Groth and Banks (No 2)
[2017] FamCA 36
•31 January 2017
FAMILY COURT OF AUSTRALIA
| GROTH & BANKS (NO. 2) | [2017] FamCA 36 |
| FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Where the father applied for a stay of orders pending the determination of his appeal from final parenting orders – where the application was opposed by the mother – where the father established a proper basis for a stay – application granted. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth), rr 22.11(2) |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| APPLICANT: | Mr Groth |
| RESPONDENT: | Ms Banks |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 865 | of | 2012 |
| DATE DELIVERED: | 31 January 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 20 January 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirkham QC |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Hoult |
| SOLICITOR FOR THE RESPONDENT: | Ian Robertson Legal |
Orders
That the father’s Application in a Case filed 18 January 2017 is granted.
That the operation of the Order of the Family Court of Australia at Melbourne made on 13 January 2017 be stayed pending the hearing and determination of the father’s appeal against the Orders of 13 January 2017 or until further Order.
That the Orders made 1 December 2014 as amended by Orders made 5 October 2015 remain in full force and effect.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Groth & Banks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 865 of 2012
| Mr Groth |
Applicant
And
| Ms Banks |
Respondent
REASONS FOR JUDGMENT
The father brings an Application in a Case, for a stay of final parenting orders. The final parenting orders were made by me on 13 January 2017 following a four day trial. The father has filed a Notice of Appeal which enlivens the machinery in Rule 22.11(2) of the Family Law Rules 2004 (Cth) (“the Rules”).
The application to stay the final orders is opposed by the respondent mother who was also the respondent in the trial.
The child the subject of the parenting orders is J aged six (“the child”).
The child has lived with the mother since birth and was conceived as a result of an artificial conception procedure through the IVF program by arrangement with the father. When the child was born the mother was not married or in a de facto relationship. The parents had lived together in a relationship but separated some eight years before the child was born. The background of the matter is traversed in the reasons for judgment delivered on 13 January 2017 and need not be repeated in detail.
Historically, final parenting orders had been made in a previous trial where Cronin J declared the father to be the parent of the child and also made orders for the parents to have equal shared parental responsibility for the child. The orders provided for the child to live with the mother and to spend increasing time with the father when the child commenced school. The reasons for judgment in that trial were delivered by Cronin J on 11 June 2013.
Under the final orders made by me by consent in the second trial the parents have equal shared parental responsibility for the child.
The final parenting orders made by me provide for the child to live with the mother and permit the mother to relocate with the child to the home of her partner in Town D, Victoria. The orders also provide for the child to spend time with the father each alternate weekend, for half of the school holidays and on special occasions.
The mother lives with the child in Suburb N at the home of the maternal grandparents and the child attends a private school nearby. The father lives with his wife and children in Suburb L about 30-40 minutes drive from the home of the maternal grandparents. The mother sought orders to permit her to relocate the child to Town D and enrol the child in D Primary school where she proposed to live with her partner. Pursuant to interim orders made 1 December 2014 and 5 October 2015 the child spent each alternate weekend and each Wednesday after school until 7.30pm with the father.
The father’s proposals in the trial before me were that the child live with the mother and spend time with the father each alternate weekend and each Wednesday overnight and for half of school holidays and special occasions. However this was on the condition that the mother live within 5 kilometres of the child’s current school and/or within a 10 kilometre radius of the corner of Bourke and Swanston Streets Melbourne. In the alternative the father proposed that the child live with the father and spend time with the mother, but this was not ultimately pressed.
The father and the Independent Children’s Lawyer opposed the mother’s application to move with the child to live in her partner’s home in Town D. The Independent Children’s Lawyer supported the father’s proposals but did not support the alternative application by the father for the child to live with him.
The father’s application
The applicant father by Application in a Case filed 18 January 2017 sought the following orders:
1.That all times be abridged to enable an urgent hearing of this Application;
2.That the operation of the Order of the Family Court of Australia at Melbourne made on 13 January 2017 be stayed pending the hearing and determination of the father’s appeal against the Orders of 13 January 2017 or until further Order;
3.That the Orders dated 1 December 2014 as amended by Orders dated 5 October 2015 remain in full force and effect;
4.Such other Order as this Honourable Court deems fit.
