Hotchkiss & Marek (No 2) - [2021] FedCFamC2F 598

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hotchkiss & Marek (No 2) [2021] FedCFamC2F 598

File number(s): MLC 8449 of 2017

Judgment of: JUDGE DAVIS

Date of order: 10 December 2021

Date of reasons 16 December 2021

Catchwords: FAMILY LAW – STAY – REFUSAL TO GRANT STAY PENDING APPEAL OF INTERIM PARENTING ORDERS – Mother’s application for a stay of interim parenting orders pending the determination of her appeal of those orders – where the refusal of the stay had the effect of restoring long-standing time arrangements made pursuant to final consent parenting orders in a previous proceeding – the significance of the best interests of the children pending the determination of the appeal and factors relevant to the ascertainment of those interests – the identification and role of the status quo – judicial impression, or preliminary assessment, of the prospect of the substantive appeal succeeding – stay refused.

Legislation: Family Law Act 1975 (Cth), ss.62G, 65DAA

Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Beckford & Beckford (No. 2) [2020] FCCA 2775
Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
CSN & JBN(Full Court) (1998) 24 Fam LR 174
Clemett & Clemett (1981) FLC 91-013
Groth & Banks (No. 2) [2017] FamCA 36
K & B (2006) FLC 93-288
Hotchiss & Marek [2021] FedCFamC2F 456
Sheldon and Weir (Stay Application) [2011] FamCAFC 5
Stefanovski v Digital Central Australia (Assets) Pty Ltd [2017] FCA 1121
Rice and Asplund (1979) FLC 90-725

Division: Division 2 Family Law

Number of paragraphs: 97

Date of last submission/s: 3 December 2021

Date of hearing: 3 December 2021

Place: Melbourne

Counsel for the Applicant: Mr Atkinson

Counsel for the Respondent: Mr Combes
ORDERS

MLC 8449 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HOTCHKISS

Applicant

AND:
MR MAREK

Respondent

ORDER MADE BY:

JUDGE DAVIS

DATE OF ORDER:

10 DECEMBER 2021

DATE OF REASONS

16 DECEMBER 2021

THE COURT ORDERS THAT:
1.Paragraphs 1-5 of the Mother's Application in a Proceeding filed 30 November 2021 be dismissed.
2.Pursuant to section 68L(2) of the Family Law Act 1975 the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and
(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

AND THE COURT NOTES THAT:
A.At the hearing, the Mother withdrew her application for reportable family therapy made by paragraph 6 of her application in a proceeding filed 30 November 2021 with the agreement of the father that such withdrawal was without prejudice to the Mother's right to make such an application at a later stage if so advised.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hotchkiss & Marek has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DAVIS
THE APPLICATION AND AN OVERVIEW OF ITS CONTEXT

