GALANIS & MACRIS (No.3)
[2015] FCCA 2744
•9 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALANIS & MACRIS (No.3) | [2015] FCCA 2744 |
| Catchwords: FAMILY LAW – Stay – application for stay of earlier stay orders – principles considered – parenting proceedings – previous stay of parenting Orders discharged. |
| Legislation: Family Law Act 1975 (Cth), s.60CA |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Galanis & Macris [2015] FCCA 2567 Galanis & Macris (No.2) [2015] FCCA 2729 Macris & Galanis [2015] FCCA 2623 |
| Applicant: | MS GALANIS |
| Respondent: | MR MACRIS |
| File Number: | WOC 576 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 17 August 2015 |
| Date of Last Submission: | 17 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gould |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Rita Thakur & Associates |
ORDERS
Order 1 made on 22 July staying the operation of Orders 4, 5, 6, 7 and 8 made on 12 June 2015 is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Galanis & Macris (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 576 of 2010
| MS GALANIS |
Applicant
And
| MR MACRIS |
Respondent
REASONS FOR JUDGMENT
Application in a Case
This is an Application for a stay of Orders made on 22nd July 2015 staying parenting Orders made on 12th June 2015[1] and property Orders made on 30th June 2015[2] pending an Appeal by the Respondent.
[1] Galanis & Macris [2015] FCCA 2567
[2] Galanis & Macris (No. 2) [2015] FCCA 2729
On 22nd July 2015 I made the following Orders:
(1)Orders 4, 5, 6, 7 and 8 made on 12 June 2015 are stayed pending the determination of the Appeal lodged by the father on 9 July 2015 in proceedings Number EA 108/2015; and
(2)Order (1) made on 30 June 2015 is stayed pending the determination of the said Appeal in proceedings EA 108/2015 on condition that the husband pay to the wife the sum of $50,000.00 by way of interim property settlement within 42 days of the date of these Orders.[3]
[3] Macris & Galanis [2015] FCCA 2623
On 23rd July 2015, the day after the above Orders were made, the Applicant lodged an Appeal seeking the following orders:
1. Appeal be allowed.
2. That the Stay Orders made 22 July 2015, in relation to the parenting proceedings, be set aside.
3. That Orders 4, 5, 6, 7 & 8 of the Orders made 12 June 2015 be reinstated.
4. That in the alternative that the proceedings be remitted for re-hearing to the Federal Circuit Court by a Judge other than Judge Scarlett.
5. That the Respondent pay the Applicant’s costs of the appeal.
Orders Sought
The orders sought in this Application are:
1. That this application be urgently listed.
2. That leave be granted to serve this Application on short notice.
3. That pending the determination of the appeal the Orders made 22 July 2015 be stayed and the Orders made 12 June 2015 be reinstated pending the determination of the Mother’s Appeal filed 23 July 2015 file number EA 119/2015.
4. That in the alternative that an interim hearing date be set for determination of the interim parenting orders pending the Father’s appeal; filed 9 July 2015.
5. That the parties are granted leave to file a Minute of Order and further affidavit in support of the interim parenting orders sought.
Parenting Orders
The current Application does not seek to stay the stay Order on the property Orders made on 30 June 2015 but the parenting Orders made on 12th June 2015, more particularly being Orders 4, 5, 6, 7 and 8. Those Orders are as follows:
(4)The children X and Y are to live with the Mother.
(5) The Father is to spend time with the children as follows:
(a)Each alternate weekend during the school term from immediately after school on Friday until the commencement of school on the following Tuesday;
(b)For half of each of the Autumn, Winter and Spring school holiday periods, being the first half in 2015 and all odd numbered years thereafter and the second half in 2016 and all even numbered years thereafter;
(c)For two weeks during the Christmas/January school holidays, commencing at 9:00 am on 2 January in each year and concluding at 5:00 pm on 16 January in each year;
(d)From 5:00 pm on the Saturday immediately prior to Fathers’ Day until the commencement of school on the following Tuesday;
(e)On each of the children’s birthdays if the children are not otherwise in the Father’s care in accordance with these Orders, from immediately after school until 7:00 pm if the birthday falls on a school day or from 10:00 am until 2:00 pm if the birthday falls on a day when the children are not required to attend school;
(f)On the Father’s birthday if the children are not otherwise in the Father’s care in accordance with these Orders, from immediately after school until 7:00 pm if the day falls on a school day or from 10:00 am until 2:00 pm if the Father’s birthday falls on a day when the children are not required to attend school;
(g)From 12:00 noon on Christmas Eve until 2:00 pm on Christmas Day in 2015 and all odd numbered years thereafter;
(h)From 2:00 pm on Christmas Day until 6:00 pm on Boxing Day in 2016 and all even numbered years thereafter;
(i)At Orthodox Easter if the children are not otherwise in the care of the father in accordance with these Orders on the weekend that Orthodox Easter falls, from 2:00 pm on Orthodox Easter Sunday until the commencement of school the next day or 10:00 am if the following day is not a school day; and
(j) At such other times, if any, as the parties shall agree.
(6) To avoid confusion, for the purposes of the above Orders:
(a)The parties’ time with the children for the first half of the Autumn, Winter and Spring school holiday period will commence at 9:00 am on the Saturday immediately after the end of the school term and conclude at 12:00 noon on the middle Saturday of the school holiday period; and
(b)The parties’ time with the children for the second half of the Autumn, Winter and Spring school holidays will commence at 12:00 noon on the middle Saturday of the school holiday period and conclude at 5:00 pm on the day immediately before the children are required to attend school at the commencement of the next school term.
