Elspeth v Peter - [2007] FamCA 254

FAMILY COURT OF AUSTRALIA

ELSPETH & PETER

[2007] FamCA 254

Family law – Children – Stay application

APPLICANT:

ELSPETH

RESPONDENT:	PETER
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

HBF

150

2003

DATE DELIVERED:

13 March 2007

PLACE DELIVERED:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

13 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Murray

COUNSEL FOR THE RESPONDENT:

Mr McGuire

INDEPENDENT CHILDREN’S LAWYER

Mr Fitzgerald

Orders

THAT order 5 of orders of this Court made 20 February 2007 be stayed in so far as they relate to the costs of the Independent Children’s Lawyer.
THAT the remainder of the application filed 28 February 2007 be dismissed.
THAT the applicant wife pay the respondent husband’s costs of the application in a case filed 28 February 2007 of $1,250.00 within fourteen days from the date of these orders.
THAT the applicant wife pay the Independent Children’s Lawyers costs of the application in a case filed 28 February 2007 of $220.00 within fourteen days from the date of these orders.
IT IS DIRECTED
THAT a copy of the reasons for these orders be taken out and placed on the Court file.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 150 of 2003

ELSPETH

Applicant

And

PETER

Respondent

REASONS FOR JUDGMENT

This is an application in the case filed by wife on 28 February 2007 following orders made by me on 20 February 2007.
In her present application the wife seeks a stay of orders 2, 3, 5, 7, 8 and 9 made by me on 20 February 2007 pending the determination of the appeal against those orders now filed in the Full Court.
The factual material before me was my order of 20 February 2007, and if I take it correctly from Mr Murray's submissions, the affidavit material in the previous applications including details of the parties' financial circumstances, my reasons in the primary determination of 21 December 2007, my reasons in respect of the applications on 20 February 2007, and an agreement as to facts that the three children, (the subject of the order of 21 December 2007), spent time with their father in accordance with that order on 24 February 2007 and 10 March 2007.
I am told and it is an agreed fact that handover occurred, not in the way envisaged by the order, but in another way which was in accordance with agreements between the parties.
At this level I congratulate the parties for reaching that agreement so that the time spent could go ahead.
I am told that the primary appeal is listed for hearing for the sittings commencing 28 May 2007. That appeal relates to the orders made on

