Fairfax & Fairfax

[2021] FCCA 636

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fairfax & Fairfax [2021] FCCA 636

File number(s):

BRC 720 of 2020

Judgment of:

JUDGE TONKIN

Date of judgment:

30 March 2021

Catchwords:

FAMILY LAW – Application for stay of parenting orders – Court’s discretion to grant a stay pending appeal – Stay refused – Order for supervised time pending appeal.

Legislation:

Family Court Rules 2004, rr.22.11 (1), 22.11 (2), 22.11 (3)

Federal Circuit Court Rules2001, rr.29.04, 44.10

Cases cited:

Clemett & Clemett[1980] FamCA 90

Friscioni & Friscioni [2009] FamCAFC 48

Sheldon & Weir (Stay Application) [2011] FamCAFC 5

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

Number of paragraphs:

49

Date of hearing:

29 March 2021

Place:

Brisbane

For the Applicant:

The Applicant appeared on her own behalf

Solicitor for the Respondent:

Best Wilson Buckley Family Law

Solicitor for the Independent Children's Lawyer:

Wallace Perkins Family Law

ORDERS

BRC 720 of 2020

BETWEEN:

MS FAIRFAX

Applicant

AND:

MR FAIRFAX

Respondent

ORDER MADE BY:	JUDGE TONKIN
DATE OF ORDER:	30 MARCH 2021

THE COURT ORDERS THAT:

1.The application to stay the Orders made on 27 January 2021 is refused.

2.Pending the appeal the children, W born in 2007, X born in 2010, Y born in 2012 and Z born in 2014, shall spend supervised time with the mother as follows:

(a)On Easter Saturday from 10 a.m. to 5.00 p.m. such time to be spent supervised by a person agreed to by the parties in writing, such time to occur in Brisbane at a place nominated by the mother and agreed to by the parties in writing and such time to be spent in accordance with any Covid19 restrictions issued by the Queensland Department of Health;

(b)On Saturday 10 April 2021 from 10 a.m. to 5.00 p.m. such time to be spent supervised by a person agreed to by the parties in writing, such time to occur in Brisbane at a place nominated by the mother and agreed to by the parties in writing and such time to be spent in accordance with any Covid19 restrictions issued by the Queensland Department of Health;

(c)Such other time as agreed between the parties to be supervised by a person agreed to by the parties in writing, such time to occur at a place nominated by the father and agreed to by the parties in writing and such time to be spent in accordance with any Covid19 restrictions issued by the Queensland Department of Health; and

(d)The parties shall attend a Legal Aid Conference in accordance with the Orders made by Registrar Coutts on 11 March 2021 as amended on 17 March 2021.

IT IS NOTED THAT:

A.The Independent Children’s Lawyer advised the Court that the Legal Aid Conference is likely to occur within one week’s time.

B.The Independent Children’s Lawyer and the father did not oppose an order for the children to spend time with the mother supervised.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Fairfax & Fairfax is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TONKIN

INTRODUCTION

1. This is an application for an order staying the orders made by me on 27 January 2021 pending appeal. The applicant filed a Notice of Appeal on 19 February 2021 appealing the orders made on 27 January 2021. She sought an order that the children live with and spend time with the parents on an equal shared basis as agreed in writing by a parenting plan formed by the parents.

2. Further she sought an order that financial disclosure from the father “is enforced for the just and equitable resolution of the matters and a waiver of privilege applied for if necessary”.

   PRINCIPLES RELATING TO AN APPLICATION FOR A STAY

3. Pursuant to Rule 22.11 (1) of the Family Court Rules 2004 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.

4. Sub rule 22.11 (2) of the FC Rules provides that 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.

5. Sub rule 22.11 (3) of the FC Rules provides that 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 of the Family Court, Judge of the Federal Circuit Court or Magistrate who made the order under appeal.

6. Rule 44.10 of the Federal Circuit Court Rules2001 provides that “the Court may, at any time, grant, discharge or vary a stay of the proceedings to which an application for an order to show cause relates”.

7. Rule 29.04 of the FCC Rules provides that a party bound by a judgment or order may apply to the Court for an order that the judgment or order be stayed.