(7)Changeovers in accordance with the above Orders are to take place at the children’s school as the case may be and on other occasions the Father is to collect the children from the Mother’s residence at the commencement of the children’s time with him and the Mother is to collect the children from the Father’s residence at the conclusion of their time with him, unless the parties agree otherwise in writing.
(8)Notwithstanding the above Orders, the Father’s time with the children is to be suspended on the following occasions:
(a)From 5:00 pm on the Saturday immediately prior to Mothers’ Day until the commencement of school on the day immediately after Mothers’ Day;
(b)At Orthodox Easter if the children are not otherwise in the care of the Mother in accordance with these Orders on the weekend that Orthodox Easter falls, from 2:00 pm on Orthodox Easter Sunday until the commencement of school the next day or 10:00 am if the following day is not a school day.
Evidence and Submissions
The Applicant relied on her affidavit sworn or affirmed on 22nd July 2015. The Applicant deposed that she had been very concerned about the parties’ daughter X’s stability and mental health. The Applicant stated that she had concerns about the child’s anxiety and her continual requests to change the original parenting arrangements. The child would regress to talking like a baby and become very quiet prior to and following visits with her father. The Applicant stated that the symptoms were at their worst following significant block periods of time with her father.
As to the parenting Orders made by this Court, the Applicant deposed:
Orders were made by this Court on 12th June 2015 which Mr Macris and I implemented immediately. I informed the children what the new arrangement was as soon as I received the Orders. The children did not appear worried, concerned or upset. X was very happy about this. I noticed an instant change in X’s behaviour since those orders were made and when I informed her of the change to the parenting arrangement.
It had been four weeks since those Orders were made when the Orders were originally stayed by this Court on 17 July 2015…
I am unaware how soon my Appeal can be heard by the Court however if the Orders made 22 July 2015 are not stayed the children will again be stuck in a parenting arrangement that they are both unhappy with. I am concerned that this will result in X simply refusing to spend time with her father.[4]
[4] Affidavit of Ms Galanis 22.7.2015 at paragraphs [13]-[15]
Mr Gould of Counsel who appeared for the Applicant submitted that the parties had employed the new regime after the Orders were made on 12th June. It was estimated that there would be a 12 to 18 month period for the Appeal to be heard but there was an application for expedition.
Mr Millar of Counsel for the Respondent submitted that the Applicant’s expressed “concerns” about the child X have no weight unless the Court has the factual information. The Father had given direct evidence about conversations with the children. The Mother’s evidence about the effect of the earlier arrangement on the children has no weight.
It was further submitted that the children had been in an equal shared care arrangement for five years and the configuration of that arrangement has applied for the last four and half years. There has been a longstanding status quo. The original stay was granted to protect the integrity of the Appeal.
The Applicable Principles
I have previously described the decision of the Full Court of the Family Court in Aldridge & Keaton (Stay Appeal)[5] as “a helpful guide for trial judges dealing with applications for a stay pending the determination of an appeal against parenting orders”[6] and I propose to consider this Application in the light of the principles enunciated in that decision at [18].
[5] [2009] FamCAFC 106
[6] Macris & Galanis (supra) at [19]
The following principles appear to be relevant:
a)the onus to establish a proper basis for a stay is on the applicant for the stay, but it is not necessary to demonstrate any “special” or “exceptional” circumstances;
b)a person who has obtained a judgment is entitled to the benefit of that judgment;
c)a person who is obtained a judgment is entitled to presume the judgment is correct;
d)the bona fides of the applicant;
e)a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted;
f)some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
g)the desirability of limiting the frequency of any change in a child’s living arrangements;
h)the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
i)the best interests of the child (or children, in this case) are a significant consideration.
These, to my mind, are the more relevant considerations.
Conclusions
The arrangements for the children are the pressing issue in this case. The parents immediately instituted the change to the arrangements once the original Orders were made on 12th June. Thus, the granting of the stay on 22nd July saw the arrangements revert to the earlier position.
It may have been that I overlooked the fact that the parties had acted promptly once I made the earlier Orders and changed the arrangements for the children. However, those changes were put in place.
It is certainly desirable to limit the frequency of any change in the children’s living arrangements, but they have already been changed. I do not know when the Appeal against the decision of 22nd July will be heard or when the Appeal against the Orders in the substantive proceedings will be heard.
It has been put by Counsel for the Father that the children had been in a shared care arrangement by arrangement with the parties for five years and in the later configuration of those Orders for four and a half years, since the Consent Orders were made on 28th February 2011.
In the parenting decision at [128] and [129] I referred to those consent Orders and expressed the opinion that they were not, as the Father contended, in accordance with the recommendation of Dr H. At paragraph [145} of the decision I stated:
I am of the view that a continuation of the equal shared care arrangement is not a suitable long term arrangement. An increase in the amount of time that X spends with her mother would appear to meet her needs and would be in her best interests. Y would not necessarily approve spending less time with his father but he appears to be an adaptable child.
I am still of that view. However long it will be until the various appeals can be heard, I am of the view that the Orders I made on 12th June 2015 were in the children’s best interests and I consider that those arrangements should continue. The school term has just started and it would appear that these parenting arrangements should be put in place immediately.
I have considered the alternative proposal of an interim parenting hearing but I do not see any benefit in following that course.
I propose to grant the relief sought in proposed Order 3 in the Application in a Case. Order 1 made on 22nd July 2015, staying the operation of Orders 4, 5, 6, 7 and 8 made on 12th June 2015 will be discharged. This will mean that those Orders will come back into force.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 9 October 2015
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