Legal principles
The mere filing of an appeal is not sufficient to ground a stay. Under r 22.11 of the Rules, the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision. However under this rule, if a party has appealed against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal relates.
The onus to establish a proper basis for the stay of an order is on the applicant for the stay. The making of an order for a stay is wholly discretionary and the circumstances which would justify an order for a stay depend on the circumstances of each case.
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton (Stay Appeal)”), the Full Court (Bryant CJ, Boland and Crisford JJ) outlined many of the principles to be applied in determining an application for a stay of orders both in the general law and for parenting proceedings.
At [18] the plurality stated the following:
The principles to be applied in determining an application for a stay of orders both in the general and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
·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 any “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·a person who has obtained a judgment is entitled to presume the judgment is correct;
·the mere filing of an appeal is insufficient to grant a stay;
·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 a 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 the stay for a short period of time; and
·the best interests of the child the subject of the proceedings are a significant consideration.
In Friscioni and Friscioni [2009] FamCAFC 43, the Full Court (Boland, O’Ryan and Le Poer Trench JJ) outlined the relevant principles and stated that in cases where a stay of parenting orders is sought pending an appeal against those orders it has long been recognised that there are other factors that may be relevant. The Full Court referred to Kirby J in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 where he stated:
In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.
The Full Court referred to the importance of considering the consequences for a child of granting or refusing a stay.
In Clemett and Clemett (1981) FLC 91-013 (“Clemett”) Nygh J referred to the welfare of the child as being the paramount consideration in determining whether a stay should be granted (at 76,175). He stated that it is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. His Honour was of the view that it will be appropriate to grant a stay of proceedings for at least a short period if the appeal appears to be based on substantial grounds, is not a mere delaying tactic, it can be dealt with in a reasonable time and the present circumstances of the child are satisfactory.
The evidence
The applicant father relied upon the following documents served on the respondent mother and filed with the Court:
·Application in a Case filed 18 January 2017;
·Affidavit of the father filed 18 January 2017; and
·Written submissions tendered at the hearing.
The mother did not file any affidavit material in response to the father’s application but tendered written submissions.
The proceedings were heard by way of oral submissions from both parties who were represented by counsel. The Independent Children’s Lawyer did not participate in the hearing.
Applicant’s grounds of appeal
The applicant father has appealed the final orders on the following grounds:
(1)Her Honour erred in ordering that the mother be permitted to relocate with the child to [Town D] because on the evidence she ought to have had significant concerns that the relationship between the child and his father would not be maintained in the event that the child resided with his mother in [Town D].
(2)Having made the findings that she did at paragraphs [147], [148], [150], [151], [152], [153] the last sentence of [154] her Honour’s determination to permit the child to be relocated to [Town D] amounted to a departure from the recommendations of the report writer and a departure for which her Honour gave no or no adequate reasons or explanation and in so determining in light of such findings or without adequate reason for so doing (in the light of the opinion of the report writer) her Honour erred.
(3)Her Honour erred in failing to find that the evidence disclosed good reason to be concerned that:
a)the mother does not value the relationship between the child and the father;
b)the mother will not in future value that relationship;
c)the mother will not support that relationship;
d)the mother will not support the child in maintaining the relationship with his father;
e)the mother will in all likelihood give to the child messages of ambivalent restraint such that the child will be pressured to abandon his relationship with his father.
(4)Further, or in the alternative, having regard to the opinions expressed by the report writer in particular in paragraphs [25] – [29], [53] and [56] of his report of 26 November 2015, reaffirmed as remaining his opinion at the time of Trial, then insofar as Her Honour declined to make findings with respect to the matters deposed to in paragraphs [43] through to in [162] of the father’s Affidavit filed 19 October 2016 [sic] and the matters deposed to by the witnesses [Ms Z] and [Ms C] Her Honour erred.
(5)Insofar as Her Honour failed to accept the evidence referred to in paragraphs [43] – [162] of the Affidavit of the father filed 19 October 2015 and the evidence contained within the Affidavits of [Ms Z] and [Ms C] then Her Honour erred.
(6)An acceptance of the evidence referred to in the aforementioned Affidavits could not but give rise, having regard to the report writer’s opinion, to a significant concern that the relationship between the child and his father would not be maintained in the event that the child resided with his mother at [Town D] and insofar as Her Honour failed to express or hold any such concern her Honour erred.
(7)Her Honour erred insofar as her Honour relied upon the seriousness of the allegations contained within the evidence or Part VII, Division 12A of the Family Law Act (Cth) (the Act), in determining not to make findings about the details of the behaviour of the mother referred to in paragraph [149] of her Honour’s reasons particularly given the relevance of such findings to the opinions expressed by the report writer, or alternatively failed to give proper weight to such evidence in her determination.
(8)Her Honour’s determination that the mother’s attitude towards the child whilst spending time with the father had slightly improved since 2015 was contrary to the evidence and a finding not reasonably open on the evidence.
(9)Her Honour erred in paragraph [157] insofar as her Honour found that the father’s complaints with respect to [the online noticeboard] might have been resolved by the father speaking directly to the school.
(10)Her Honour’s finding at paragraph [157] that the mother did not deliberately try to exclude the father from the school [online] noticeboard was contrary to the evidence and not reasonably open on the evidence.
(11)Her Honour’s finding at [158] that the child’s relationship to the father was likely to be sustained on the mother’s relocating the child to [Town D] because her attitude towards the father is likely to improve, or might improve, when her living arrangements had settled and the litigation subsides is contrary to the evidence, unsupported by any of the evidence and contrary to the opinions expressed by the report writer. Insofar as that finding is contrary to those opinions her Honour failed to give any or any adequate reason for departing from the report writer’s opinion in that regard.
(12)Her Honour erred at law in the manner in which she interpreted and applied the principles expounded in CDJ v VAJ (1998) 197 CLR 172 in failing to take account of evidence contrary to her own determination.
(13)Her Honour’s findings at [163] with respect to proposed travel by the child [overseas] and holidaying on the Gold Coast are contrary to the evidence and not reasonably open on the evidence.
(14)Her Honour’s findings at [164] and adverse comments with respect to the father concerning his seeking information with respect to medical issues concerning the child are findings not reasonably open on the evidence and contrary to the evidence.
(15)Her Honour erred at [132] in arriving at a determination in that the father gave the impression of relishing the litigation without first having given the father or those representing him an opportunity to make submissions with respect to such an observation and in arriving at a conclusion adverse to the father in reliance upon the conduct of his Counsel for which the father can bear no responsibility at law.
(16)Her Honour erred in failing to find that the mother excluded reference to the father as an emergency contact at the school and in failing to have regard to that circumstance together with others as indicating an on-going incapacity on the part of the mother to recognise or support the father’s role in the child’s life.
(17)Her Honour erred in failing to recognise and/or find that the circumstance that the child referred to his father [by his first name] in his mother’s presence and her household but otherwise referred to him as “Dad” was indicative of the child’s recognition of his mother’s ongoing continuing and current ambivalence to the father’s role in the child’s life.
(18)Her Honour erred in failing to have any, or any adequate regard to the opinion of the report writer, expressed in oral evidence, that:
a)the mother harboured hostility toward and an inability to accept the decision of Cronin J and that such hostility had persisted to the time of trial and intensified;
b)the mother was unlikely to be able to shift to a position where she sees the father as equal, important and relevant in the child’s life;
c)by persistently asserting that the father did not want a role in the child’s life, the mother projected onto the child her own desire that she did not want the father to have a role in the child’s life;
d)the mother’s conduct toward the father contradicted her stated desire to create a better working environment in that she had difficulty in performing any act that confirmed the father as having an important role in the child’s life;
e)the report writer did not think that there would an improvement in relations between the father and the mother because he did not think that the mother would be able to shift to a position where she saw the father as equal, as important and as relevant in the child’s life as herself;
f)if the behaviour of the mother was as alleged by the father, the prognosis for the child of the risk of future alienation from the father would be high in any relocation.
