Grant and Curtis

[2008] FamCA 728

FAMILY COURT OF AUSTRALIA

GRANT & CURTIS [2008] FamCA 728

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings –Pending review of senior registrar’s decision.

Family Law Act 1975 (Cth)

FATHER: Mr Grant

MOTHER: Ms Curtis

MATERNAL GRANDMOTHER: Mrs Curtis

FILE NUMBER: MLC 1992 of 2008

DATE DELIVERED: 15 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 August, 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Mr N.A. James

SOLICITOR FOR THE FATHER: O’Farrell Robertson, McMahon

THE MOTHER: In person

THE GRANDMOTHER: In person

INDEPENDENT CHILDREN’S LAWYER Agricola Wunderlich & Assoc.

COUNSEL FOR THE I.C.L. Mr. Whitchurch

Orders

1. That the mother have leave to withdraw the application filed by her on 18 July, 2008. 

2. That the maternal grandmother have leave to make an oral application for an order that the orders made herein on 30 April, 2008 be stayed, pending determination of the review application filed by her on 28 May, 2008 (“the review proceedings”). 

3. That the maternal grandmother’s application for a stay be dismissed. 

4. That if the maternal grandmother seeks orders in the review proceedings other than those set out in her application filed 28 May, 2008, she advise the parties and the court by letter, on or before 25 August, 2008 and in the letter set out with specificity the parenting orders she seeks in the review proceedings.

5. That each of the parties file and serve any affidavits on which they intend to rely in the review proceedings by 1 September, 2008 and no affidavit be filed after that date, save with the leave of the court.

6. That the independent children’s lawyer have leave to file and serve subpoena returnable on a Tuesday up to and including 2 September, 2008.

7. That the reasons for judgment this day be transcribed and copies made available to the parties. 

8. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES
That the application filed by the maternal grandmother on 28 May, 2008 is now fixed for hearing on 4 September, 2008, not 5 September, as initially advised. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1992 of 2008

MR GRANT

Father

And

MS CURTIS

Mother

And

MRS CURTIS

Maternal Grandmother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 30 April competing applications for interim parenting orders came before Senior Registrar Fitzgibbon.  On that day, having heard from the parties and from counsel for the father and the independent children’s lawyer, he made a number of parenting orders.  Pursuant to those orders the mother, the father and the maternal grandmother, being the parties to the litigation, have equal shared parental responsibility for two children, J and T. 

2. Until further order, the children were to live with the father during school terms on three consecutive weekends out of four, for half school term holidays and on special days which I do not need to detail. 

3. The orders provided for the children to live with the mother during school terms on each fourth weekend, that being the one weekend out of four on which they would not be with their father.  They were also to spend time with her on special days, such as Mother's Day, and at other times as agreed between the mother and the maternal grandmother.

4. Pursuant to the orders, the children were to live with the grandmother at all other times. 

5. A number of orders made by the senior registrar related to changeovers, injunctions in respect of the parties' use of alcohol and drugs, random drug screens and the children’s schooling.

6. On 28 May, within time, the grandmother filed an application to review the decision of the senior registrar.  It is clear from that application and the affidavit she filed in support of it that she saw the evidence on which the court relied, particularly the evidence of Ms N, the psychologist who prepared a family report, as unfair and biased, to use her words.  She believes that the orders are not in the best interests of the children because they impinge on the time (quality time, are the words she uses) they can have with their mother; in her opinion they amount to psychological abuse of the children.

7. The order she sought when she filed that application on 28 May would provide for the three parties to have equal shared parental responsibility for the children.  The children would live with the mother, save when the mother “needed access to any treatment for physical health problems” and they would have access with the father (what is now called time) on each alternate weekend, during the Christmas school holidays and on special days.  The orders she sought would mean less holiday time with the father than is provided in the orders of 30 April, 2008.  Importantly, the children would be with their father on each second weekend, rather than on three weekends out of each four.

8. The grandmother has today filed, with leave, another two affidavits.  One is responsive to an affidavit filed by the husband when he filed his response on 14 August.  One is more general, relating to concerns which, she says, have recently arisen.  The mother, too, has filed an affidavit today.

9. On 18 July the mother filed an application in which she sought that the operation of the orders made by the senior registrar “be set aside, pending the review hearing”.  It amounts to a stay application.

10. As I explained to the mother and grandmother earlier, a party can only seek a stay of an order in these circumstances if he or she has taken steps to appeal or review those orders.  The mother herself has not sought to review the senior registrar's decision.  She has explained to me that problems with legal aid meant she was out of time but she supports her mother's application for review.  In order to ensure the issues are determined, I have granted the mother leave to withdraw that application and granted the maternal grandmother leave to make an oral application in identical terms.  Thus, the court is determining the very matter raised by the mother in her application of 18 July, but on the application of the grandmother. 

11. The judgment of the senior registrar sets out the material on which he relied.  It is correct that he placed significant weight on the report of Ms N.  A strong theme of Ms N’s report is that J has, in her opinion, a desire to spend time with his father.  In her opinion, the anger which he is directing at his mother arises from his belief that his desire to see his father is denied and misinterpreted by his mother and his grandmother.  Their perspective is, of course, entirely different. 