8. In Sheldon & Weir (Stay Application) [2011] FamCAFC 5; (20 January 2011) (Bryant CJ, Finn and Ainslie – Wallace JJ) the Full Court considered the decision of a differently constituted Full Court in Trahn & Long (No. 2)[2008] FamCAFC 194 setting out the principles governing the grant of stays in cases involving children. The Court in Trahn & Long (No. 2) at paragraph [38] said as follows:

   ‘[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] HCA 13; (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] HCA 84; (1986) 161 CLR 681; Clemett  &  Clemett[1980] FamCA 90; (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.”

9. The Full Court in Sheldon & Weir (supra) accepted as correct that statement of principles. The Court also referred to the decision of Friscioni & Friscioni [2009] FamCAFC 48 in Clemett & Clemett[1980] FamCA 90 Nygh J had said at 76, 175:

   “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.”

10. In Trahn and Long (No 2) (supra) the Full Court included as “principles” the following:

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

11. The orders made on 27 January 2021 took into account the significant history of this matter.

    BACKGROUND

12. There are four children of the marriage W born in 2007 (now 13), X born in 2010 (now 11), Y born in 2012 (now 9) and Z born in 2014 (now 6).

13. The parties’ commenced cohabitation in 2004, married in 2006 and separated under one roof in April 2018. During the relationship the parties and their children resided on a 3500 acre farming property known as “B” situated about 60 kms north of Town C and 30 kms south of Town D. The property had two houses.

14. In March 2019 the police were called to the parties’ home and the respondent father’s firearms surrendered. According to the Family Consultant[1]the applicant mother stated that “between April 2018 and August 2019 the parties lived in the home amicably”.

    [1] Report of Mr E dated 6 May 2020

15. In August 2019 there was an incident on the property and police attended. The mother was taken to hospital and the children remained with the father. The mother returned to the property on 14 September 2019 and the father vacated the property until 23 September 2019. The mother was served with a Temporary Protection Order that prevented her remaining on the property.

16. On 15 October 2019 the mother returned to the property and refused to leave. Police attended and she was arrested for breaching a Protection Order.

17. Both parties were spending time with the children until the 2019 Christmas school holidays. The mother did not permit the children to spend any time with their father for a period of about 7 weeks. The father filed an initiating application on 21 January 2020 seeking parenting orders.

18. Interim parenting orders were made on 28 January 2020 for the children to live with the father for a period of two consecutive weeks and thereafter spend time with the parties on a week about basis should the mother live within a 45 kms radius of Town D State School. An order was made for the mother to spend time with the children on weekends depending on whether she lived less or greater than 200 km radius from Town D State School. The mother was restrained from attending upon the property “B”, orders were made for the parents to undertake Parenting courses, an Independent Children’s Lawyer was appointed and arrangements made for the preparation of a family report.

19. Order 14 of the orders made on 28 January 2020 provided that the mother’s time would commence unsupervised “upon the applicant’s undertaking that she will not withhold the children from the father.” Orders 17 to 19 of the Orders of 28 January 2020 provided for a Recovery Order to issue. Order 20 provided that the Recovery Order “lie in the Registry.” Order 21 provided that a Recovery Order would issue upon the father filing an affidavit that the applicant failed to comply with order 14 (which provided for the children to live with the father and spend time with the mother).

20. Orders were made on 19 March 2020 varying the Orders made on 28 January 2020 to include Order 14A “the care arrangements as provided for in Order 14 continue throughout the school holiday period with changeover during school holidays to occur at 3.00 p.m. F Park in Town C”.  A number of additional orders were made on that occasion.

21. On 6 May 2020 the family consultant released his report and recommended that the children live with the father and spend time with the mother supervised and she undertake a psychiatric assessment. Further he recommended that the parties should not both live on the B property.

22. An order was made on 8 May 2020 that the mother attend upon Dr G on 10 June 2020 for a psychiatric assessment.

23. Orders were made by consent on 17 September 2020 for the children to live with the father and spend time with the mother as specified in those orders.

24. The father filed an urgent application in a case on 19 January 2021. He sought the children be returned to his care and the mother spend supervised time with the children. The father had not spent time with the children since 4 December 2020 when the matter was heard by me on 27 January 2021. The mother did not permit the children to attend school during the final days of the 2020 school year and she had not permitted the children to resume school on the first day of the new school year in 2021. It was against this background that the Court heard the urgent application.