The submissions
The applicant’s submissions
Counsel for the father relied upon the principles summarised by the Full Court in Aldridge & Keaton (Stay Appeal) and applied in Sullivan & Tyler And Anor(No 2) [2015] FamCAFC 179 and Searle & Mellor [2016] FCCA 2698 (20 October 2016) for the making of a stay pending an appeal.
Counsel for the father argued that the appeal brought by the father is bona fides and raises significant issues of law and significant issues concerning the welfare of the child and his relationship with his father. He referred to the fact that the appeal had been lodged expeditiously, that there was a serious issue to be determined and that all the evidence indicates that the father has a genuine concern for the welfare of the child. He argued, in response to criticism from counsel for the mother, that the fact that the solicitor for the father had indicated in court that the father proposed to lodge an appeal before receiving the orders or the reasons for judgment ought not detract from the bona fides of the application having regard to the fact that the father’s legal team had examined the evidence at the conclusion of the trial before the delivery of the judgment and discussed this with the father.
Counsel for the father relied upon the decision of B & P Boland Nominees v Hobbs [2013] VSCA 66 and the cases cited therein and Sun Alliance Insurance Ltd v Massoud [1989] VR 8 and Smyth v Shire of Murrindindi [2003] VSCA 75 as to the preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case. He emphasised in response to counsel for the mother’s argument that it is a weak case, that it is not a question of whether it is a weak case but whether it is an arguable case. Counsel for the father submitted that it is an arguable case having regard to the deficiencies in the reasons for judgment on the basis of those authorities.
Counsel for the father argued that the balance of convenience favours the granting of a stay. In weighing up the balance of convenience and the competing rights of the parties, counsel for the father argued that if a stay is granted, the child will continue to attend the same school which he attended in 2016, continue to live in the same home in which he has lived since his birth in 2010 and continue to spend time with the father each alternate weekend and each Wednesday evening. He submitted that the granting of a stay would not impose any “significant hardship” upon the mother because she has not yet relocated to Town D and has accommodation and employment in Melbourne. He relied on her evidence in the trial that she could stay in Suburb N but that “she did not want to and chose not to.” Relying upon information provided to the instructing solicitor at the time of filing the appeal, he emphasised that the period of time pending the appeal would be approximately four months and that this would not adversely affect the child if his present accommodation continued for a further four months.
On the other hand, counsel for the father submitted that if the stay was not granted:
(i)The father will have his time with the child reduced by one evening per week;
(ii)The father will be required to undertake extensive travel each alternate weekend in order to spend time with the child; and
(iii)It may lead to alienation of the child against the father by the mother on the evidence of the family consultant.
Counsel for the father submitted that a substantial factor in determining whether it will be appropriate to grant a stay is the weighing of the risk that an appeal may be rendered nugatory if a stay is not granted. Counsel for the father argued that if a stay is not granted and the father’s appeal is successful that:
·the child will relocate to Town D and change schools;
·the child is likely to become settled in Town D and at D Primary School;
·the child will be required to undertake two relocations and changes of school in a short period of time which is likely to be destabilising, compared with only one change and not in his best interests;
·It is likely that the child’s relationship with the father will be detrimentally affected as foreshadowed by the family consultant.
Regarding the principle of the desirability of limiting the frequency of any change in a child’s living arrangements, counsel for the father submitted that the welfare of the child is the paramount consideration and that it is especially desirable that the frequency of any change in custody arrangements should be limited as much as possible. Relying on the decision of Clemett, he submitted that where the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory it would be appropriate to grant a stay of proceedings for at least a short period.
Counsel for the father submitted that the importance of the principle that where a person who has obtained a judgment is entitled to the benefit of that judgment and is entitled to presume the judgment is correct, is diminished having regard to the mother’s ongoing behaviour as described by the father and referred to in the reasons for judgment at [150] to [153].
In summary concerning the best interests of the child, counsel for the father in arguing for a stay of the orders pending appeal, argued that the father has strong grounds for appeal, and if a stay is not granted and the father’s appeal is successful, the child will be required to relocate twice and change schools twice in a short period of time which would be an unnecessary disruption to his life and education. Relying on the opinion of the family consultant, he submitted that it is likely to be detrimental to the child’s relationship with the father if a stay is not granted, because of the mother’s entrenched reluctance to facilitate the child’s relationship with the father.
He further argued that the child would in no way be adversely affected by continuing his present accommodation for a short period of approximately four months.
The respondent’s submissions
Counsel for the mother also relied on the principles for a stay application referred to in Aldridge & Keaton (Stay Appeal) and in Trahn and Long (No 2) [2008] FamCAFC 194. He also relied on Rilak and Tsocas No 2 [2015] FamCA 439; Redmond and Redmond (Stay) [2014] FamCA 382; and Cape and Cape (No 2) [2013] FamCAFC 178.
Concerning the principle that a person who has obtained a judgment is entitled to the benefit of that judgment, counsel for the mother submitted that the mother has been restrained from relocating by virtue of orders made on 18 July 2014 and that her life has been “on hold” since then in terms of her relationship with her partner.
In weighing the balance of convenience and the competing rights of the parties, counsel for the mother submitted that it would be unfair to the mother who is the uncontested resident parent to effectively restrain her from living in 73 per cent of the suburbs in Melbourne. He emphasised that the mother proposes to move with the child some 45 km outside the area proposed by the father and that on the father’s proposals the mother could not live within a 10 km radius of the father’s residence in Suburb L. He further submitted that to restrain the mother from moving may have a net negative impact on the child having regard to the evidence of the family consultant that if the mother were happier, there would be a benefit to the child.
Counsel for the mother argued that any delays implicit in the appeal would be oppressive for the mother given that if the appeal were upheld the matter may be remitted for trial.
Concerning the substantial factor of the risk that the appeal may be rendered nugatory if a stay is not granted, counsel for the mother emphasised that the mother accepts that in the event the stay is not granted and an appeal is successful that she will have to make arrangements to return to the area determined by the Court.
In terms of any preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case, counsel for the mother emphasised that the appeal is from a discretionary judgment.
About the desirability of limiting the frequency in the change of the child’s living arrangements, counsel for the mother submitted that to refuse the stay will not change the fact that the child will continue to live with the non-contested resident parent, will continue to see his father each alternate weekend and the principal change will be the loss of the Wednesday time that the child spends with the father. He further argued that this should be balanced against the desirability of the child’s mother moving on with her life.
Concerning the best interests of the child, counsel for the mother argued that the child has been the subject of court proceedings for five years, that the family consultant noted that the relationship with the mother’s partner appears to offer the mother and the child collectively enormous benefits and that the child views the mother’s partner positively and sees his mother as his primary carer, having an expectation that he will continue to live with her. Counsel argued that it is in the best interests of the child for the mother to benefit from the judgment and that the application pursued by the father at the conclusion of the trial was so restrictive in terms of the geographical residence options proposed that the mother is unable to consider any effective plan or proposal in the future. He emphasised that there is a benefit to the child in moving to live with the mother and her partner in a family orientated environment with the ongoing benefit of spending time with the father.
Counsel for the mother argued that the bona fides of the father are brought into question by his approach to the trial whereby he issued an Application within 13 months of final orders in May 2013, issued five applications (four amended) within a two year period then chose to make further amendment on the last day of trial, and his approach at trial in seeking the restrictive orders effectively preventing the mother from residing with the child in adjacent suburbs to the father. He emphasised that the father notified his intent to appeal before the judgment or orders were given to his solicitor, let alone read.
Conclusion
I have considered the authorities referred to by each of the parties.
There is no controversy between the parties concerning the relevant law and the principles that apply to an application for a stay pending an appeal. The issue concerns the application of the principles to the facts of this case and how the discretion might be exercised.
The welfare of the child is the paramount consideration.
