceedings would be concluded within four months and the mother gives no explanation for seeking a four month lease.

30. I propose to vary the geographical requirement to allow the mother to move to any residence within the catchment for E School to assist her to comply with the Orders for the return of the children.

31. I remain satisfied that the children are not settled in Newcastle, that it would be unreasonably disruptive for them to be returned to Newcastle and that B’s wishes are to be at E School. Nothing in the evidence in support of the application for a stay addresses my concerns about C’s psychological difficulties which are set out in the reasons for judgement dated 10 April 2015.

32. For those reasons, the application for a stay of the Orders will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 April 2015.

Associate:  SNK

Date:  22/4/2015