Gillard and Gillard (No 2)

[2015] FamCA 119

FAMILY COURT OF AUSTRALIA

GILLARD & GILLARD (NO 2) [2015] FamCA 119

FAMILY LAW – PRACTICE AND PROCEDURE - Stay of orders pending appeal

Family Law Act 1975 (Cth)

Cape & Cape (2013) FLC 93-549

APPLICANT: Ms Gillard

RESPONDENT: Mr Gillard

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Parramatta Family Law

FILE NUMBER: PAC 383 of 2008

DATE DELIVERED: 6 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 30 January 2015 and 6 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Rachel Stubbs & Associates

FOR THE RESPONDENT: Ms Gillard, mother in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Soliman of Legal Aid NSW, Parramatta Family Law

Orders

1. That the orders made by Justice Johnston on 23 January 2015 are stayed until completion of the Appeal filed on 29 January 2015 and upon the conditions herein.

2. That the Minute of Interim Consent Orders filed in Court today signed by the parents and by Johnston J shall be Exhibit A and that by consent orders are made in accordance with Exhibit A as set out hereunder:-

   BY CONSENT IT IS ORDERED:

   …

   2.That the child [L] (“[L]”) born … 2002 live with the father.

   3.That the children [B] (“[B]”) and [S] (“[S]”) both born … 2005 live with the mother.

   4.That commencing Sunday 8 February 2015, the children spend time with the father from 1.00pm to 4.00pm and each alternate Sunday thereafter, with such time to be supervised by [Ms EF] at [AB Street, Suburb CD] NSW.

   5.That for the purposes of Order 4 herein, changeover take place at [AB Street, Suburb CD] NSW with the Mother to deliver the twins at 12.45pm and the Father to arrive at the [Suburb CD] residence with [L] at 1pm. The Father shall leave the [Suburb CD] residence promptly at 4pm and the Mother shall collect the twins at 4.15pm.

   6.That commencing Sunday 15 February 2015, the children spend time with the mother from 1.00pm to 4.00pm and each alternate Sunday thereafter, with such time to be supervised by [Ms GH] to commence and conclude at [IJ Street, Suburb KL] NSW.

   7.That for the purposes of Order 6 herein, changeover take place at [IJ Street, Suburb KL] NSW with the Father [to] arrive with [L] at 12.45pm and leave the [Suburb KL] residence promptly and [he] will not be accompanied by any other person for changeover. The father shall collect [L] from that residence at 4.15pm.

   8.        That the children have telephone contact with the parents as follows:

   (a)The mother is to have telephone contact with [L] between 6.30pm and 7.00pm each Thursday and Sunday. Such communication is to be between the child and the mother and not to be on speaker phone and L is to have the appropriate privacy to speak to his mother on the phone.

   (b)The father is to have telephone communication with [S] and [B] between 6.30pm and 7.00pm each Wednesday and Friday. Such communication is to be between the children and their father and not to be on speaker phone and the children are given the appropriate privacy to the father on the phone.

   Restraints

   9.That the mother and the father are restrained from making any recordings or requesting that the supervisors do so on their behalf (visual or otherwise) of the children during these supervised periods.

   10.That the father is restrained from discussing with the children and each of them these proceedings or any matter concerning the mother’s parenting of the children.

   11That the mother is restrained from physically chastising the children or any of them.

   12.That both parties are restrained from denigrating the other parent or a member of the other parent’s family in the hearing or presence of the children or any of them.

   13.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. That the conditions referred to in order 1 above are:

   (a)That the father comply with the orders made today.

   (b)That the father apply for the appeal to be listed on the earliest available date for hearing.

   (c)That the father prosecute his appeal expeditiously including to the extent necessary filing as soon as possible an application for an expedited hearing of the appeal.

   (d)That the father comply promptly with all directions made by the Appeals Registrar and approach her within 5 days.

4. That nothing in these orders purports or limit the time otherwise available to the father pursuant to the Family Law Rules 2004 to take the steps referred to herein.

5. That all parties have leave to relist these proceedings before Johnston J on short notice by appointment with Johnston J’s Associate.

IN CHAMBERS:

1. That the mother’s application for a recovery order be removed from the Court’s list of active cases with liberty to relist it by arrangement with the Associate to Johnston J.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilliard & Gilliard (No 2) 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 SYDNEY

FILE NUMBER: PAC 383 of 2008

Mr Gillard

Applicant

And

Ms Gillard

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for stay of substantive parenting orders made by me on 23 January 2015 in relation to three children, L, who was born in 2002, and B and S, both born in 2005.

2. Mr Gillard, to whom for convenience I shall refer to as “the father”, seeks an order that the said orders be stayed until the conclusion of an appeal which he filed on 29 January 2015.  The application for a stay is opposed by Ms Gillard, to whom, for convenience I shall refer as “the mother”.

3. A stay of the substantive orders is also supported by the independent children's lawyer on the basis that it is now a long time since there has been an assessment, particularly of L, including his views, and other evidence relevant to the children's circumstances. 

