Inwood & Barnett

[2008] FMCAfam 1446

FEDERAL MAGISTRATES COURT OF AUSTRALIA

INWOOD & BARNETT [2008] FMCAfam 1446

FAMILY LAW – Interim parenting order – stay application pending appeal – principles applicable to stay – stay granted.

Family Law Act 1975, s.68L (2)

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Clemmett v Clemmett (1981) FLC 93-103
Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220
EJK v TLS (No 2) (2006) 35 FLR 590
Elspeth v Peter [2007] FamCA 254
Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCA Trans 5 (24^th January 2008)
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
K & B (2006) FLC 93-288
M v DB [2007] 36 FLR 501
Nauru Phosphate Royalties Trust v Harris [2007] HCA Trans 329 (27^th June 2007)
O v L (2005) 196 FLR 224
U v U (2002) 211 CLR 238

Applicant: MS INWOOD

Respondent: MR BARNETT

File Number: CAC 1019 of 2008

Judgment of: Neville FM

Hearing date: 1 December 2008

Date of Last Submission: 1 December 2008

Delivered at: Canberra

Delivered on: 2 December 2008

REPRESENTATION

Counsel for the Applicant: Mr Brzostowski SC

Solicitors for the Applicant: Dobinson Davey Clifford Simpson Family Lawyers

Counsel for the Respondent: Mr Crispin

Solicitors for the Respondent: S & T Lawyers

ORDERS

1. As from the beginning of the 2008/2009 New South Wales Christmas School holidays, the child [X] born in 2000 is to spend half of those holidays with her mother and half with her father. The mother is to have the first half of the school holidays and the father the second half.  The place and time of changeover is to be agreed between the parties. 

2. The parents shall continue to have equal shared parental responsibility for the child.

3. The stay application in relation to Orders 1 and 2 dated 20 August 2008 is granted. The stay will become operational upon the commencement of the 2008/2009 New South Wales Christmas School holidays. Upon the conclusion of those school holidays the following orders will apply.

4. As from the commencement of the ACT School year in 2009, [X] is to attend the school in Canberra that she last attended prior to her removal to the South Coast of New South Wales. Upon her recommencement at that school, until further order or as otherwise agreed between the parties, she is to live with each parent on a week about basis. The place and time of changeover is to be agreed between the parties.  In the absence of agreement, changeover is to take place immediately after school each Friday afternoon.

5. [X] is to have regular telephone contact with the non-resident parent.  These telephone calls are not to be monitored by either of the parents.

6. Both parents are restrained from discussing these Court proceedings with the child, or doing so in her presence and they must use their best endeavours to ensure that no other person does so either.

7. Both parents are restrained from denigrating or otherwise speaking ill of the other parent to the child, or doing so in her presence and they must use their best endeavours to ensure that no one else does so either.

8. Pursuant to section 11F of the Family Law Act 1975 the parties are to arrange for a Family Consultant who is able to attend each of their respective residences, and preferably on more than one occasion, to prepare a report that will be used at the final hearing in these proceedings.  Any costs associated with this consultant are to be shared equally between the parties.

9. Pursuant to section 68L (2) of the Family Law Act1975, the child [X], born in 2000, be separately represented and it is requested that the ACT Legal Aid Office arrange such representation.

10. Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.

11. Within 48 hours of notification of such appointment the solicitors for the respective parties are to provide to the Independent Child’s Lawyer copies of all relevant documents relied upon.

12. The mention of this matter on 10 December 2008 be vacated.

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

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA

CAC 1019 of 2008

MS INWOOD

Applicant

And

MR BARNETT

Respondent

REASONS FOR JUDGMENT

1. An application for a stay in relation to certain orders made by me on 20 August 2008 was filed on 13 November 2008.  An appeal to the Full Court of the Family Court in relation to those orders was filed on 17 September 2008.  Between the filing of the appeal and the filing of the stay applications, the applicant Mother, Ms Inwood, changed solicitors. Doubtless this accounts for any possible delay in bringing the current application. 

2. In U v U (2002) 211 CLR 238 at page 283 [164] Kirby J stressed the importance of the Court paying particular attention to the "paramount consideration of the best interests of the child, viewed in the long term and not just the short term." This fundamental principle is a significant consideration in my reasoning for the orders to be made in this current application for a stay.

3. By way of general comment I have had regard to the following cases from which I have drawn some general principles regarding stay applications.  The cases might be distinguished, however, between stay applications in commercial litigation as opposed to stay applications in family law proceedings.  That distinction was recognised specifically by Kirby J, sitting alone in the High Court in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329. At p.1332 [16] his Honour said:

   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.

4. This distinction was recognised and accepted by the Full Court of the Family Court of Australia in EJK v TLS (No 2) (2006) 35 FLR 590 at 594 [17], where their Honours cited the observations of Kirby J in JRN & KEN to which I have just referred. 

5. In family law stay applications, the invariable original touchstone is the judgment of Nygh J in Clemmett v Clemmett (1981) FLC 93-103. More important recent important cases from the family law jurisdiction are O v L (2005) 196 FLR 224 (Boland J); Elspeth v Peter [2007] FamCA 254 (Benjamin J); and a decision of his Honour Altobelli FM in M v DB [2007] 36 FLR 501.

