Folett and Langley (No 2)

[2016] FamCA 337

FAMILY COURT OF AUSTRALIA

FOLETT & LANGLEY (NO 2) [2016] FamCA 337

FAMILY LAW – CHILDREN – STAY – Application by father seeking a stay of final orders pending the hearing of an appeal – Application granted in part

Family Law Court 1975 (Cth)

APPLICANT: Mr Folett

RESPONDENT: Ms Langley

INDEPENDENT CHILDREN’S LAWYER: Mr Tallarita

FILE NUMBER: CAC 1832 of 2012

DATE DELIVERED: 29 April 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 29 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bridge

SOLICITOR FOR THE APPLICANT: Barker & Barker

COUNSEL FOR THE RESPONDENT: Mr Gill

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Watts McCray

Mr Tallarita

Joseph Tallarita

Orders

1. BY CONSENT the Order of 8 March 2016 discharging the appointment of the Independent Children’s Lawyer be stayed in the first instance proceedings pending the outcome of the appeal, noting the following:-

   (a)this is not intended to either encourage or discourage the Independent Children’s Lawyer to participate in the appeal;

   (b)the Independent Children’s Lawyer has expressed a preliminary view that he does not see much value in his involvement in the appeal, except if there is an application to adduce fresh evidence in the appeal; and

   (c)it is a matter for the Full Court to determine whether the Independent Children’s Lawyer should be part of that appeal proceeding.

IT IS FURTHER ORDERED

BY DETERMINATION

1. Order 3 regarding the mother’s relocation to B Town made 8 March 2016 be stayed until 2 December 2016.

2. The application of the father filed 22 April 2016 for stay is otherwise dismissed.

3. Costs of all parties be reserved.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Folett & Langley 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 HOBART

FILE NUMBER: CAC 1832 of 2012

Mr Folett

Applicant

And

Ms Langley

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Folett, (‘the father’), and Ms Langley, (‘the mother’), are the parents of two children: N, born in 2002 who is now aged 14 and B who was born in 2006 who is now aged 10 (‘the children’).  These parties were involved in parenting proceedings initially before the Federal Circuit Court and later before the Family Court of Australia.  Those proceedings were heard from 22 to 25 July 2014, and from 13 to 15 October 2014 by the Deputy Chief Justice of the Family Court.  His Honour reserved reasons and apparently, on 18 January 2016, the reasons not having been delivered refused, in chambers, to allow the father’s application for the matter to be re-opened, and on 8 March 2016, gave reasons and made orders which I have before me.

2. The orders, in essence, provide that the children live primarily with the mother and that she have sole parental responsibility for them.  The orders go on to provide that the mother be permitted to relocate the permanent residence of the children to B Town and that the children spend limited supervised time with the father if the parents are unable to reach agreement.  There are provisions for professional supervision and a requirement that the father pay for that professional supervision.  There are a number of other orders in relation to passports, communications and the like. 

3. There were some 16 months between the date the judgment was reserved and the delivery of judgment.  On 4 April 2016, a notice of appeal was lodged by the father in relation to orders 1, 2, 3, 4, 5 and 6, that is, the order for residence, the order for sole parental responsibility and the orders for enabling the relocation of the children and the time the father was to spend with the children.

4. Before me, I had an affidavit of the father sworn 14 April and filed 22 April 2016, and an affidavit by his sister Ms H sworn 14 April and filed 22 April 2016.  They were in support of an application in a case filed by the father to stay to stay orders 3 to 6 of the Honourable Deputy Chief Justice, that is, the orders relating to time and relocation and supervision.

5. In her response, the mother asked that the father’s application for stay be dismissed.  The Independent Children’s Lawyer appeared today and made no submissions as to what the Court should do, but raised a number of issues to which the Court should have regard including the arrangement that had been in place for some time and the delay in the move to B Town and a number of other factors.  The mother’s evidence was that she did not intend to move to B Town until the end of the year.  I have had regard to all of those.  I will not repeat the law and the case law which was provided to me by counsel. 

6. In support of her application, the mother filed an affidavit setting out the difficulties that she is currently encountering in terms of the father’s time with the children and in terms of the involvement of the father’s sister in respect of supervision of time.  Of course, I am not in a position where I can make or I choose to make findings of fact on this application.

7. The onus in relation to a stay rests on the applicant.  It is trite law to say that a stay is not automatically granted, but is considered by a judicial officer in the exercise of his or her discretion, and that a party is generally entitled to the benefit of a judgment and that a judgment is generally presumed to be correct.  There were no submissions made in relation to the bona fides of the father in terms of the appeal application, and I am satisfied that it is a bona fide appeal.  It is not simply time wasting. 