12. The mother and grandmother say, based on observations of the behaviour of J and T, on things said to them by the children, and of observations of others involved in the children's life, that these orders are impacting detrimentally on the children.  It is their submission the orders are having adverse psychological effects and the children are being “frightened into not saying anything”.  The inference is that they are frightened into not talking about inappropriate behaviour in the father’s home.  The grandmother told me this morning that T is teary and has wet herself, and the behaviour of both children has deteriorated.  The mother and maternal grandmother allege the father speaks with the children about the case and the court proceedings, and inappropriately involves them in the litigation.

13. There is also reference in the senior registrar’s decision to the evidence of Dr C, a psychiatrist, who saw both of the parties.  The mother has had long-standing psychiatric problems and some problems with drug abuse.  She has a treating psychiatrist, who has diagnosed her with a borderline personality disorder.  Dr C was comfortable with that diagnosis.  She has also had to undergo extensive treatment for burns arising out of an apparent attempt at self-immolation in 2002.  The father, according to Dr C, had at least one depressive episode as a teenager and psychological problems in the late 1990s, associated with drug abuse.  Dr C referred to his tendency to excessive alcohol consumption and some personality problems, including a tendency to dependency, referable to reliance on drugs and alcohol.

14. Both parties have been required to undertaken drug screens.  Both say they are no longer using.  Both say they have not used since last year.  The grandmother does not accept that the father is not using drugs, despite the clean screens that have been provided.

15. I say all that by way of background, to indicate the complexity of the matters before the registrar.

16. A stay in the operation of a decree suspends the operative effect of that decree; for the duration of the stay the orders involved do not confer any rights upon the person who has obtained it.  Thus, if a stay were granted of the order made by the senior registrar, the father would not exercise time with the children under it.  What would come into operation (in respect of his time with the children) would be the orders that predated it.

1. The basic principle, laid down in a number of cases, is that there is no stay of proceedings, or in the enforcement of an order pending an appeal, or a review, unless the contrary is ordered by the court.  That upholds the well-recognised principle that a successful litigant should not be denied the fruits of the litigation.

2. In determining whether to grant a stay, a court needs to take into account the grounds and merits of any review or appeal, any undue delay between the time the original order was made and the filing of the application for a stay, the bonafides of the applicant for a stay and the length of time it will take for the appeal or review to be heard.  In all cases involving children, the interests of children must be taken into account.  It is a discretionary matter and the discretion must be exercised judicially.

3. In this case it is not useful for the court to place much weight on the merits of the appeal.  As I have said to the parties, the review proceeding is a rehearing, from the beginning.  The judge's starting point is not the registrar's decision.  He or she will determine the case on the evidence then before the court.  Each of the parties has filed additional evidence and I will make orders relating to the filing of further evidence.  The case the registrar heard may be very different to the case the judge hears in due course.  For that reason, it is difficult to look at the merits of the substantive applications.  What I can say is that, on its face, the judgment of the senior registrar is a cogent and well-reasoned judgment, based on the evidence before him. 

4. The grandmother filed her review application speedily but did not file an application for a stay.  The review application does not, of itself, constitute a stay, nor does any appeal.  She acts for herself and she may not have realised that if she wanted to stay the orders in the meantime, she needed to bring another application.  Alternatively, it may be that it is subsequent events that have persuaded her that it is necessary to do so.

5. The mother's application for a stay was filed on 18 July, some two and a half months after the orders were made.  Again, she is not legally represented and that may explain the delay.  In any event, that application has been withdrawn.

6. I do not make any adverse findings about the bone fides of the applicant for the stay.  The mother and grandmother have been involved in this case for a long time and I do not think that would be useful.  The review will be heard within some three weeks.  Delay is not an issue. 

7. Each party places significant weight on the best interests of the children as supporting, variously, their arguments for and against a stay.  The independent children's lawyer does not support a stay pending the review. 

8. It is of relevance that the orders the grandmother seeks in the review are, on the face of her material, orders providing for the father to spend alternate weekends with the children.  She has not sought that he spend no time with them.  It is thus hard to see how a continuation of the current regime until the review is heard will damage them. 

9. Balancing all the evidence before the court, I am not satisfied that a stay should be granted.  I will make a number of orders designed to facilitate the hearing of the review at the beginning of September.  The parties must realise that will be another hearing “on the papers”, without cross‑examination. 

10. If the grandmother seeks orders other than those set out in her application filed on 28 May she is to advise the parties and the court, by letter, by 25 August, 2008. 

11. Each party may file additional material but there must be an end to it; all affidavits are to be filed by 1 September. 

12. I suggest the ICL consider the material filed today by the grandmother and mother, and consider whether any subpoenas need to be file, addressed (for example) to a school.

13. My reasons for judgment will be transcribed and a copy will be made available to the parties.  I will do my best to ensure that the reasons are provided prior to the date fixed for the hearing of the review application. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown AM

Associate: …

Date: