Gains & Anor and Meighan & Anor

[2012] FamCA 371

FAMILY COURT OF AUSTRALIA

GAINS AND ANOR & MEIGHAN AND ANOR [2012] FamCA 371

FAMILY LAW – ORDERS – Stay – factors and considerations in granting stay of orders - where the mother and maternal grandmother appealed orders made in family court – orders changed residence of subject child from mother and maternal grandmother to father with the child to spend time with paternal grandmother – where the mother and maternal grandmother filed an application seeking a stay of all orders and an immediate reduction of time between the child and father – where stay of orders would have an immediate disruptive effect by reducing time between the child and father and then holding the child in a position of uncertainty – where there is no immediate irreparable consequence by the stay – where the appeal does not involve any grounds on errors of law – where appeal is against discretionary exercise of considering the evidence and what weight was given to particular matters – where the child is suffering from loyalty conflicts and the dissatisfaction of adults about a change of residence – where there is a real risk of emotional and psychological harm to the child from the granting of a stay or partial stay which is likely to leave the child caught in transition with all parties unable to reassure the child about the future – risk outweighs the harm of further change of residence in the event of a successful appeal and rehearing with a different outcome – applications for stay of orders dismissed.

COSTS – Application for costs by respondent paternal grandmother – application to depart from the usual rule that the parties pay their own costs – real merit in the paternal grandmother’s application – where the two unsuccessful applicants are receiving Centrelink benefits and are presently responsible for the financial care of the child – no orders made for costs.

Clemett& Clemett (1981) FLC 91-013

FIRST APPLICANT: Ms Gains

SECOND APPLICANT: Ms Mercer

FIRST RESPONDENT: Mr Meighan

SECOND RESPONDENT: Ms Meighan

INDEPENDENT CHILDREN’S LAWYER: Ticehurse Foat Lawyers

FILE NUMBER: NCC 2827 of 2009

DATE DELIVERED: 30 March 2012
EX TEMPORE

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 30 March 2012

REPRESENTATION

FIRST APPLICANT: In Person

SECOND APPLICANT: In Person

COUNSEL FOR THE FIRST RESPONDENT: Ms Burns

SOLICITOR FOR THE FIRST 

RESPONDENT:

Tranter Lawyers

SOLICITOR FOR THE SECOND

RESPONDENT:

Burke Elphick Mead

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ticehurst Foat Lawyers

Orders

1. That the Application in a Case of Ms Gains filed 16 March 2012 is dismissed.

1. That the Application in a Case of Ms Mercer filed 16 March 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meighan & Gains 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 NEWCASTLE

FILE NUMBER: NCC 2827 of 2009

Ms Gains and Ms Mercer

Applicant

And

Mr Meighan & Ms Meighan

Respondent

REASONS FOR JUDGMENT

1. Before me today are two applications for a stay of orders.  There was a hearing in this matter before me over six days in 2011, the 29, 30, 31 August and 1 September and 6 and 7 October. 

2. The proceedings related to the parenting arrangements for one child, L, born in August 2007, now aged four years and seven months.

3. The parties were the two parents and both grandmothers.  There was an independent children’s lawyer.

4. Orders and reasons for judgement were made and delivered on 2 February 2012.  Two Notices of Appeal were filed on 29 February 2012 by the mother, Ms Gains, and by the maternal grandmother, Ms Mercer.  The first return of those Appeals was to be advised by the Appeals Registry.  Ms Mercer stated that the appointment to settle the appeal index is on 19 April 2012 and that the appeal books have been put together, although not yet served.  The Appeal has not been expedited.

5. The mother filed an Application in a Case on 16 March 2012, seeking a stay of all the Orders of 2 February 2012 and an immediate reduction of time between the child and his father.  This application is supported by an Affidavit sworn by the mother on 16 March 2012 and a letter from H Health, which became Exhibit 39. 

6. The maternal grandmother, Ms Mercer, also filed an Application in a Case on 16 March 2012, seeking a stay in identical terms.  Ms Mercer relies on an Affidavit by herself sworn or affirmed on that day.  The applications were listed urgently before me. 

7. The father, Mr Meighan, filed a Response to an Application in a Case, together with an Affidavit today. 

8. The paternal grandmother, Ms Meighan, had filed a Response to an Application in a Case and Affidavit yesterday.  Mrs Meighan was not served because the Appellants had apparently been wrongly advised that Mrs Meighan was no longer a party.

9. The filing of a Notice of Appeal does not usually stay the operation or enforcement of the order appealed from.  A stay will not be granted as a matter of course.  Each matter must be decided on its own facts.  However, the following matters are useful guidelines arising from decided cases:

   i)Would refusing a stay render the appeal nugatory, that is to say, meaningless or ineffective.

   ii)The other party to an appeal is entitled to the benefit of the first instance decision.

   iii)Is there any hardship caused by the granting or refusal of a stay.

   iv)A consideration of the merits of the appeal.

   v)Any delay in seeking the stay.

   vi)The likely delay in the disposition of the appeal.

10. Special consideration must also be given where children are involved.  The child’s best interests are to be regarded as important, although not paramount.  Their welfare must always be in the mind of a Court.  The decision in Clemett& Clemett (1981) FLC 91-013 is authority for the proposition that it is especially desirable to avoid frequent changes in custodial arrangements. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt 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. There may also be circumstances which have arisen after the making of orders, which may be relevant to the exercise of discretion. There is no inflexible requirement to maintain the status quo.

11. Finally, a stay may be granted in part or whole or on conditions.  I will consider the five guidelines: 

(i) Would refusing a stay render the appeal nugatory? 

The two Appellants seek a stay of all orders.  The orders made in February this year, in particular orders 4 to 8 inclusive, provide for a graduating transition for the child to change residence.  Presently, he lives with his mother in the home of his maternal grandmother and her partner.  The transition is to residence with his father.  The two appellants each seek residence for the child as they each did at the hearing.  They continue to live together in the same home.  If the orders continue to unfold, the child will be living with his father and spending time with his mother and maternal grandmother by early June 2012.  It is improbable that the appeals would be heard and determined by that time.  The outcome would, therefore, likely be that the child would have been living with his father for a period of many months by the time the outcome of the appeals is known.  Weight must be given to this aspect.  I accept the submission by counsel for the independent children’s lawyer that to stay the orders would have an immediate disruptive effect by reducing time between the child and his father and then holding him in a position of uncertainty.

(ii) The entitlement of the respondents to the benefit of the judgement. 

The father was successful in his application for the child to come, ultimately, to live with him.  The paternal grandmother was also successful in seeking to spend more time with her grandson through supporting the child’s residence with her son.  They are entitled to build up the relationship with the child and to do and say whatever is necessary to help the child to understand, in four year old terms, that he will be spending more time with his father and less time in his mother’s household, although he will continue to be involved in both households.  That is the ultimate result.

(iii) Hardship caused by a stay. 

There is no immediate irreparable consequence.  The parties all live reasonably close to each other and this will not change.  There was agreement adhering between all parties that the child would continue at W Preschool, although for an increased number of days.  Whichever parent he lived with, his attendance at preschool will continue.  There is consensus that the child enjoys preschool and is benefiting from social contact there.  There is no other apparent hardship to any party.

(iv) The merits of the appeal. 

I am satisfied that each appellant is genuine in their appeal against the orders.  However, there do not appear to be strong grounds of appeal.  No ground involves any error of law.  Accordingly, the appeal is against the discretionary exercise of considering the evidence and what weight was given to particular matters.

(v) In relation to the aspect of delay, the applications for stay were made in a reasonably timely way.

(vi) Final consideration is the disposition of the appeal. 

This matter has not yet come before the appeals registrar.  I do not have specific information but it seems unlikely that the appeal would be heard and determined this year.  It is more likely that in the event of a successful appeal, that the matter would be sent back for re-hearing before another judge.  This has some significance as the child is due to start school in 2013 at a school close to the father’s residence.  He will need to be enrolled and attend events designed to familiarise himself with his school in the third or fourth terms of the 2012 school year.  Uniforms will need to be purchased.  Given the child’s speech difficulties and lack of adequate socialisation with other children prior to 2012, nothing should interfere with a confident entry to school by the child in 2013.  In the event of a successful appeal and after the matter had been heard and determined, if there was then a successful outcome for either of the appellants, the relationship with the child will be in place.  The orders provide for alternate weekends and one overnight in the other week with the maternal grandmother and with the mother, conditional on certain matters.

General Consideration

1. I note, with concern, that the two Appellants each seek residence for the child whilst continuing to live in the same house.  They are, therefore, competitive appellants.  In my view, this is objective evidence of conflict, which I can take into account.  There was evidence before me of “toxic conflict”[1] between mother and daughter over care of the child. This is referred to in the reasons for judgement at paragraphs 39 and 40.[2] 

   [1] The words “toxic conflict” came from Dr R.

   [2] Meighan & Gains & Ors [2012] FamCA 27

2. The maternal grandmother made genuine efforts from the beginning of the child’s life to include the father in the child’s life and this was a point of difference between mother and daughter at times.  The affidavits of the mother and the maternal grandmother allege that since November 2011, the child has not wanted to see his father.  Further, there are many allegations critical of the father’s care and discipline of the child.  These were repeated in oral submissions made by both appellants.  Such as, “Daddy called me a pussy.  I don’t want to sleep at dad’s, I hate it.  Daddy plays rough and likes to hurt me.”  There was reference to crying and hiding before it was time to leave, begging not to go.  There are allegations of sickness by the child, which meant that he was unable to spend the time with his father that he should.  It seems that there has been inadequate communication about speech therapy for the child.  There is abundant evidence that the child is suffering from loyalty conflicts and the dissatisfaction of adults about a change of residence.  Such difficulties in transition were anticipated.

3. The evidence of the paternal grandmother is that the distress reported by the mother and maternal grandmother quickly settles down after the changeover between the families.  There was some support in submissions by the maternal grandmother about that proposition. 

4. I take this matter, that changeovers are a difficult time for the child, into account.  He needs to complete the transition process and stabilise.  I accept the submission that changeovers, being at preschool and school once the child is living with his father, will be considerably easier for him. 

5. The current level of stress is adverse to the child’s interests.  A stay or partial stay is likely to leave him caught in transition with all parties unable to reassure him about the future. 

6. Had the relationships and communications in transition been much better, I might have been able to see some benefit in staying, at least, order 8, if not order 7 as well.

7. However, given the elevated levels of conflict between mother and her mother as to the legal position and between the households as to the orders, I consider that there is a real risk of emotional and psychological harm to the child from being kept in limbo.  This risk, in my view, outweighs the harm of a further change in the event of a successful appeal and re-hearing with a different outcome well down the track. 

8. Accordingly, and for those reasons, I dismiss both applications for a stay of the orders and I hand out those orders accordingly.

costs application

1. There has been an application for costs in this matter on behalf of the paternal grandmother, an application to depart from the usual rule that parties pay their own costs.  There is real merit in the application, given that the paternal grandmother is a party to the proceedings, has a genuine interest in them, filed a response and an affidavit and has consistently taken part in the proceedings at her own expense. 

2. The only reason that I am inclined to decline this application is because of the financial circumstances of the two applicants, both of whom receive Centrelink benefits and who are presently responsible for the financial care of the child.  In those circumstances, I will not make an order for costs but that is not to say that the application was ill founded or without merit.

I certify that the preceding twenty (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 March 2012.

Acting/Associate:    

Date:    23 May 2012