8. I did not initially have before me the notice of grounds of appeal filed by the father, but they were provided to me during the course of argument, and I have had the opportunity of reading them and hearing the submissions by counsel for each of the parties and the Independent Children’s Lawyer, albeit, indirectly in the latter in respect of the grounds of appeal. 

9. I do not intend to go through each of the grounds of appeal separately, although, I will make some notations in respect of them.  One of the complaints made by the father and dealt with in the appeal is that the trial judge failed to take into account the recommendations of the Court experts in terms of additional time.  His second complaint is that the trial judge failed to take in account the submissions made by the Independent Children’s Lawyer and, in fact, in many ways may have airbrushed the Independent Children’s Lawyer from the reasons.

10. There was criticism of the trial judge in terms of the delay in delivering the reasons bearing in mind the change in the age of these children from the date of hearing to the date the reasons were given.  I have heard the submissions and had regard to the submissions by counsel for the mother.  I am satisfied that the grounds of appeal have some merit although I do not go so far as to say the grounds are weak or strong.  That will be, in my view, more a matter for the Full Court. 

11. The Deputy Chief Justice in his reasons clearly considered the evidence before him and made some careful analysis of the risks to the children on the findings of fact that were before him and concluded that both children were at unacceptable risk of abuse in the unsupervised care of the father. 

12. There has been no delay in seeking the stay.  There is no evidence before me as to the delay in when an appeal can be heard, although, I take judicial notice that appeals normally take six to eight months at the earliest to find a hearing date and that it is more likely that this appeal will be heard late in 2016 or in the first half of 2017 in their normal course.

13. It is, of course, open for the father to make application to the Full Court for an expedition of the appeal having regard to their views as to the strength or otherwise of the appeal and any submissions as to delay in delivering judgment and also the age and maturity of these children to which the Independent Children’s Lawyer alluded. 

14. I am conscious that the arrangements for about three years have been, although varied from time to time, put in a place where the father’s sister has been the supervisor, although there is some concern by the mother that that supervision may not be as she had anticipated at this time.  I note that the trial judge in his reasons has indicated that private supervision is able to be negotiated, although he was concerned that it may not occur, and, therefore, he put in place the orders that he provided. 

15. As I think I have said earlier, the mother intends to move to B Town, but does not intend to do so until November or December of this year, given the schooling and health of an elder child. 

16. I accept the submission of counsel for the father that the orders appear, on the face of them, to be premised on the mother’s move to B Town, and are structured in that way.  It seems from the affidavit material, that the father has sought more time, but has not received the time that he thought was appropriate. 

17. The mother sets out in paragraph 24 of her affidavit that she is content for the children’s time with the father to be fortnightly, provided it is supervised by a professional supervision service, and she provides some names of that service.  She has provided evidence that there are facilities available by F Service, on a monthly basis.  In addition there was some material from the bar table, which, of course, I could have no regard to, that this may be available on a fortnightly basis. 

18. The mother would clearly not be prejudiced by a stay, insofar as the move to B Town was concerned, up to, at least, November of this year.  The mother has proposed fortnightly time, albeit in accordance with the orders made by his Honour, after his Honour had concluded that the children were at risk of abuse.  

19. The stay, I think from my perspective, seems to fall into three areas.  Firstly, the move to B Town.  Secondly, the supervision rather than professional supervision and thirdly, the time the father is to spend with the children whilst they remain in Canberra.  I accept that whatever the outcome is the relationship with the children and the father is not to be terminated. 

20. Having considered all of those factors, and considering and adopting the submissions made by counsel and the exchanges between counsel and bench during the course of this stay application, and, in fairness, noting that this would normally have been dealt with by the Deputy Chief Justice, but as he is on long-leave shortly before his retirement, the task has quite appropriately fallen to me, I am prepared to grant the stay, insofar as the relocation to B Town is concerned, until Friday, 2 December 2016. 

21. Given the findings of the Honourable Deputy Chief Justice, I am not prepared to make any stay or any effective change to the order in terms of professional supervision, given that his Honour gave that aspect of it careful thought, and it is open for the parties to negotiate.  Although, I accept that negotiation has been, in these proceedings and between these parties, somewhat fraught.  That is clear from the affidavit material.  Given the offer contained in paragraph 24 of the mother’s affidavit, I am not prepared to otherwise stay the order, bearing in mind the provisions of order 4(a). 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 29 April 2016.

Associate:     

Date:              29 April 2016