This is the return of an Application in the Case filed 30 November 2021 (Application) by the Applicant mother (Mother).
The primary relief sought by the Application is a stay pending the hearing and determination of the Mother’s appeal of interim orders made by Judge O’Shannessy on 25 November 2021 (Judge O’Shannessy’s orders). On that day, Judge O’Shannessy delivered ex tempore reasons for making those orders.[1]
[1] Hotchkiss & Marek [2021] FedCFamC2F 456 (Hotchkiss & Marek).
The Application is made in the context of a proceeding commenced by the Mother on 8 September 2021 (Current Proceeding) by which, in essence, she seeks to vary final parenting orders made by consent by Judge Wilson, as his Honour then was, on 7 November 2018 (2018 final consent parenting orders).
In the Current Proceeding the Respondent (Father) filed his Response to Final Orders on 1 October 2021. By that Response the Father sought orders, in effect, that the Current Proceeding be dismissed and that the Mother pay his costs. As will be developed below, the Father submitted that the Current Proceeding ought be dismissed pursuant to the principles in Rice and Asplund.[2]
[2] (1979) FLC 90-725.
There are two children of the marriage, being X born in 2013 and Y born in 2015 (Children).
Amongst other things, the 2018 final consent parenting orders allocated fortnightly time during term such that the Children spend nine nights with their Mother and five nights with the Father.
For reasons which I develop later, after an incident in August of this year, arrangements for time to be spent by the Children respectively with the Mother and the Father – to put it neutrally – were not carried out as provided by the 2018 final consent parenting orders.
As counsel for the Mother, submitted to me: “it’s absolutely acknowledged, your Honour, that those orders, made 7 November ’18, had run on a 9-5, 5-9 basis – five nights to the Father during term and nine to Mother – through to the incident on 13 August ’21 ...”.
Following that incident, the Mother, in effect, caused time under those orders to halt. Counsel did not address me in any detail on the precise circumstances and manner in which the Mother caused this to occur. The Mother’s counsel submitted to me that, after the incident, initially the Mother ceased to provide the Children into the Father’s care. He submitted that, subsequent to this, the parties’ solicitors agreed that there be supervised time at daytime.
The Father has brought a contravention application in connection with that suspension of time. That application was not before me; it has been listed for hearing before Her Honour Judge Cope commencing 15 March 2022 at 10.00am in Cairns for two days.
In broad terms, by the Current Proceeding, the Mother seeks interim and final relief suspending the 2018 final consent parenting orders and substituting them with orders for supervised time during the day.
Amongst other things, Judge O’Shannessy’s orders provided that:
1.The [2018 final consent parenting orders] operate in full force and effect including but not limited to term time (order 4d); school holidays (order 4f), Christmas (order 4(i)) and changeover (orders 8 and 9).
2.For the purpose of the orders of the [2018 final consent parenting orders], and order 1 herein, the Father's time pursuant to Order 4(d)(i) (week 1), recommences on Friday 3 December 2021 and the Father's time pursuant to 4(d)(ii) (week 2), recommences on Wednesday 8 December.
Judge O’Shannessy’s orders also directed the parties to take various steps, some of which I identify below. However, the Mother does not seek to stay those orders.
A significant focus of the Application, insofar as it sought a stay, was to arrest – pending appeal – the recommencement of overnight time between the Father and the Children.
I extract below each of the orders sought by the Application:
1.That Orders 1 & 2 of the Orders of 25 November 2021 be stayed pending the outcome of Appeal
2.That times be abridged and this Application listed on an urgent basis.
3.Paragraphs 4-9 inclusive of the [2018 final consent parenting orders] be suspended until further order.
4.The Children of the marriage, X born in, 2013 and Y born in 2015 (“the children” spend time with the father as follows:
a)   On each alternate Sunday from 12.00 p.m. until 5:00 p.m.
b)   On each Wednesday from the conclusion of school until 6:30 p.m.;
c)   For Christmas 2021, on Christmas Eve from 3:00 p.m. until 7.00 p.m;
d)   As otherwise agreed in writing.
5.Save for changeovers at school, changeovers occur outside the Village cinemas ticketing box, C Shopping Centre, unless otherwise agreed AND FURTHER, the parents attend such changeovers in the absence of third parties, save in the case of an emergency.
6.That the parties and children attend upon Ms Q or such other psychologist as agreed between the parties for the purposes of reportable family therapy at the joint expense of the parties.
At the hearing before me, counsel for the Mother withdrew the prayer for relief reposed in paragraph 6 of the Application, without prejudice to her right to agitate for such relief at a later time. The Mother did not press for the relief sought by that paragraph in the context of a bipartisan application for the appointment of an Independent Children’s Lawyer to which I acceded.
It will be apparent, then, that paragraph 3 of the Application seeks the suspension of paragraphs 4 to 9 of the 2018 final consent parenting orders which remain in effect pursuant to paragraph 1 of Judge O’Shannessy’s orders. Judge O’Shannessy’s reasons reproduce each of the 2018 final consent parenting orders.[3] In order to provide a better sense of what is sought by paragraphs 1 and 3 of the Application – as well as the allocation of time pursuant to the 2018 final consent parenting orders in the past – I extract the following from those orders:
[3] Hotchkiss v Marek at [16].
1.All previous interim parenting orders be discharged.
2.The parties have equal shared parental responsibility of the children of the marriage namely X born in 2013 and Y born in 2015 (“the children”).
3.The children live with the mother.
4.The children spend time and communicate with the father as follows –
Fortnightly schedule
a.        commencing from the date of these orders until 6 November 2018 –
i.in week 1, from 5.30pm Friday until 8.15am Monday, and in the event Monday falls on a public holiday time shall conclude at 5.30pm, and each alternate weekend thereafter;
ii.in week 2, from 4.00pm Thursday until 8.45am on Friday each alternate week thereafter;
iii.       changeovers shall occur –
1.on Fridays at 8.45am and 5.30pm at the R Service Station on Suburb E (“the R”);
2.on Mondays at 8.15am and 5.30pm if they fall on a public holiday at the R; and
3.on Thursdays at 4.00pm with the father to collect both children from X’s from kindergarten;
b.        commencing 7 November 2018 until 21 December 2018 –
i.in week 1, from 5.30pm Friday until 8.15am on Monday, and in the event Monday falls on a public holiday time shall conclude at 5.30pm, and each alternate weekend thereafter; and
ii.in week 2, from 5.30pm Wednesday until 8.45am on Friday and each alternate week thereafter.
iii.changeovers shall occur –
1.on Fridays at 8.45am and 5.30pm at the R;
2.on Mondays at 8.15am and 5.30pm if they fall on a public holiday at the R; and
3.on Wednesdays at 5.30pm at the R;
c.        commencing 29 January 2019 until 18 December 2020 –
i.in week 1, from after school on Friday until 8.45am on Monday, and in the event Monday falls on a public holiday time shall conclude at 5.30pm, and each alternate weekend thereafter; and
ii.in week 2, from after school on Wednesday until 8.45am on Friday and each alternate week thereafter.
iii.all changeovers shall occur as follows –
1.the father to collect X from school or after school care (at his discretion and cost) and Y from kindergarten or daycare at the commencement of his time and in the event Y is not attending kindergarten or daycare on Wednesdays and Fridays, the mother shall deliver Y to X’s school to facilitate changeover at 5.30pm or at a time agreed by the parties;
2.the father to deliver X to school and Y to kindergarten or daycare at the conclusion of his time and in the event Y is not attending kindergarten or daycare on Mondays and Fridays, the mother shall collect Y at X’s school to facilitate changeover at 8.45am; and
3.on public holidays or non-school days at the R.
d.        commencing 27 January 2021 –
i.in week 1, from after school Friday until 8.45am on Monday, and in the event Monday falls on a public holiday time shall conclude at 5.30pm, and each alternate weekend thereafter; and
ii.in week 2, from after school on Wednesday until 8.45am on Friday and each alternate week thereafter.
iii.all changeovers shall occur as follows –
1.the father to collect the children at the commencement of his time from school or after school care (at his discretion and cost);
2.the father to deliver the children to school at the conclusion of his time; and
3.on Public holidays or non-school days at the R;
School holidays
e.commencing in the term 1 school holidays in 2019, for one half of each of the school term holidays on week about basis at dates and times to be agreed and in default of agreement –
i.in 2019 and each odd year thereafter, for the first half of the term holiday period commencing after school on the last day of school until the middle Saturday at 5.30pm; and
ii.in 2020 and each even year thereafter, for the second half of the term holiday period commencing at 5.30pm on the middle Saturday until 8.45am on the first day of school;
f.commencing during the long summer school holiday period in 2018, on a week about basis at dates and times to be agreed and in default of agreement –
i.in 2018 and each even year thereafter, commencing at 5.30pm on the second Saturday of the long summer holiday period and concluding at 5.30pm Saturday one week later and thereafter alternating in the same weekly pattern thereafter until 8.45am on the first day of school; and
ii.in 2019 and each odd year thereafter, commencing after school on the last day of school and concluding at 5.30pm Saturday one week later and thereafter alternating in the same weekly pattern thereafter until 8.45am on the first day of school;
g.the fortnightly regime provided for in order 4(a) to (d) herein is suspended during the school term and long summer holidays and resumes in the same cycle as if not interrupted by the holidays;
…
Relevantly, amongst other things, the 2018 final consent parenting orders also allocate time between the Mother and the Father for:
(a)Easter and Christmas (including overnight time) for alternating years;[4]
(b)the Children’s birthdays (including, depending on the day and/or year upon which the date falls, overnight time);[5]
(c)the Father’s birthday (including, depending on the day upon which the date falls, overnight time);[6]
(d)Melbourne Cup Day[7];
(e)Father’s Day (including, depending on the day upon which the date falls, overnight time)[8] and
(f)such other times to be agreed between the parties.[9]
[4] Paragraphs 4(h) and (i) of the 2018 final consent parenting orders, again which are extracted in in full in Judge O'Shannessy's reasons at paragraph [16].
[5] Paragraphs 4((j) of the 2018 final consent parenting orders.
[6] Paragraphs 4((k) of the 2018 final consent parenting orders.
[7] Paragraphs 4(l) of the 2018 final consent parenting orders.
[8] Paragraphs 4(m) of the 2018 final consent parenting orders.
[9] Paragraphs 4(n) of the 2018 final consent parenting orders.
On 29 November 2021 the Mother swore an affidavit which she filed in support of the Application (Mother’s 29 November affidavit). By that affidavit, she also averred affidavits sworn by her respectively on 7 September 2021, 24 October 2021[10] and 18 November 2021 and filed in the Current Proceeding: paragraph 1 of the Mother’s 29 November affidavit.
[10] By paragraph 1 of the Mother’s 29 November affidavit, the mother refers to affidavit sworn by her on 8 September 2021 and 25 October 2021. In fact those affidavits were respectively sworn on 7 September 2021 and 24 October 2021 but filed on the dates to which she referred.
On 2 December 2021, the Father filed his:
(a)Response to an Application in a Proceeding, by which sought orders that the Application be dismissed and that the Mother pay the Father’s costs of the Application; and
(b)affidavit in support, affirmed that day, by which he averred the contents of his affidavits affirmed on 30 September 2021, 7 October 2021, 17 November 2021 and 19 November 2021, respectively and filed in the Current Proceeding.
The Application was listed before me on 3 December 2021 on an urgent basis in light of the fact that Judge O’Shannessy’s orders were to take effect on that day. In the event, the parties entered into consent orders to preserve the position until I delivered my decision on the Application.
By the time the Application came before me, the Mother had commenced an appeal of Judge O’Shannessy’s orders by her notice of appeal filed 30 November 2021 (Notice of Appeal). I deal with the Notice of Appeal in some more detail below.
At the return of the Application, Mr Atkinson, of counsel, appeared for the Mother and Mr G Combes, of counsel, appeared for the Father.
From the outset, it is important to note that, prior to the interim hearing which spawned Judge O’Shannessy’s orders, his Honour ordered the preparation of a child impact report. Such a report was prepared and dated 21 November 2021 (Child Impact Report). The Child Impact Report was before his Honour and featured in his reasons.
Overview of procedural background to Judge O’Shannessy’s orders
The first return of the Mother’s application for interim relief came before Judge O’Shannessy on 4 October 2021. Amongst other things, in effect, Judge O’Shannessy ordered that further material be filed in response to the Application, the Mother undertake a hair follicle test, and a child impact report be prepared with interviews to be conducted on 15 and 17 November 2021.
Ultimately, the Mother’s application for interim orders in the Current Proceeding was listed before Judge O’Shannessy for hearing on 22 November 2021. The Child Impact Report was released to the parties on the morning of the interim hearing on 22 November 2021. The matter stood down so that the parties could consider, and make submissions upon it.
At the interim hearing before Judge O’Shannessy, the Father submitted that the Mother’s interim application should be dismissed pursuant to the principles in Rice and Asplund.
Judge O’Shannessy dismissed the Father’s Rice and Asplund application stating that: “I find that there has been, on the papers, and taking the Mother's evidence at its highest, a sufficient change of circumstances that unfortunately justifies further litigation that means I cannot accept the Father’s Rice & Asplund application and dismiss the Mother’s application for final orders at this point”.[11]
[11] Hotchkiss & Marek at [51].
Judge O’Shannessy then considered which interim orders he ought make, stating that he would attempt to apply the principles in Goode & Goode [2006] FLC 93-286, and, in particular, paragraphs 78 and 82 of that decision.[12] At [54] of Judge O’Shannessy’s reasons, his Honour made the following statement in relation to the 13 August 2021 incident at paragraph 54:
At this point, I do not accept the Mother's allegations at their highest as a matter of law. At this point, I am required by law to determine the dispute as to the interim hearing by relying upon uncontested or agreed circumstances or and not necessarily applying the same weight to competing contested allegations. In this circumstance, I place considerable weight upon the child impact report. The child impact report was very concerned as to the disruption of routine between the parents and the children and the potential for the conflict between the parents to impact upon the children.
[emphasis added]
[12] Ibid. at paragraph [53].