6. From the non-family law jurisdiction, but which cases are not infrequently referred to in family law proceedings, are the New South Wales Court of Appeal judgment in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 (Kirby P, Hope and McHugh JJ), Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220 (Dawson J), and Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681 (Brennan J). More recent High Court discussion of the principles applicable in stay applications, almost invariably citing one or more of the cases to which I have just referred (especially Myer Emporium and Jennings Construction), can be found in Hayne J’s recent ex tempore judgments in Nauru Phosphate Royalties Trust v Harris [2007] HCA Trans 329 (27^th June 2007) and Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCA Trans 5 (24^th January 2008).

7. In the light of the jurisprudence articulated over many years the following may be taken as a summary of the principles to be applied in relation to a stay in the family law jurisdiction:

   i)An appeal does not, of itself, confer or require the granting of a stay as of right.

   ii)A stay does not constitute a “parenting order” per se and thereby immediately or directly invoke the operation of s.60CA regarding the best interests of the child being paramount.

   iii)The interests of the child are, nonetheless, a critical consideration.

   iv)The application must not be a mere delaying tactic.

   v)The grounds of appeal must be substantial.

   vi)The Court must consider whether the refusal to grant a stay would render the appeal nugatory in any respect.

   vii)Having regard to the child’s best interests, changes to custodial arrangements in relation to the child must, as far as possible, be kept to a minimum.

   viii)A Court is required to assess the issue of “hardship” on each of the parties should the stay be granted or in the event the stay is refused. (See here the discussion of Boland J in O v L at pp.230-231).

8. In addition to the above, for my part the most immediately relevant case that guides the determination of the current application, and not previously mentioned, is the judgment of the Full Court in K & B (2006) FLC 93-288 (Warnick, May and Boland JJ):

   The granting or refusal of a stay involves an exercise of discretion by a trial Judge.  Whilst 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.

9. In the light of (a) the principles set out above, (b) Kirby J’s emphasis on the long term best interests of the child, and (c) the Full Court’s comments in K & B, there are four significant matters that warrant, in my view, the making of the orders in the current proceedings. 

10. First, in Ms Inwood's most recent affidavit filed in these proceedings, sworn on 11 November 2008, she complains about what she says was a significant limited time that she had with the family consultant,

    
    

    Ms Dawson, prior to the preparation of the most recent family report.  She also complains that much of her time with Ms Dawson was taken up with addressing issues that have been raised by Mr Barnett in his extended session (according to Ms Inwood) with the family consultant.  I hasten immediately to state that nothing of what I have said, nor what I will say in the future, should be taken as reflecting adversely upon the experienced family consultant, Ms Dawson.  In any event, if there has been some curtailment of the time that the mother had with

    
    

    Ms Dawson, compared to the time that the father had with the family consultant, which in some way circumscribed the ability to deal with issues that the mother wished to raise with the family consultant, gives some reason for the Court to pause and consider the orders anew.

11. Secondly, Mr Brzostowski   SC readily accepted my suggestion that it would benefit the Court and the parties to have not only a family consultant different to Ms Dawson prepare a report for the final hearing in late April/early May. He also opined that that consultant should have the opportunity to attend upon each parent in their respective homes whilst [X] is living with each of them. This suggestion was not cavilled with by Mr Crispin, counsel for Mr Barnett. Certainly, for my part, as much assistance as possible that can be provided to the parties and the Court prior to and during the course of the hearing should be pursued.

12. Thirdly, one concern I have with the current regime whereby [X] lives primarily with her father on the South Coast and spends defined with her mother is that, having regard to [X] being only 8 years old, it may so entrench her perception of matters relevant to the final hearing that it could unduly prejudice the assessment by the new family consultant, and therefore, ultimately cause difficulties, if not potentially prejudice the resolution of issues at the final hearing. Again, a revisiting of the orders of last August should, in my view, occur.

13. Fourthly, it also appears to me that, at this stage, it has not been possible to have sufficient regard to [X]’s relationship with her brother, [Y].  This being a significant relationship under the Act, appropriate attention needs to be given to it, both in the new report that is to come and, in due course, by the Court at the final hearing. 

14. In my view both parties should have the opportunity to have [X] live with them in as stable a setting and circumstances as possible for a significant period of time, so that the most appropriate assessment can be made of issues relevant to the making of parenting orders at a final hearing.  I note too that a shared care arrangement was in place prior to Mr Barnett's somewhat pre-emptive relocation with [X] in August. 

15. I am also conscious of the fact that if any change is to be made to the August 2008 orders, it is better that that occur now, than much close to the trial by which time [X] would have been living with her father for a much longer undisturbed period of time. 

16. I am conscious that there will be some immediate, and perhaps short term, disruption to the existing living arrangements.  However, having regard to the longer term interests of determining what is in [X]’s best interests, in my view, such matters will likely be of limited duration. Moreover, because (a) the orders are to take affect only upon the commencement of the Christmas school holiday period in a couple of week’s time, the current arrangements should continue, thereby minimising any immediate hiccups, (b) the holiday arrangements are exactly the same as they would have been under the August orders, and (c) no orders are made in relation to the residence of either parent, matters that are likely to be addressed directly at the final hearing.  In my view, matters of hardship are very much at the lower end of the scale for all involved. 

17. For these reasons and in the light of the Full Court’s decision and comments and K & B I grant the stay application on the terms set out in the orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Neville FM

Associate:     R. Davidson

Date:              28 January 2009