4. The substantive orders provide to the effect that the mother have sole parental responsibility for the children and that they live with her.  The orders also provide that there be no time between the children and their father for a period of three months, after which there will be limited time between them at a supervised contact centre for six months, and then limited unsupervised time.  The orders have the effect of changing the parenting arrangements most significantly for L who has been living with his father for more than two years and spending no time with his mother.

5. When I handed down the judgement on 23 January 2015 I indicated that the orders required the three children to reside with their mother forthwith.  The mother's solicitor requested the father's solicitor to arrange for the father to deliver L to her at 7.30 pm that evening.  The father declined to do so.  He said he had not had opportunity to peruse the judgment or discuss it with his counsel.  The father subsequently declined to arrange for L to go into his mother's care.

6. The mother asked the police to assist her to achieve L coming into her care.  The father conceded that a police officer informed him that he had had time to consider the orders and that the orders required L to be with his mother.  Still the father declined to do so. 

7. On 28 January 2015 the mother, who is now self-represented, filed an application for a recovery order.  Although the mother sought an ex parte recovery order, the application was brought to my attention and I listed it for hearing at 9.30 am on 30 January 2015. 

8. When the matter came before me at 9.30 am that day, I was informed by counsel for the father that the father had just filed an appeal and that he was seeking orders to stay the substantive orders.  Neither the notice of appeal, the stay application nor the affidavits in support had been served directly on the mother at that point, they having been served apparently on her previous solicitor whom I understand acted on a pro bono basis for the mother in the substantive hearing.  In these circumstances I adjourned the stay application and application for recovery order to later in the day on 30 January 2015, to enable the mother opportunity to read the father's material.

9. The father says that L has become increasingly settled in his care and that in particular he has flourished at school, that he appears to be growing in self-confidence and excelled in sports during 2014.  The father says that there have been difficulties with the children being able to spend time together, alleging that the mother has not permitted them on occasions, but also conceding that he changed some of the dates.  

10. The father's affidavit includes references to behaviour by the children in more recent times, similar to behaviour by them referred to in the reasons for judgment.  That is, further complaints by not only L but also by the twins about their mother.  I had set out in my reasons Dr K's view about such behaviour.

11. I must say, when reading the father's complaints in his affidavit regarding the mother, I had a similar sense to that which I felt during the substantive hearing.  That is that these parents simply cannot communicate or cooperate with one another, which is what I found in my reasons for judgment.

12. The father says that L is distressed about having to return to his mother's care and that he told his father that if he was to go back to his mother he would kill himself.  The father says that since L has found out about the court orders, his behaviour has regressed.  The father says L is also demonstrating a reluctance to go to school, saying he is scared his mother will come to the school and take him.

13. The principles relevant to the Court's consideration of a stay application were affirmed by the Full Court of this Court in Cape & Cape (2013) FLC 93-549. They are as follows:

    ·The mere filing of an appeal is insufficient to ground a stay;

    ·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 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.

14. In my view, L's behaviour, as described by his father, is quite predictable.  It appears to be a continuation of the behaviour about which Dr K has expressed serious concerns.  Dr K also thought, because of the underlying good relationship between L and his mother, L would be able to settle with his mother.

15. I note the first four principles, which I have referred to above. 

16. In relation to the fifth, that is the bona fides of the father, there is no question about his bona fides. 

17. I note that a stay may be granted on conditions. 

18. In my view, the appeal would not be rendered nugatory if the stay was not granted.  What would be involved would be the movement of L from having resided with his father to returning to reside with his mother.  If the appeal was successful, what would happen would simply be a movement of L back to residing with his father.

19. In relation to a preliminary assessment of the strength of the proposed appeal this, in my view, is usually difficult for trial judges and I am unable to form a view one way or another about the strength of the appeal. 

20. Clearly it would be desirable to limit the frequency of change in L's living circumstances.  This is one of the most powerful considerations in favour of granting the stay. 

21. The next matter is the period of time in which the appeal can be heard and whether satisfactory arrangements could support the granting of a stay for a short time.  As I had indicated to the parties, I have made inquiries of the appeal section and am confident that a hearing of the appeal could be listed not later than the end of April this year.

22. The remaining principle is the best interests of the child.  I formed a clear view, on the basis of all the evidence before me in the substantive hearing, that the best interests of the children lay with them being resident with their mother.  However, bearing in mind that provided that satisfactory conditions for the children to have opportunity to spend time with each of their parents can be put in place, as well as the fact that an appeal hearing would be able to be offered no later than, say, within three months from the present time, and also in an endeavour to limit the possibility of changes in L's living arrangements, in my view it is in the interests of these children to grant the stay.

23. But in order to ensure that the appeal is able to be prepared expeditiously and presented expeditiously, I propose to attach numerous conditions to the stay in addition to those which will provide appropriate parenting arrangements between the present time and the hearing of the appeal.  I note that I have just been informed by learned counsel for the father that not only has the appeal been filed but the appeal index has also been filed and the father will also be proposing to file an application for expedited hearing of the appeal.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 6 February 2015.

Associate:

Date:3 March 2015