25. I made orders on 27 January 2021 for a recovery order, confirmed the order for the children to live with their father and suspended the order for the children to spend time with their mother. The order for the children to communicate with the mother remained in place.

26. Having heard the parties competing submissions with respect to the evidence filed in the proceedings I addressed the parties why a recovery order should not issue having regard to the mother’s flagrant breach of Court orders. The father’s solicitor referred to the fact that a recovery order was made on 28 January 2020 in circumstances similar to the current situation where the mother had withheld the children from spending time with the father. On that occasion the mother had returned the children without police intervention. Order 20 of the orders made on 28 January 2020 provided that the Recovery Order “lie in the Registry”. Order 21 provided that a Recovery Order would issue upon the father filing an affidavit that the applicant failed to comply with the orders made on 28 January 2020 with respect to the children living with the father and spending time with the mother.

27. I enquired of the mother why a recovery order should not issue. Her response is set out at page 5 to 6 of the transcript of proceedings dated 27 January 2021. She argued that the children had been stable (with her) over the past 8 weeks. She complained that the father had left the children unsupervised. She argued that the parenting order made on 28 January 2020 was based on mis-information and claimed that “after the year that has followed under constant inequality before the law and misinformation that has been slandered about me I have actually had up to 14 human rights breached which are currently in triage with the Human Rights Commission of Queensland and I’m claiming asylum for the 100 days…I have embraced every single order I’ve been ordered to do…..I follow the advice of my psychologist doing yoga therapy that has even turned into a breach of the orders by the ICL including the ICL and the other party’s legal representation….”

28. I indicated that I had read the mother’s affidavit and the father’s affidavit and that I had heard from the mother and “recall this matter very well. The mother was very unhappy with the orders that were made by me following a pretty comprehensive interim hearing. There are two reports of significance before me. I am concerned that these children have not attended school in the last term and have not attended school on a very important day their first day back for the New Year and I have no confidence[2] that if I make an order for the children to be returned to their father’s care this afternoon that the mother will comply with that order. And sadly I make an order that a recovery order issue for the children forthwith. The mother raises issues regarding her human rights being violated. That is a complex issue and probably a matter where the mother will benefit from a justice of the Family Court hearing and determining those issues…I am satisfied on the evidence before me that if the children are returned to their father they will not be at risk of harm in the interim. I am satisfied that he will ensure the children attend school and ensure the children are supervised at all times.[3]”

    [2] The word “no” does not appear in the transcript. That is either my error (inadvertence) or an error in the transcript as it is apparent when reading the whole transcript that I had no confidence that the mother would comply with Court orders as she had demonstrated on numerous occasions.

    [3] Transcript of proceedings 27 January 2021 at p8

29. I was satisfied that it was proper to make a recovery order.[4] Order 21 of the orders made on 28 January 2020 provided that a Recovery Order would issue upon the father filing an affidavit that the mother failed to comply with orders.

    [4] Transcript 27 January 2021 at p.7

30. I deferred the matter of supervised time and suspended the mother’s time with the children and transferred the proceedings to the Family Court “hopeful that the matter would shortly be received by a justice of the Family Court”.

31. On 19 February 2021 the mother filed a Notice of Appeal. She argued that the father did not seek a recovery order and did not seek to suspend her time.

    STAY APPLICATION

32. The mother sought to stay the orders made on 27 January 2021. She relied on her affidavit filed on 25 January 2021 and affidavits filed in March 2021. She alleged that the father had left the children unsupervised. That matter had been raised by the mother in previous interim proceedings where she argued that the children should live primarily with her given the father’s failure to adequately supervise the children. The circumstances surrounding that issue was that the father was a farmer and the children lived on the former matrimonial home which was situated on the farming property. Due to the mother’s conduct the father had obtained a Protection Order in August 2020 and the children were placed on that order. The mother had been required to find alternate accommodation other than the farming property. She was considerably upset about that and regarded the decision unfair and unjust. She sought an order that the parties share the care of the children.