21 December 2006 and it is likely that the appeals in relation to my orders on 20 February 2007 will be heard at the same time, although that has not been confirmed at this date.
On 20 February 2007 there were a number of applications before me. The first application was an application by the wife to stay the orders that I had made on 21 December 2006. That application was in part dismissed and in part allowed. The only part of the stay which was allowed was that in relation to order 3 being made by me on that day which was in regard to the elder child.
In terms of the guiding principles with regard to stay applications, I refer to my reasons given on 20 February 2007 including the guiding principles that:
“a stay will not be granted automatically but must be considered by the judicial officer in the exercise of his or her discretion”
In exercising the discretion the judicial officer will consider whether the refusal of the stay will render a successful appeal nugatory, the merits of the appeal, any hardship which would be suffered by the applicant or the respondent by granting or refusing a stay; where there has been any delay in seeking a stay the bona fides of the applicant; time delay until the appeal can be heard; and that changes in the living arrangements of the child should be limited as much as possible. I also include the other matters that I raised at that time.
The first part of the stay is in relation to the make-up time that I put in the order of 20 February 2007 which was in essence to make up the time that had been lost by the children with their father over the Christmas-New Year period. That issue was argued before me on 20 February 2007 and that argument as to the stay of that order was lost and in many ways this is a reagitation of that stay application with regard to the two younger children.
There is no reason, as I said on the last occasion, as I say again on this occasion, why these two younger children ought not to have spent time with their father over the Christmas period bearing in mind the comments I made in my reasons of 21 December 2006, and the orders I made on that date.
Accordingly, insofar as that application for stay of that order is concerned, it is rejected.
The second part of the stay application was in relation to the orders regarding the delivery of the children to the father's home. This was put in place because of the factual circumstances that became clear in the contravention application. It seemed to be a way in which the children could at least spend some time with their father without the interference of other people such as I found at that time.
There is no evidence before me as to why that order ought to be changed as to anything that has happened between 20 February 2007 and the present time.
Accordingly, that part of the stay application is dismissed.
The third stay application relates to the order 5 that the respondents pay the costs of the applicant and the independent children's lawyer in respect of contravention proceedings.
Insofar as the independent children's lawyer is concerned they are not pressing payment and do not object, as I understand it, to the stay, in which case I will be making the stay of the costs order insofar as it relates to the independent children's lawyer.
As far as the husband is concerned, he has incurred, as I understand it, about $7500 in costs, and if the order is stayed, the cost to him will be the cost of interest on that sum for, I infer will be somewhere between six and nine months. I would be surprised if the Full Court delivered its reasons in this matter on the day that it is heard or on the days it was heard. I anticipate the Full Court will need time to consider the issues of law that have been raised.
That will cost at 10 per cent somewhere less than $700, I presume, in respect of that sum. That is the hardship that would be suffered by the husband if the order were stayed. The hardship that would be suffered by the applicant would be the costs she incurred in relation to dealing with the application for determination of those costs if they were not agreed and a risk that she may take that the funds would not be returned.
It seems to me on balance, and considering all of the principles that I have detailed above in relation to this order, that there ought not to be a stay insofar as the costs are concerned with regard to the husband, and in that respect I note the evidence that was before me on the last occasion about funds that were available to the wife.
The next aspect of this application is in respect of the stay application with regard to Mr S and G which are orders 8 and 9. Mr Murray tells me that he no longer represents these two people and they are not here to prosecute their stay application.
As I understand the situation neither G nor Mr S have filed appeals in relation to the orders made against them. The application for stay in respect of them was made by the wife and that is not prosecuted.
Accordingly, that part of her application is dismissed, however, I note that it does not impact on any application that Mr S or G may wish to make at some future time if they decide to lodge an appeal; not that I encourage that course.
The final part is the application for stay by the wife in respect of her sentence of imprisonment for four months which was suspended under order 7(b).
If the wife had been sentenced to prison and it had not have been suspended, the stay application would have had significant strength, bearing in mind the effect that to leave somebody in gaol for four months pending the appeal would render the whole purpose of the appeal nugatory.
In this case there has been a sentence but the sentence has been suspended. The tension, it seems to me, is between staying an order where there is no order of any breach of that order so far but where an appellant is at risk of serious imprisonment on one hand; and secondly, the history of the applications in this matter in terms of the stay.
I made it clear on 20 February 2007 that I expected my orders to be complied with notwithstanding the appeal when I rejected the initial stay application. It would seem that to stay this order would mean that there is no penalty in terms of a breach of the orders where I have already determined that notwithstanding the appeal that the orders should continue to have effect. As such I do not grant the stay with regard to order 7.
There is an application by both the independent children's lawyer and the husband that their legal costs be paid in relation to this application and they have detailed the amount of such costs.
The respondent wife submits that such costs ought to be reserved, and I probably articulated the argument for Mr Murray when I recalled that there was already a part of the costs with regard to the stay which had been reserved.
Mr McGuire argued that this was a discrete application which was, insofar as his client was concerned, wholly unsuccessful, and in essence he said this application was an unnecessary expense.
Under the Family Law Act generally each party ought to pay their own costs. That is clearly set out in section 117(1). 117(2) says:
If there are proceedings under the act in accordance with the opinion there are circumstances that justify in doing so, the court may, subject to subsections (2)(a)(iv) and (v) and rules of court, make an order as to costs and security for costs, whether by way of interlocutory or otherwise.
The High Court has said that there is no priority in relation to such section. If there is an application for costs I am bound to consider that in accordance with the matters set out under section 117(2)(a).
Insofar as the financial circumstances of each of the parties are concerned, I am aware that both have limited financial resources and both have expended significant amounts of what they have in terms of these proceedings.
The wife has the assistance of funds of money from the members of the Exclusive Brethren and/or members of her family.
Neither party is, with the exception of the independent children's lawyer, in receipt of Legal Aid. In terms of the conduct of the parties - and whether the parties have been wholly unsuccessful - this application is in fact simply a reagitation of a previous application and, it seems, insofar as the husband is concerned, these are matters that were determined on 20 February 2007.
The proceedings were not necessitated by a party to the proceedings failing to comply with the order. There is no evidence of offers in writing.
Insofar as the independent children's lawyer is concerned, I am told, and I accept, that no request was made to them for stay of the costs orders prior to the proceedings. To reserve costs would simply put the parties to further and unnecessary expense.
Accordingly, I determine, firstly, that costs ought to be paid and the amounts claimed by both the independent children's lawyer and the husband seem fair and reasonable in the circumstances of these proceedings.

I certify that the preceding 40 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:

Date: 13 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ELSPETH & PETER