Faure and Simons

[2011] FamCA 313

FAMILY COURT OF AUSTRALIA

FAURE & SIMONS [2011] FamCA 313

FAMILY LAW - CHILDREN - Child related proceedings - Stay of substantive orders pending appeal

Family Law Act 1975 (Cth) – s 42
Family Law Rules 2004 – r 22.11

Clemett & Clemett (1981) FLC 91-013

APPLICANT: Mr Faure

RESPONDENT: Ms Simons

INDEPENDENT CHILDREN’S LAWYER: Rafton Family Lawyers

FILE NUMBER: PAC 5887 of 2010

DATE DELIVERED: 29 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 29 April 2011

REPRESENTATION

FOR THE APPLICANT: Mr Faure, in person

SOLICITOR FOR THE RESPONDENT: Mr Geary, Salvos Legal Humanitarian Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rafton, Rafton Family Lawyers

Orders

1. That the father’s application for a stay be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5887 of 2010

Mr Faure

Applicant

And

Ms Simons

Respondent

REASONS FOR JUDGMENT

1. In relation to the stay application the father has indicated that he proposes to lodge an appeal.  As I have indicated, he has 28 days from today in which to do so.  The father, in those circumstances, makes an application for stay of the orders until such time as the hearing of the appeal is completed. 

2. The father makes a number of submissions in relation to why it would be in the child’s best interests for the substantive orders that I have made to be stayed.  He says that in relation to the proceedings in the Alaskan Court and in relation to proceedings that were brought pursuant to the Hague Convention that in the course of those matters the mother informed the Alaskan Court that she would come to Australia with the child and that she would permit the child to be able to remain in Australia until the completion of these proceedings.  He says that the child is happy in her current arrangement in which she is living with him, that she is attending school in Sydney, that she is doing well, she is not in any danger in her current circumstances.  The father says that he still regards the mother as being a risk to the child and that her circumstances with Mr D are still untested. 

3. He says that the recommendation of the family consultant is against what I have determined as being in the best interest of the child.  He says that it would be disruptive now for the child to be returned to Alaska and possibly have to face the situation where she would be returned under court order, from the Full Court of this Court to return to Australia.  In all those circumstances the father says that it is in the child’s best interest for her to remain in his care in Australia. 

4. Learned solicitor for the independent child lawyer, Ms Rafton, says it is difficult for the independent child lawyer to make submissions in the circumstances where it is not clear to her what the reasons are for making these orders.  But she says that, again, as was suggested by father, that it would be disruptive for the child to return to the United States if she was to then be required to come back to Australia.  Ms Rafton said that the child is really remaining in a situation which is broadly consistent with what she has been in now for some months and that the judgment that I have made about the matter is inconsistent with what the considered position of the independent child lawyer was.  In all those circumstances it would probably be better for the child to remain living with her father in Australia until the determination of the appeal.

5. The principles which guide the Court in respect of this matter are well known.  They were set out in such authorities as Clemett & Clemett (1981) FLC 91-013. The principle is that the Court is to be guided by what is in the best interests of the child. As I have indicated, the child is currently in Australia living with her father pursuant to orders which I made on the last day of the hearing. Those orders expire today. I have obviously made substantive orders. The effect of those orders being to require that the child be collected and go to the United States and live with her mother in Alaska. It would take some time for the father’s appeal to be heard and reasons to be completed, I would have thought at least some months and it could be some considerably longer period than that.

6. I note that I have considered the position in relation to the appeal in the light of the evidence that was before the Court in the trial.  The relevant matters, of course, are set out in the statutory provisions to which I have referred.  True it is that on the one hand the child could remain with her father in Australia, in the circumstances to which I have referred.  But it is not correct for Ms Rafton to say that if the child was to remain in Australia with her father she would be in a situation broadly consistent with what she has been in now for some months.  This is because her mother was also in Australia for some of the time caring for her.  And her mother cannot return to Australia.  On the other hand, my view is that the best interests of the child require that the child live with her mother in the United States.

7. I take on board the suggestion that it would be, to some extent, disruptive for the child to be returned to Australia in the event that the Full Court determines that I have made an error and that some other course ought to be taken.  But the mother said that the child is used to travelling.  I am not concerned about either party not complying with orders of the Court.  I do not have any serious view that the mother would not return the child to Australia in the event that the Full Court was to overturn the substantive orders that I have made. 

8. In all those circumstances, in my view, the best interests of the child lie in her going to the United States consistently with the orders that I have made.

I certify that the preceding eight (8) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice W P Johnston delivered on 29 April 2011.

Associate:     ________________________

Date:              9 May 2011