33. The mother maintained that the parenting orders were a breach of her human rights and could not be justified in the best interests of the children. She maintained she had been the primary carer for 13 years and was well qualified to care for the children. She was living in Brisbane and had found secure employment. She said she made arrangements to deliver the children to the father but he refused to agree with her. Regarding her failure to engage with her psychologist in accordance with Order 6 of the orders of 17 September 2020 she said “I engaged with her in accordance with her availability…. She was on leave”. She said she was engaging in yoga therapy as recommended by her psychologist. She argued that supervised time was totally impracticable. I formed a view that the mother continued to be outraged by the court orders and regarded any attempt to curtail by court order the time she considered was in the children’s best interests a violation of human rights.

34. The father opposed the stay of the orders of 27 January 2021 the result of which would be that the children would spend time with their mother unsupervised. He submitted that there had been a flagrant breach of Court orders. He relied on the fact that he had written to the mother on numerous occasions through his lawyers and made allegations that she was in breach of Court orders requesting changeover of the children during the time they were being withheld by her however she refused to comply with that request. He was concerned that if the orders were stayed and the mother spent unsupervised time with the children she would again not comply with court orders.

1. He raised a concern that he invited the mother to return the children to him prior to the police executing the recovery order in January 2021 to avoid any distress for the children in police attending their home and removing the children from their mother’s care. The father said the mother refused his request. The mother denied she refused any request.

2. The father said on 18 December 2020 the Magistrates Court delivered judgment and made a Protection Order for a period of 5 years with the father as the aggrieved person. He deposed that he made numerous attempts to request the mother to comply with the orders made on 17 September 2020 during the time she withheld the children and she refused. She responded in the following terms “No it is inhumane. I can not do it. Let’s agree on changeover at a later date. The children will phone you when it suits them”. Further requests were met with “I will be in touch”. The father argued that the only time the mother had complied with the orders was when her time had been supervised. He did not oppose the mother spending supervised time.

3. The ICL relied on the report of Dr G and the family consultant. Dr G assessed the mother and provided a report on 27 July 2020. He indicated that the mother had experienced severe reactive emotional and psychological stress reactions that severely impaired her function to plan and maintain a stable effective parenting plan with the father.

4. The ICL relied on the addendum produced by the family consultant dated 16 September 2020 where the family consultant adopted Dr G’s opinion noting Dr G’s concerns regarding the applicant’s personality functioning in the face of difficult life events, her limited insight and limited capacity to self- reflection. He noted Dr G’s observation that the applicant “remains relatively insightless into the maladaptive manner in which she has behaved with respect to obeying and following lawful directions”. The family consultant supported the recommendation that the mother access counselling with a psychologist and recommended any treating psychologist be provided with a copy of Dr G’s report and be permitted to engage with the ICL. The family consultant accepted Dr G’s suggestion that as the applicant had commenced counselling he endorsed the applicant’s time move to unsupervised time conditional upon the applicant’s continued engagement with counselling.

5. During the time the mother withheld the children in December/January 2021 the ICL also communicated with the mother regarding her failure to comply with the orders of 17 September 2020 and indicated her intention to re-list the matter if the children were not returned by 13 January 2021. The mother replied that “the father did not want to see them….the children were excited about going to the beach…..they haven’t requested contact with him”. The mother said she did not consent to the current orders and the orders were not in the children’s best interests and “they ignore even basic human rights and are based on mis-information”.  Though the mother made numerous complaints about the father’s parenting and reiterated her concerns that he left the children unsupervised she sought an order that the children spend equal time with their parents.

6. The ICL opposed the granting of the stay of the orders made on 27 January 2021 similarly on the basis of the mother’s flagrant breach of court orders. The ICL submitted that she was concerned if the stay of the orders made on 27 January 2021 was granted that would enliven Order 3 (k) of the orders made on 17 September 2020 that provided for the mother to spend time with the children unsupervised. The ICL noted that Dr G indicated that the mother should access psychological support to assist her to interpret this report and to develop a stress management plan to quell her sense of outrage and indignation as a matter of urgency. Dr G said the mother would benefit from supportive psychological counselling to assist her to develop strategies for coping with ongoing parenting issues. In addition he indicated there should be strict compliance with Court orders. He recommended that the mother take personal responsibility to a post separation parenting plan with the father and that she strictly comply with Orders made by the Court.