By Judge O’Shannessy’s orders, his Honour made some variations to the 2018 final consent parenting orders. However, Mr Atkinson, of counsel who appeared before me for the Mother submitted: “Basically, in terms of the times, there are no modifications.” The variations, then, did not entail the suspension of overnight time.
In effect, Judge O’Shannessy’s orders also directed in very broad terms that, amongst other things:
(a)each of the parties enrol in and then complete (separately) the Tuning into Kids Program and the Parent Orders Program and provide the other, via their lawyers, with a copy of their certificate of completion within seven days of receipt;[13]
(b)the Mother undertake hair follicle testing (pursuant to a regime specified by the orders) and provide a copy of the results to the parties’ lawyers;[14]
(c)each of the parties acquire the OUR FAMILY WIZARD parenting app and utilise it to discuss issues relating to the care, welfare and development of the Children, as required, and that communication must be between the parents and not their partners;[15]
(d)pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (Family Law Act) each of the parties and the Children attend upon a family consultant for the purpose of the preparation of a family report (pursuant to a regime specified by the orders in connection with both the preparation of that report and its contents) with such report to be released by 14 November 2022;[16]
(e)each of the parties take various procedural steps in connection with the final hearing of the current proceeding, which was listed for 17 April 2023 on an estimate of three days.[17]
[13] Judge O’Shannessy’s Orders at [5].
[14] Ibid. at [6] – [10].
[15] Ibid. at [13].
[16] Ibid. at [15].
[17] Ibid. at [22] – [30].
Judge O’Shannessy’s orders left open the question of whether an Independent Children’s Lawyer would be appointed. In particular, paragraph 20 of his orders granted leave “to each of the parties and the Independent Children’s Lawyer (if appointed) to provide a copy of the family report to a convener of any legal dispute resolution conference”.
Paragraph 12 of Judge O’Shannessy’s orders is a “non-denigration restraint”. For reasons which will become apparent, the terms of that order – and in particular sub-paragraph (d) thereof – have some significance for the disposition of the Application. Accordingly, I extract that paragraph in full:
12.Each parent be and is hereby restrained, by himself or herself or their respective servants or agents from the following:
(a)Denigrating, insulting, rebuking, belittling or abusing the other parent to the children or within their presence or hearing;
(b)Discussing these proceedings with the children or in their presence or hearing;
(c)Showing them any document relied upon in these proceedings;
(d)Demeaning the children or either one of them in terms of their respective weight;
(e)Permitting any third party to act in non-compliance with this Order.
Judge O’Shannessy’s consideration of the 13 August 2021 incident
As I observed above, the Mother caused the suspension of time under the 2018 final consent parenting orders and commenced the Current Proceeding after an incident on 13 August 2021.
At [37] and [38] of Judge O’Shannessy’s reasons, his Honour surveys that incident from the respective perspectives of the Mother and the Father. I extract below those paragraphs and the heading which precedes them.
Tailgating Violence or the Great Misunderstanding
37I then need to come to what can be described as the Tailgating Violence or the Great Misunderstanding. The Mother describes at paragraph 13 of her affidavit the tailgating incident of 13 August 2021 and I will recite paragraph 13.
13.At about 5pm on 13 August 2021 I left the house with the children to collect some groceries to make dinner. I was driving in Suburb K and slowed down as there were some children on the side of the road. The next minute I heard a car horn beeping without pause behind me. X was in the back seat and looked around and said "that's Daddy". I kept driving with Mr Marek tailgating me closely, beeping his horn almost constantly. His partner Ms J was also in the vehicle and appeared to be videoing the incident on her phone. Both of them appeared to be smiling and laughing. The children and I were terrified as his driving was intimidating and dangerous. I drove through an amber light and Mr Marek got stuck on the red light. I then called the Suburb L Police Station and told them what was happening and I was told to come straight to the station. X and I were both crying and very shaken and when we arrived as the station, X got out of the car dry-retching. I made a statement to the police who told me that they would consider charges and applying for an IVO on my behalf.
38The Father's account of that event is entirely different, and I will recite his account. That is to the effect that, it having been arranged by a policeman that the changeover place would be changed to the Mother's home and that he had coincidentally come across the Mother as he was driving to her home, that he attempted to have her attention drawn to the fact that he was there so that a changeover could occur.
12.Regarding paragraphs 12, 13 and 18, Ms Hotchkiss refused the proposed make up time and did not revert with a reasonable or timely alternative. She could not possibly have been of the view the children were to be in my care as of Friday morning 13 August, given that I had reminded her the Orders state after school (being 3.30pm) and there was no agreement otherwise. It was my understanding the changeover was to be before 6.30pm. Confusion and stress was reigning by then, and communications were not going directly between us. I deny the mother’s version of events. I tooted the horn in an attempt to get her attention with a view to effecting a changeover without following her to, or having to go to, her home. I was quite distressed by Ms Hotchkiss’s breach of orders that day, and I did not intend for, or expect, the situation to blow up the way it has. I did not expect Ms Hotchkiss to react as she did. She suddenly braked, and then drove fast and erratically. I was concerned about the children’s safety, and slowed down. I was not driving dangerously or “tailgating” or acting threateningly. I believe Ms Hotchkiss overreacted, placing the children at risk. I was later advised by police that the children appeared fine at the station and were both being boisterous in the waiting area. The police gave no indication the children were distressed or that X was ‘dry-retching’. I am quite concerned to imagine the nature of Ms Hotchkiss’s reaction, if that was how X in fact responded at any stage. The Police told me that they would not be supporting an application by Ms Hotchkiss for an intervention order, even though she informed me that they would. I do not believe that Ms Hotchkiss is afraid of me at all. My account of events of 13 August 2021 are not ‘complete rubbish’. An event can be seen differently by different people, particularly if it is not possible for one or the other of them to actually know everything that is going on. There was no laughing or smiling on our part, and my partner Ms J did not video anything. I was in the process of collecting the children, which I understood was to occur by 6.30pm. The children not having their belongings with them is neither here nor there. They never bring any belongings to my home, where they have everything they need, other than school bags when collected from school.
In paragraphs [39], [51] and [52] of his reasons, His Honour went on to observe:
39The difficulty for the Father on the Rice & Asplund application is that the law requires that I take into account the Mother's account of those events. I cannot, on the Rice & Asplund application, at this point weigh up those two events and determine which one occurred or which one is more likely to have occurred. On the Mother's account, that is a serious event to have occurred in the lives of the children.
…
51I take the Mother's evidence at its highest for the purpose of the Rice & Asplund test. I again note the matters that I have referred to in the Mother's affidavit, and in the parts that I have quoted from the child impact report. I find that there has been, on the papers, and taking the Mother's evidence at its highest, a sufficient change of circumstances that unfortunately justifies further litigation that means I cannot accept the Father’s Rice & Asplund application and dismiss the Mother's application for final orders at this point.
52Notwithstanding that, there was substance in the counsel for the Father's submissions that the Court cannot fix the problems that these parents have in their communication and what was the point of having court orders to order otherwise high functioning people to do what they should otherwise do as proper parents and attend courses. Notwithstanding the substance of that, it cannot be said that at the time of the final orders it was contemplated that the state of affairs as described in the Mother's affidavit would continue. Hence, I dismiss the Rice & Asplund application at this point.
APPEAL OF JUDGE O’SHANNESSY ORDERS
The Notice of Appeal contains grounds in the following terms:
1.The learned Judge erred in failing to give adequate weight to the Child Impact report dated 22 November 2021, in formulating orders in the best interests of the children.
2.The learned Judge erred in ordering a resumption of the current orders in circumstances where he made findings as to a substantial change in circumstances.
3.The learned Judge failed to give adequate reasons as to why he did not accept and/or place proper weight on the children's wishes or at all.
4.The learned Judge failed to consider adequately or at all the child X's psychological disposition resulting in the substantial change of circumstances in terms of best interest principles.
I extract below the orders which the Mother seeks by that notice:
1.        That Orders 1 & 2 of the Orders of 25 November 2021 be set aside.
2.        Paragraphs 4-9 inclusive of the Orders made 7 November, 2018 be suspended.
3.The children of the marriage, X born in, 2013 and Y born in, 2015 ("the children") spend time with the Father as follows:
(a)       On each alternate Sunday from 12.00 p.m. until 5.00 p.m;
(b)       On each Wednesday from the conclusion of school until 6.30 p.m.;
(c)       For Christmas 2021, on Christmas Eve from 3.00 p.m. until 7.00 p.m;
(d)       As otherwise agreed in writing.
4.Save for changeovers at school, changeovers occur outside the Village cinemas ticketing box, C Shopping Centre, unless otherwise agreed AND FURTHER, the parents attend such changeovers in the absence of third parties, save in the case of an emergency.
5.That the parties and children attend upon Ms Q or such other psychologist as agreed between the parties for the purposes of reportable family therapy at the joint expense of the parties.
OVERVIEW OF LEGAL PRINCIPLES
The legal principles to be applied when considering whether to exercise the discretion to grant a stay pending the hearing and determination of an appeal are well-settled.
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court (Bryant CJ, Boland and Crisford JJ) at [18] described those principles as follows:
18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 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 Groth & Banks (No. 2) [2017] FamCA 36, Thornton J made the following remarks outlining authority specifically in relation to parenting orders:
16.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 decision in Clemett & Clemett (1981) FLC 91-013 concerned an appeal against the refusal of a trial judge to grant a stay of parenting orders, in broad terms, made in the following circumstances. The child had been in the father’s care and control but orders had been made for the child to be placed in the mother’s custody. The father had sought to stay those orders pending appeal. Speaking on behalf of the Full Court, in an oft-cited passage, Nygh J said at FLC 76-175:
In determining whether a stay should be granted the welfare of the child is the paramount consideration. 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. If 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 will be appropriate to grant a stay of proceedings for at least a short period.
In addition, Mr Atkinson referred me to the judgment of her Honour Judge Carter in Beckford & Beckford (No. 2) [2020] FCCA 2775, which offers a recent statement of the principles in Aldridge & Keaton (Stay Appeal).
As I have observed above, the status quo ante was altered when – post the 13 August 2021 incident – the Mother caused time arrangements pursuant to the 2018 final consent parenting orders to cease. Accordingly, from that time, there has been what on one view of it might be described as a new status quo.
Alternatively, in light of the fact that the period between the August incident and the return of the stay application was short, when considered in the context of the time arrangements which had previously existed pursuant to the 2018 final consent parenting orders, the current arrangements may now fairly be considered a disruption to what properly ought be considered the status quo.
At all events, in light of these matters, an issue which arises in the Application is that if I do not grant the stay – and Judge O’Shannessy’s orders are overturned on appeal in whole or in part – then the Children would temporarily be returned to the former time arrangements, only for those arrangements again to be changed sometime in or after March to May 2022.
I refer to this date because, when the application was returned before me on 3 December 2021 counsel for the Mother led some evidence to the effect that the appeal would be heard in March or April 2022 – if it were to be heard by a single Judge, and likely May 2022 – if it were to be heard by the Full Court. That evidence was in the form of an email from the National Appeals Registry to that effect. Even if the matter were to be heard by single Judge, there is no guarantee that judgment would be delivered immediately. In light of this, I consider that, at all events, it is appropriate for me to work on the basis that the appeal will be heard and determined at some stage between March and May 2022.
In addition to the authorities referred to above, the decision of the full Court in K & B (2006) FLC 93-288 contains a useful discussion of the role of the status quo which existed immediately prior to the making of the orders which are subject to appeal in the consideration of how the discretion should be exercised:[18]
The granting or refusal of a stay involves an exercise of discretion by a trial judge. While such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
[18] K & B (2006) FLC 93-288 at [32].
I well recognise that it is not appropriate for me to pre-empt the outcome of whether the appeal will succeed – that is for others to decide.[19] In Bryant v Commonwealth Bank of Australia,[20] Kirby J made the following observation:
A decision on a stay application should not become an occasion for a detailed analysis of the issues that will arise in the special leave application and, if granted special leave, the appeal. Necessarily, the evaluation of the prospects of success will involve a judicial impression. But it is one that does not pre-determine, one way or the other, the substantive application.
[emphasis added]
[19] Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at p 463.
[20] Ibid.
In Stefanovski v Digital Central Australia (Assets) Pty Ltd [2017] FCA 1121, Derrington J made the following comments at [4(e)]:
Necessarily, the applicant will need to establish that their appeal has some merit to it. They are not obliged to demonstrate that the appeal will be successful, or that success is more probable than not. The degree of confidence which a court needs to have in the appeal’s prospects will most likely vary with all of the circumstances of the case including the potential prejudice which might be suffered by the parties as the result of the granting or refusal of the stay. That said, where an appellant can demonstrate that they have substantial prospects on appeal, that will be a significant factor in favour of granting a stay.
[Emphasis added]