In applying the matters outlined in the decision of Clemett, I have considered and weighed the fact that the frequency of any changes in the custodial arrangements relating to the child should be limited. The child in this case lives with the mother and maternal grandparents and attends school in close proximity to the home of the maternal grandparents. A significant change for the child if a stay is not granted would be a change of school and he would not spend the usual time with the father on Wednesday between after school and 7.30pm. The child would also spend more time travelling in the car in order to spend time with his father every alternate weekend than has previously been the case. Whilst the parenting orders which have been appealed do not provide for any change of primary care and the child has lived with the mother since birth, should the child’s school be changed and the appeal is successful there would be the disruption to the child of starting a new school and then returning to his previous school or some other school in a different location.
I accept the bona fides of the father and that the lodging of an appeal is not merely a delaying tactic. I do not place any weight on the mother’s argument that the bona fides of the father is diminished by his solicitor notifying his intent to appeal before receiving the orders or the reasons for judgment.
The father has an arguable case because the determination of the trial required a delicate balancing of complex issues.
On the basis of the evidence of the family consultant and my findings about the negative attitude of the mother towards the father, the lodging of the appeal is unlikely to improve her attitude. The effect on the child of the ongoing dispute between the parents is an important consideration pending an appeal, given the cautionary evidence of the family consultant. The restriction upon the mother has continued for about two and a half years, but she is not restrained from continuing to spend time with her partner and the child at Town D on alternate weekends. The mother is entitled to the benefit of the judgment and to presume that the judgment is correct, but her attitude has been a significant factor giving rise to the litigation.
A significant consideration here is the weighing of the risk that an appeal may be rendered nugatory if a stay is not granted. This issue is intertwined with the welfare of the child in this case. If a stay is not granted and the father’s appeal is successful, the child will be required to commence school at Town D and then return to his previous school. The father is concerned that it is likely that his relationship with the child will be adversely affected as foreshadowed by the family consultant if the relationship between the parents remains fractured. The relationship between the parents is unlikely to improve in the shadow of a pending appeal.
Without a stay, there will be a change in the spend time arrangements and the necessary changeovers. The parents sharing in the driving would require cooperation, which is unlikely to occur in the face of continuing litigation and the absence in the trial of any practical proposals for changeover by the father in the event that the child lived in Town D. This context combined with the continuing litigation will inevitably impact adversely upon the child given the history of friction between the parents. There was no evidence in the trial about the child having any difficulty in changing schools but there will be no adverse impact on the child continuing to attend his present school until the appeal is determined.
I have considered the obvious advantages for the child in starting a new school at the commencement of the school year rather than during the school year, but the delay of some four months involved in the listing of the appeal is reasonably short and the father has undertaken to make an application for an urgent hearing. Should the appeal be successful the child may not have to change schools. There is no evidence about any imminent change to the continuing availability of the accommodation for the mother and child with the maternal grandparents.
A stay must be granted on terms that are fair to both parties and I have carefully weighed the balance of convenience and the competing rights of the parties. If a stay is not granted, the child will continue to live with the non-contested resident parent, but the spend time arrangements will require co-operation. If the orders are not stayed, the child will have to adjust to the new spend time arrangements whilst the parents deal with the uncertainty surrounding schooling. Whilst the child is experienced in travelling between Town D and Melbourne, it is another proposition altogether for the parents to co-operate with a change in the spend time arrangements in the midst of continuing litigation.
If a stay is granted, the mother will continue to feel the restraint of court orders which have prevented her from living full time with her partner and the child in Town D for over 30 months. However, the beginning of the school year is imminent and little planning or discussions to prepare the child for such a change can be made in the few days available. Should the father’s appeal be unsuccessful, the child will be moving schools after the school year has commenced. There was no evidence in the trial that there are any issues with the child’s schooling or that he is having any problems other than the issues between the parents.
I am satisfied that in weighing these competing factors that the balance of convenience favours the granting of a stay of the orders pending appeal.
Having weighed and examined all of the facts of this case as they apply to the competing principles outlined earlier, I am satisfied that the father has established a proper basis for the making of a stay of the orders made on 13 January 2017 and I am satisfied that the welfare of the child dictates that the father’s Application in a Case should be granted.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 31 January 2017.
Associate:
Date: 31 January 2017
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