7. The ICL tendered a schedule (Exhibit ICL 1) that related to dates and times the mother had attended upon her treating psychologist in accordance with Order 6 of the Orders made on 17 September 2020. The mother had attended upon a psychologist on 15 September 2020 (two days before the interim hearing) and then not again until the day before the hearing on 27 January 2021. The ICL raised concerns that Dr G had indicated the importance for the mother to comply with Court orders and to engage with her psychologist. She submitted that the mother continued in disregard of the court orders and recommendations of the expert.

8. The ICL raised a number of further matters for concern. She submitted that “the mother is not in agreement with the orders (made on 17 September 2020)”. She believes they are “inhumane and cites the conventions against children’s rights at length”. The ICL said “I have written at length for stability to be returned to the children but that has been disregarded”. Further she submitted that on two occasions the police had handcuffed the mother in the presence of the children. The first time when she was removed from the property in breach of an order and the second time more recently when police attempted to execute the recovery order in January 2021. In her case information the mother admitted she was handcuffed stating “she was gently handcuffed by police and drawn to one side” while the children were removed. I remain concerned regarding the emotional impact on the children being witness to their mother being handcuffed which is likely to have been an extremely distressing event.

9. The ICL also raised concerns regarding the mother’s attitude expressed by her in her case information document filed on 11 March 2021 regarding the circumstances surrounding the police ultimately executing the recovery order. The mother stated “following the hearing on 27 January 2021 I took the children on a picnic….we stopped at H Store where I purchased school text books to begin school work the next day …I found an email from the father’s legal representative stating to changeover the children at 5 p.m. at the Location J. It was 4.50 p.m. I drove across Brisbane …I did not have any text or message from the father and it felt like another trick it did not feel logical reasonable or the right thing to do for the children…we returned to the stable accommodation we had been staying in for the last 8 weeks ……we shared a lovely family meal, showered and prepared to watch a favourite show……..I noticed a voice message …..I called the Town C police …..the police arrived …..the children became distressed and terrified…….”

   DISCUSSION

10. On the evidence before me the applicant failed to establish a proper basis for granting a stay of the orders of 27 January 2021. I am unable to stay the recovery order as that order has been executed and is now spent. I remain concerned about the mother’s conduct in failing to arrange a hand over of the children with the father prior to police executing the recovery order. There was ample opportunity to do so. In my view the mother acted contrary to the children’s best interests. She said herself her daughter was distressed and terrified.

11. Regarding the order I made to suspend the mother’s time, in giving effect to an order for a stay of the orders made in January 2021 that would enliven Order 3 (k) of the orders of 17 September 2020 and the children would be required to spend unsupervised time with their mother. I formed the view that it was not in the children’s best interests to be placed in those circumstances as it was likely that the mother would not comply with any order for the children to live with their father and I remain concerned that the mother would not return the children to their father (yet again). In addition I remain concerned whether the children would be permitted to attend school whilst in their mother’s care.

12. I am satisfied that the mother has an arguable case on appeal.

13. I place weight on the desirability of limiting the frequency of any change in the children’s living arrangements. Orders were made for the children to live with the father and spend time with mother. She unilaterally on two occasions withheld the children for significant periods of time in breach of Court orders. I am confident that the father will comply with court orders.

14. I am unaware when the appeal will be heard. I anticipated that once the matter was transferred to the Family Court there was unlikely to be any delay and that court would consider whether the mother’s time should be reinstated. Two months have now passed and the children have not spent any time with their mother. I remain concerned regarding the ability of the mother to comply with Court orders however neither the father nor the ICL opposed the mother spending supervised time with the children. In those circumstances and upon the basis that I am unaware when the appeal will be heard I consider it is in the children’s best interests to make an order for the children to spend supervised time with their mother. I make orders accordingly.

    CONCLUSION

15. I am satisfied that in the best interests of the children to refuse the stay of the orders made on 27 January 2021. I am satisfied that it is in the children’s best interests that they spend time with their mother supervised and make orders for the children to spend time supervised on Easter Saturday and the following Saturday. The ICL has organised a Legal Aid conference which will shortly occur. I anticipate the parents will discuss a safe way forward for the children. Otherwise I make orders for the children to spend supervised time with their mother at times and places to be agreed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin.

Dated:       30 March 2021