In Sheldon and Weir (Stay Application) [2011] FamCAFC 5 Bryant CJ, Finn and Ainslie-Wallace JJ said at [27]:
… [It] is impossible, at least in most cases, for a Judge in the position of her Honour, or an appellate court in our position, to be able in the context of proceedings relating to a stay of orders pending an appeal against those orders, to determine whether the appeal will ultimately be successful. As we also endeavoured to explain to the father, her Honour certainly did not find that his appeal was unarguable or totally without merit. It was, however, open to her to view his appeal as having "limited opportunity for success" (although she did not actually use those words)…
[emphasis added]
SUBMISSIONS
In their respective submissions to me, each of the parties placed heavy reliance on the Child Impact Report. However, they each submitted that the Child Impact Report supported their respective cases; that is, the parties were disagreed on how a Court should construe the report for the purpose of granting a stay.
In part, such submissions were directed to the merits of the Mother’s appeal. The submissions in that regard concerned whether and to what extent his Honour weighed aspects of the Child Impact Report. In part those submissions were directed to whether the report militated in favour of the exercise of my discretion to grant a stay from the standpoint of the best interests of the Children pending the Mother’s appeal.
Although I have considered all of the submissions made to me, it is sufficient to record those set out below.
In broad terms, counsel for the Mother made the following submissions to the effect that the stay should be granted having regard to the Mother’s prospects of succeeding on appeal and/or the best interests of the Children pending its hearing and determination:
(a)There was an anomaly between Judge O’Shannessy’s rejection of the Father’s Rice and Asplund application and his Honour’s failure to make any changes to the allocation of time between the parents as a result of the Mother’s interim application. The Mother’s counsel put that the anomaly arises as follows. First, his Honour’s rejection of the Father’s Rice and Asplund application presupposes the existence of a change of circumstances between the time at which the 2018 final consent parenting orders were made and the present which is sufficient to justify fresh litigation with respect to the subject matter of those orders. Secondly, despite this his Honour made no changes to the allocation of time under those orders to reflect that change.
(b)Judge O’Shannessy’s reasons did not give any, or adequate, weight to points made in the Child Impact Report regarding the adverse consequences of the conduct of the Father and his partner, Ms J, for the Children – in particular, X. The conduct on which the Mother’s counsel primarily focused his attention in this regard was the 13 August incident and the concerns raised by the Father and his partner, Ms J, with X about her weight.
(c)Judge O’Shannessy’s reasons at [40] extracted what he considered to be the salient paragraphs of the Child Impact Report for the purpose of making his interim orders.
(d)I should have regard to the Child Impact Report including the paragraphs of that report extracted at [40] of Judge O’Shannessy’s reasons.
(e)Paragraphs 9, 11 and 28 of the Child Impact Report,[21] which were extracted by Judge O’Shannessy [40] of his reasons, provide as follows:
[21] I identify these paragraphs as examples of those to which I was referred by the Mother's counsel in submissions.
9.Although speaking of her father largely positively, her narrative suggested that she did not feel close to his partner Ms J. X used the example of Ms J telling her that her school photo was “shocking” and that she would weigh X regularly to see if she was “healthy like Ms J”, often telling her that she was “fat, making her exercise a lot and not letting her eat bread” which made her feel “sad”. X also advised her concern that her father and Ms J would make her cut her hair even though she wanted to keep it long. X held the school photo up to the screen often and was curious as to Court Chid Experts views of how she looked, seemingly pleased when advised the opinion that it was a nice photo. X expressed her view that Ms J was “nasty” to her but “nice” to Y. X appeared to link this to her weight.
…
11.Despite her experience, X advised that she wanted to see her father regularly and proposed each Sunday as a good time but that she did not want to stay there and was cautious about spending time with Ms J. She felt as though time during the week may be stressful as she suggested that it would be best to concentrate on school and sleeping well. X noted that she often worries about the things Ms J says to her at night time and remembering the time in the car where her father followed them, which disturbs her sleep.
28.The children are both at very vulnerable stages in their development, if they continue to be exposed to high conflict parenting dynamic, X and Y are at risk of poorer emotional and developmental outcomes. They require their parents to be able to focus on, and be responsive to, their needs even when they are experiencing high levels of distress or frustrations themselves. X and Y require commitment from their parents to understand the impact of their behaviours, and to ensure that their responses and attitude towards the other are respectful.
(f)Paragraph 22 of the Child Impact Report was not extracted at [40] of Judge O’Shannessy’s reasons which indicates that his Honour did not consider or sufficiently weigh that paragraph from the standpoint of the Child, X’s emotional well-being. The Mother’s counsel submitted that the paragraph contained an observation of significance to the outcome of the Mother’s application for interim orders. I understood the Mother’s counsel to put the submission on the basis that the paragraph was reflective of X’s psychological disposition as a result of her experiences with the Father in addition to the general level of conflict between the parents. That paragraph provides:
22.There are many reasons why a child may resist or refuse spend time with a parent and it is not uncommon for such behaviours to develop around X’s age, especially in light of her intelligence and awareness of her environment. X has likely taken on board a great deal of responsibility to make her parents happy and this emotional burden in amidst years of navigating a high conflict parenting dynamic, has become overwhelming for her. Therefore it would be reasonable for her to seek to avoid situations that make her feel uncomfortable. It is plausible that X has been somewhat influenced by the mothers’ views, however based on X’s narrative she has also had her own experiences that have reduced her tolerance to spending time with her father.
(g)The Father should complete the Tuning into Kids Program and the Parent Orders Program ordered by his Honour as well as a Men’s Behavioural Change Program – which he agreed to undertake at the return of an intervention order application brought by the Mother – before his time is increased.
(h)To do otherwise would be “to put the cart before the horse” in that his Honour ordered the parties to undertake two of these courses and the Father agreed to undertake one in another proceeding. Accordingly, so argued the Mother’s counsel, his Honour should have ordered the completion of these courses as a prerequisite to the increase of the Father’s time, particularly in light of the fact that his Honour was prepared to find a change of circumstance that was sufficient to defeat the father’s Rice and Asplund application. I understood the Mother’s counsel to put this on the basis that the fact that his Honour did not make orders accordingly was indicative of his failure to consider X’s psychological disposition, or emotional well-being, adequately or at all when refusing the Mother’s interim application.
(i)The tailgating incident had caused the Children trauma. This had consequences for X’s wishes with respect to the allocation of time with her Father. In this regard, the Mother had deposed that X, in particular, “never wanted to see her Daddy again”.[22] The Mother’s counsel submitted that these wishes ought to have been, and be, given weight in the context of the Child Impact Report writer’s view that X had verbal maturity beyond her eight years. However, the Mother’s counsel acknowledged, in broad terms, that the report writer was alert to the fact that although X’s narrative reflected concerns about some interactions with her Father, it was plausible that, in effect, the Mother had put ideas in her head.
(j)The Mother further deposed that there were long term concerns about the Father’s ‘fixation’ on X’s weight causing psychological harm.[23]
(k)His Honour’s failure to make any variation to the time allocated pursuant to the 2018 final consent parenting orders are indicative of his failure adequately to weigh the matters referred to in the preceding two sub-paragraphs together with the other matters which were the subject of the Mother’s submissions.
(l)The appeal could be heard and determined relatively quickly. In this regard, as I have indicated earlier, counsel for the Mother tendered an email, which is dated 3 December 2021, from the National Appeals Registry concerning the likely timing of the Appeal. That email states:
… Please be advised that it is more likely that the matter would be listed in March or April 2022 if it is to be heard by a single judge. If it is to be heard in the Full Court, the likely time frame would be May 2022.
(m)Even though the conflict between the parents, the 13 August incident and the comments made to X about her weight have all affected X more than Y, her sister, the Children should be treated as one and not be treated in a different way.
[22] Affidavit of Ms Hotchkiss sworn 7 September 2021 at paragraphs 13 and 14.
[23] Ibid at paragraph 16.
Additionally, the Mother’s counsel made the following submission which was impregnated with what was, in my view, a responsible concession:
… in my client’s case, it’s not a case where she’s trying to be the colloquial no-contact mum. And it is a case where she acknowledges the father has had a significant role. There has been these orders made in November. And I don’t doubt for a moment that she would be given advice, and I’m sure she would accept advice that it’s got to build back up to overnight times.
[emphasis added]
In response to the Mother’s submissions, in broad terms, the Father’s counsel, made submissions to the following effect with respect to the Mother’s prospects of succeeding in appeal and/or the best interests of the Children pending its hearing and determination:
(a)There is no arguable error in Judge O’Shannessy’s reasons because his Honour gave appropriate weight to the Child Impact Report.
(b)Paragraphs of the reasons which demonstrate that this is so include, amongst other things, [40] (from which I extract above) and [54] (which I reproduce above in full). (It will be remembered that, amongst other things, by [54] his Honour observed: “[i]n this circumstance, I place considerable weight upon the Child Impact Report. The Child Impact Report was very concerned as to the disruption of routine between the parents and the children and the potential for the conflict between the parents to impact upon the children.” The disruption to which his Honour was there referring was the disruption to the time arrangements under the 2018 final consent parenting orders.)
(c)The Children have been in the Father’s care for substantial and significant time from November 2018 until the incident in August 2021. Paragraph 4 of the Child Impact Report highlights the likely negative impact caused to the Children by the disruption to the time arrangements under the 2018 final consent parenting orders. Paragraph 4 says:
4.Although the parent’s communication remained strained post separation, the children reportedly tolerated transitions between the homes and they maintained positive relationships with both parents. Prior to the spend time changes in August 2021, the children spent around 9 nights per fortnight with the mother and 5 nights per fortnight with the father, and alternating weeks in school holidays. The significant change in circumstances in the previous months has likely caused them confusion and reduced sense of stability, particularly Y given her young age and inability to understand her situation and of the adult disputes.
(d)X is eight and Y is six. Given their age, although their wishes should be given some weight, those wishes ought not be a determinative consideration.
(e)The Child Impact Report did not make a direct recommendation that the Father’s time with the Children be limited, which is the normal course where the author considers such a course desirable. Accordingly, it can be inferred that no such recommendation can be read into the Report.
(f)As to the two supervised visits, the Supervisor’s Report made the following observations in relation to the Children’s relationship with their Father:
•X and Y have separated from their mother with ease and have not displayed any signs of anxiety, always looking forward to seeing Mr Marek and expressing their desire to stay longer and go to his home.
•X and Y appear to share an established and loving connection with their father.
•Mr Marek has attended visits punctually, well organised and has offered the children good quality time.
•Mr Marek has been observed to be nurturing, loving and attentive towards the children and there have not been any concerns noted regarding Mr Marek‟s interaction with X and Y.
•Mr Marek has demonstrated positive parenting skills including attending to the children’s emotional and physical needs during the allocated time, engaging in age appropriate activities and has been able to ensure their safety at all times.
…
•Initially Ms Hotchkiss refused to agree to a 4 hour visit reporting that the children didn’t want to spend such a long period of time with their father however since the initial visit Ms Hotchkiss has agreed to extra time.
(g)The supervisor’s report contradicts the some of the Mother’s depositions this might cast “suspicion that Ms Hotchkiss has her own narrative in relation to these proceedings …”.
In response to submissions made by counsel for the Father, amongst other things, Mr Atkinson submitted, in effect, that although there was no recommendation in the Child Impact Report that there should be a cutting back of the overnight time, there was no express statement that it should recommence. On that basis, and having regard to the fact that the report was prepared in the context of what had been a period of supervised time, I should not infer that the writer was content for overnight time to recommence. Mr Atkinson then said that “I don’t put it any higher than that”.
CONSIDERATION
The Mother bears the onus of establishing that there is a proper basis for the stay of Judge O’Shannessy’s orders which she seeks.
Bona fide appeal
Despite Mr Combes’ submission, which was in effect to the contrary, I accept that the Mother’s appeal is bona fide. The following matters suffice for me to reach that conclusion. First, the Child Impact Report expresses the view that the 13 August incident has had some adverse impact at least on X. Secondly, that report contains observations to the effect that at least X is showing some resistance to staying with her Father and his new partner, Ms J. Thirdly, that report identifies that the focus by the Father and his partner, Ms J, on X’s weight has had an adverse effect on her. Fourthly, despite these matters, his Honour did not vary the time arrangements under the 2018 final consent parenting orders.
Merits
My preliminary assessment is that the appeal is arguable. The following matters suffice for me to reach that conclusion. First, his Honour rejected the Father’s Rice and Asplund application. This presupposes the existence of a change of circumstances between the time at which the 2018 final consent parenting orders were made and the present which is sufficient to justify fresh litigation with respect to the subject matter of those orders. Despite this, his Honour did not vary those orders. Secondly, although his Honour considered the Child Impact Report, and expressly reproduced the bulk of the paragraphs in that report upon which the Mother relied concerning X’s well-being and wishes, there remains an issue as to the extent to which he weighed some the matters raised therein in deciding not to vary the time arrangements under the 2018 final consent parenting orders.
However, to be clear, at this stage I conclude only that these matters leave the door ajar to an argument that when exercising his discretion, his Honour fell into error.
In accordance with the authority to which I have referred above, I have formed a general impression, or preliminary assessment, of the strengths of the appeal to the effect that, although arguable, the appeal does not have a strong prospect of succeeding.
However, I would have refused the stay irrespective of this impression for reasons which I set out later in this judgment. That is, those other matters were sufficient for me to reach my decision to refuse the stay.
I set out below the basis upon which my general impression or preliminary assessment of the strength of the appeal is to the effect that it does not have a strong prospect of succeeding.
For reasons which will become apparent later, the bulk of the matters to which I refer are also relevant to the question of the best interests of the Children in the period between the stay application and the hearing. Accordingly, it is convenient to set them out here in more detail than I would otherwise when providing a precis exposing my reasons for having formed that impression.
First, his Honour made very clear that, when rejecting the Father’s Rice and Asplund application, he was obliged to take the Mother’s case at its highest: [39], [51] and [52] of Judge O’Shannessy’s reasons, which are extracted above. However, when adjudicating the Mother’s application for interim orders, plainly this was not the test which he should have applied – nor did he.
Rather, at [54], which I again reproduce for ease of reference, his Honour held: “At this point, I do not accept the Mother's allegations at their highest as a matter of law. At this point, I am required by law to determine the dispute as to the interim hearing by relying upon uncontested or agreed circumstances or and not necessarily applying the same weight to competing contested allegations.”
Hence there is no necessary incongruity or anomaly between his Honour’s rejection of the Father’s Rice and Asplund application and the fact that he did not vary time under the 2018 final consent parenting orders. Indeed, his Honour expressly exposed his reasoning as to the legal principles which lead him to refuse the Rice and Asplund application and yet not vary the original consent orders. Without pre-empting the outcome of the appeal, my impression is that his application of such principles was open and orthodox.
Additionally, again, at [54], his Honour found that: “…I place considerable weight upon the Child Impact Report. The Child Impact Report was very concerned as to the disruption of routine between the parents and the children and the potential for the conflict between the parents to impact upon the children.” [emphasis added]
Again, the disruption to which his Honour there referred as having an adverse impact upon the Children was disruption to time arrangements under the 2018 final consent parenting orders.

This is consistent with the view expressed in [4] of the Child Impact Report. Again, in part that paragraph records: “The significant change in circumstances in the previous months has likely caused them confusion and reduced sense of stability, particularly Y given her young age and inability to understand her situation and of the adult disputes.”
My general impression, then, is that his Honour placed significant weight on the Child Impact Report – indeed, on the face of it, this was the most significant driver of his interim decision not to vary time under the 2018 final consent parenting orders. Moreover, my preliminary assessment is that his Honour gave more weight to the report writer’s concern about the adverse consequences to the Children of disruption to the allocation of time under those orders than the writer’s other concerns, in the circumstances set out below.
Significantly, given that a pivotal ground of appeal was that his Honour’s failed properly to weigh the Child Impact Report, that report made no recommendation whatsoever that time under the 2018 final consent parenting orders be varied. In particular, that report made no recommendation that overnight time be suspended.
In order to determine the best interests of the Children pending the appeal, I must consider the Mother’s faintly pressed submission that no inference could be drawn from this on the basis that there was no recommendation that time under those orders, or overnight time, continue. I reject that submission. By [4] of the report, which I have extracted above, it is clear that its author was fully seized of the fact that, during term, the Children spent nine nights per fortnight with the Mother and five with the Father and alternating weeks in school holidays.
In these circumstances, I infer from the absence of a recommendation to the effect that those arrangements change that the author of the report did not consider that they should. Such inference is buttressed by the fact that, earlier in that same paragraph, the report writer expressed concern about the adverse consequences to the Children of the disruption caused by the change to those arrangements. It follows that I infer that the report writer was not concerned about a resumption to overnight time.
His Honour also found support for his decision not to vary time under the 2018 final consent parenting orders in the observations of the supervisor who supervised the Father’s time with the children. On the face of his reasons, his Honour placed significant weight on these observations.
I extract his Honour’s observations in that regard below in full as they are relevant to the best interests of the Children in the period between the stay application and the appeal.
The Supervision Observations
56In addition to that information I have the information from the supervised time. I should again make it clear that for the purpose of the decision that I am now making, that is, the dispute as to the interim orders I cannot determine the factual disputes between the parents.
57I note that the Mother has tested positive for cocaine and it is intended by both parties that she will undertake a further cocaine test.
58The parties had agreed that there should be supervised time undertaken. From the Father's perspective, that was the only time he was able to achieve with his children. From the Mother's perspective, that time and supervision was necessary for the benefit of the children.
The first supervised visit
59       The supervisors (sic) observations include:
The worker initially contacted Ms Hotchkiss on the 04.11.2021 with a time (10am – 2pm). The worker organized a visit for a 4 hour period however the mother pushed back on the amount of time and stated that 2-3 hours was going to be the maximum amount of time that she was going to allow. The worker then contacted the mother with a new set time (9:30am -12:30pm) and a location – Suburb N Park. The mother said that she wasn’t allowing anything in Suburb N and would only allow O Reserve in Suburb P.
60What the Mother said to the children on the first occasion, at the start of that supervised time, can either be seen as supportive of the children's relationship with the Father or either unknowingly or intentionally undermining it. The Mother commented to the children and I will quote that:
Y mentioned that she didn't want to go to her father's house. The worker reassured Y it was only going to be at the park to play. They separated without hesitation from Ms Hotchkiss and mother’s partner ‘Mr H’.
Ms Hotchkiss commented to the children, “I understand you aren’t wanting to be here, but why don’t you give it a try, and see how you go?”
The children were on the swings at the park when father arrived. X and Y instantly jumped off and ran towards their father, wrapped their arms around his waist and gave him a big hug. The father returned the affection and also gave them a kiss.
61I take into account all of the observations, not only the ones that I am quoting. I do take into account that the Father had bought, in my view sensibly, presents and things to entertain the children. The Mother subsequent to this report swore an affidavit regarding the Father's presentation of presents as manipulative. On this interim hearing I cannot accept that or make that finding. The Father did tell the children initially that the presents were to be gifts for “Daddy's” house. That is, not in the Mother’s house. Y managed to negotiate with the Father that she could take the present home and bring it back. However, it is significant that the children themselves suggested during this supervised visit that they go to “Daddy's” house. At the end of the visit both children became emotional and expressed that they were not ready to leave, and I will quote from the report:
Y mentioned that she wanted to go back to her father’s house because she wanted to open up more presents and have a birthday party there… X expressed that she wanted the next visit to be all day, not just 3 hours.
62And I will quote the discussion with the Mother's partner, Mr H, who raised the difficulty about the further visit because it might conflict with a camping trip.
The worker followed up with whether the children were available to have a visit the following week to which the mother mentioned she’d have to check her own schedule. While the mother’s partner Mr H was in the car, he stuck his head out and mentioned that they were going camping the following weekend and it wasn’t going to be possible. It seemed apparent to the worker that mother was unaware of upcoming camping trip her partner had mentioned.
The second supervised visit
63       The second visit was on 14 November 2021, and I quote the observations:
The children ran towards Mr Marek as soon as they saw him, exchanging hugs and kisses on arrival. Mr Marek mentioned how much he had missed them and handed them a bottle of water each, in preparation for the movie.
…
X and Y asked their father when they were allowed to go back to his house. Mr Marek mentioned that he missed them a lot and was currently working on having them over again, but hopefully soon. During this time, X, Y and Mr Marek conversed and bonded well, laughing at past memories the father was sharing with X and Y.
64       And I will quote the ending time:
… The father accompanied the children and worker towards the meeting point. Mr Marek said goodbye to the children. The children gave their father a kiss and a big hug, saying “I love you” to each other. Mr Marek departed shortly after.
65The report includes a summary which is an opinion of the observations. I place only a little weight on the opinion of the report writer as to those observations. But I place considerable weight on the actual observations of what occurred and I draw my own opinion about the consequences of those observations. It is clear that the children were excited to share their experience and the toys that they had purchased. The children were excited in sharing their evening with their Father. No risk issues were identified. There were two successful visits and the Father did demonstrate positive parenting skills. The children did demonstrate an established and loving connection with their Father. I do note the child impact report reports X as observing that she would be comfortable seeing her Father during the day only.
[emphasis added]
…
In deciding not to vary time under the 2018 final consent parenting orders his Honour considered, and extracted in full, 65DAA of the Family Law Act: see for example [71] – [74] of Judge O’Shannessy’s reasons.
I extract below [72] and [74] again, on the basis that they are relevant to the question of the best interests of the Children pro tem.
72Neither parent seeks equal time and it can only be applied if it is reasonably practical and if it is in the children's best interests. However, I must consider and consider positively (and I refer to the decision of Dundas & Blake (2013) FLC ¶93-552), the children spending substantial and significant time, if it is reasonably practicable. The existing orders provide for substantial and significant time. The parties have demonstrated that absent the appalling parental relationship between them, the nuts and bolts of the children's time is reasonably practicable, and I must consider that.
74In this case, the evidence demonstrates that it is in the children's interests to maintain a meaningful relationship with their Father and, indeed, that is now common ground given the Mother's position contained in M1, (the minute of the orders that she seeks), which is that there be unsupervised daytime only time. I also need to consider all of the additional considerations. The evidence demonstrates a risk to the children's emotional welfare when the parents are in the same vicinity. I cannot make findings about the events when the parents are together in the same vicinity, but there is contested evidence of the children being exposed to family violence when the parents are in the same vicinity.
The appeal would not be rendered nugatory by reason of the refusal of the stay
Although not determinative, the question whether the absence of a stay would render the appeal nugatory is a significant factor in my consideration of whether to grant it.
I asked counsel for the Mother whether and, if so, how he wished to put any submission to the effect that my refusal of the stay would render the appeal nugatory. Mr Atkinson made no direct submission to me in this regard. Given the significance of this factor in the determination of whether to exercise a discretion to grant a stay, I consider that this is because he was unable properly to do so.
In any event, I do not consider that my refusal of the stay would render the appeal nugatory which is plainly a significant factor militating against granting a stay in this case.
As part of my consideration of whether my refusal of a stay would render the appeal nugatory, I have considered whether, on the basis of the matters argued before me, such refusal would expose the Children to material risk in the period between the disposition of the stay application and the determination of the appeal, or undue disruption if the appeal were to succeed. I have concluded that it would not.
First, significantly, again there is no suggestion whatsoever in the Child Impact Report that time arrangements under the 2018 final consent parenting orders ought be varied. For reasons which I have identified above, I infer from this that the author of that report was not of the view that this should occur.
The author of the report recognised that the Children are at a vulnerable stage of their development. It may be that some of the concerns raised in the report are amplified by the restoration of the previous time arrangements. However, it would readily be expected that had the author of that report been concerned that the perpetuation of time under those orders exposed the Children, or either of them, to undue risk, she would have said so.
Moreover, a primary concern of the report writer was the adverse consequences to the Children of the disruption to the previous time arrangements. This supports the conclusion that the author of the report was not opposed to their resumption.
Further, and significantly, paragraph 12(d) of Judge O’Shannessy’s orders (which I have extracted above) addresses one of the two primary focuses of the submissions by the Mother’s counsel as to why the Father’s time should not, in effect, fully be reinstated at this stage. That is, that paragraph addresses the concerns raised by the Mother about the adverse reaction which X was having to the issues raised with her by the Father and his partner about her weight.
By that paragraph, his Honour restrained the parties and their servants or agents from demeaning the children or either one of them in terms of their respective weight. The parties are represented by experienced practitioners and it is therefore reasonable for me to assume that they will be advised of the consequences of breaching this restraint.
Secondly, although this was not a matter submitted by counsel for the Mother, I recognise that if the appeal were to succeed, there would be some disruption to the Children’s routine. This is so because time under the 2018 final consent parenting orders would have been reinstated only to be wholly or partly reversed.
However, in the particular circumstances of this case, I do not consider that the possibility of such disruption is a significant factor militating in favour of the grant of the stay.
This is so for the following reasons:
(a)First, this is not a case where the orders sought to be stayed entail a change either to a long-standing status quo or the children’s essential living arrangements.
(b)Indeed, for reasons which I have identified above, on one analysis an unusual feature of this case is that it is the grant of the stay which would disrupt what might properly be regarded as the status quo. This is because time arrangements under the 2018 final consent parenting orders have, as acknowledged by the Mother’s counsel, functioned since they were made; that is, for an extensive period. As against this, the arrangements immediately prior to the application for the stay constituted a relatively short term change to those arrangements.
(c)On this analysis, the stay in fact promotes rather than arrests a disruption to the status quo. (As I observed above,[24] K & B (2006) FLC 93-288 is authority for the proposition that I am not required to take an inflexible approach to the role of the status quo in the exercise of my discretion.)[25]
[24] For example, at [32].
[25] For example, at [32].
(d)Moreover, the author of the Child Impact Report expressed concern that this very disruption was having immediate adverse consequences for the Children.
(e)Secondly, in any event, even if the appeal were to be wholly or partly successful, the disruption to the children’s routine would not be significant to the Children’s essential living arrangements. For example, this is not a case which entails:
i.a change of circumstances so disruptive to the Children that it would require them to relocate to a different town or change schools;[26] or
ii.the Children changing their primary residence, only to revert to their previous residence a second time should the underlying appeal be successful.[27]
(f)Thirdly, although I consider that the first and second reasons which I have identified in this paragraph are sufficient to dispose of any contention that the stay should be granted to avoid any disruption that might occur if the appeal were to succeed, the fact that my impression, or preliminary assessment, is that the appeal does not have a strong prospect of success supports this conclusion.
[26] Groth & Banks (No. 2) [2017] FamCA 36 at [45].
[27] CSN & JBN(Full Court) (1998) 24 Fam LR 174 at [12].
In light of the analysis above, it will be apparent that I consider that even if the appeal were to succeed in whole or in part, the orders which the Mother seeks to stay could be materially unwound.
The best interests of the children during the time between the stay application and the determination of the appeal
The best interests of the Children during the time between the stay application and the hearing and determination of the appeal is the paramount factor in my consideration of whether I exercise my discretion to grant the stay.[28]
[28] See, for example, Clemett & Clemett (1981) FLC 91-013 per Nygh J, speaking on behalf of the Full Court at FLC 76-175
In this case, it will have become apparent that this question is intertwined with the various matters which I have considered to date. Essentially, for reasons which I have already given, I consider that those interests are best served by refusing the stay.
Amongst other things:
(a)A primary concern expressed in the Child Impact Report was the adverse consequences for the Children caused by the disruption to the time arrangements under the 2018 final consent parenting orders.
(b)The report writer gave no indication whatsoever that she thought that time arrangements pursuant to those orders ought be altered. For reasons given above, in all of the circumstances, I infer that she did not consider that those arrangements should cease, and, in particular, that there be no resumption of overnight time.
(c)Likewise, the report writer did not state that she considered that the completion of parenting courses should be a prerequisite to the reinstatement of the previous orders or overnight time. Again, in all the circumstances, I infer that the report writer was not of the view that such courses be completed as a prerequisite to the resumption of such time.
(d)Moreover, in this regard, Judge O’Shannessy’s orders required both parents, not just the Father, to undertake the Tuning into Kids Program and the Parent Orders Program and provide the other, via their lawyers, with a copy of their certificate of completion within seven days of receipt. Further, by paragraph 7 of his affidavit of 2 December 2021, the Father deposes to having enrolled and commenced various courses to manage his conflict with the Mother.
(e)The time arrangements under the 2018 final consent parenting orders were long-standing and the Mother’s counsel acknowledged that they had functioned since the orders giving effect of them were made.
(f)Observations in the report, and in particular [4] which I have extracted above, support the conclusion that the perpetuation of those arrangements will, in fact, enhance the Children’s sense of stability.
(g)The observations of the supervisor of the supervised time (albeit that they were not in the context of overnight time or time with the Father’s partner) buttress the conclusion that it is in the interests of the Children to spend substantial and meaningful time with the Father. This is better achieved by the perpetuation of the time arrangements under the 2018 orders than the alternative orders proposed by the Mother which exclude overnight time.
(h)The time arrangements under the 2018 orders give effect to the intention of s 65DAA of the Family Law Act in that they provide for substantial and meaningful time with the Father.
(i)The restraint proposed in paragraph 12(d) of Judge O’Shannessy’s orders, if complied with, should obviate one of the primary concerns raised by counsel for the Mother, namely the adverse effect on X caused by the Father and his partner taking issue with her about her weight.
(j)Again, given the experience of the practitioners representing the Father, it is reasonable for me to infer that the Father, and through him his partner, will be advised of the nature and effect of that order and the consequences of its breach.
(k)In all the circumstances, should the appeal be wholly or partly successful, Judge O’Shannessy’s orders can be materially unwound. Although this would entail some disruption, such disruption would not be significant. This is so, amongst the other matters which I considered above, having regard to the fact that his Honour’s orders have the effect of returning the time arrangements to a long-standing status quo ante, which prevailed until the recent past. Moreover, such disruption must be weighed against the short term advantage to the children of a return to that status quo.
(l)Viewed another way, in the opinion of the author of the Child Impact Report, the arrangements which endured immediately prior to the stay were in and of themselves a disruption. Accordingly, that form of disruption is a certainty. As against this, the prospect of the appeal succeeding is not. Indeed, it will be recalled that my impression or preliminary assessment is that the appeal does not have a strong prospect of succeeding. However, I reiterate that I would have reached the same conclusion irrespective of this impression or preliminary assessment.
(m)If the appeal is successful in whole or in part, having regard to the evidence that the appeal will likely be heard between March and May next year, Judge O’Shannessy’s orders will be commensurately unwound without what I consider to be undue delay in the circumstances of this case.
(n)I understand that this might be said to cut both ways; that is the availability of a relatively expeditious hearing of the appeal might well be said to militate in favour of the grant of a stay.
(o)However, again, in this case it may fairly be said that, if granted, the stay would perpetuate a disruption to the status quo rather than preserve it. When viewed this way, if I were to stay his Honour’s orders, the passage of time between when the Mother ceased providing the Children to the Father post the 13 August incident and the time at which the appeal is in fact determined, runs the risk of effectively creating a new status quo. If the appeal were then to fail, this would run the risk of exacerbating the disruption to the Children.

For these reasons, I have dismissed paragraphs 1 to 5 of the Application.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis.
Associate:
Dated: 16 December 2021

File number(s):	MLC 8449 of 2017
Judgment of:	JUDGE DAVIS
Date of order:	10 December 2021
Date of reasons	16 December 2021
Catchwords:	FAMILY LAW – STAY – REFUSAL TO GRANT STAY PENDING APPEAL OF INTERIM PARENTING ORDERS – Mother’s application for a stay of interim parenting orders pending the determination of her appeal of those orders – where the refusal of the stay had the effect of restoring long-standing time arrangements made pursuant to final consent parenting orders in a previous proceeding – the significance of the best interests of the children pending the determination of the appeal and factors relevant to the ascertainment of those interests – the identification and role of the status quo – judicial impression, or preliminary assessment, of the prospect of the substantive appeal succeeding – stay refused.
Legislation:	Family Law Act 1975 (Cth), ss.62G, 65DAA
Cases cited:	Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Beckford & Beckford (No. 2) [2020] FCCA 2775 Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 CSN & JBN(Full Court) (1998) 24 Fam LR 174 Clemett & Clemett (1981) FLC 91-013 Groth & Banks (No. 2) [2017] FamCA 36 K & B (2006) FLC 93-288 Hotchiss & Marek [2021] FedCFamC2F 456 Sheldon and Weir (Stay Application) [2011] FamCAFC 5 Stefanovski v Digital Central Australia (Assets) Pty Ltd [2017] FCA 1121 Rice and Asplund (1979) FLC 90-725
Division:	Division 2 Family Law
Number of paragraphs:	97
Date of last submission/s:	3 December 2021
Date of hearing:	3 December 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Atkinson
Counsel for the Respondent:	Mr Combes

MLC 8449 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HOTCHKISS Applicant
AND:	MR MAREK Respondent

ORDER MADE BY:	JUDGE DAVIS
DATE OF ORDER:	10 DECEMBER 2021
DATE OF REASONS	16 DECEMBER 2021