Iris and Cohen (No.2) - [2011] FMCAfam 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IRIS & COHEN (No.2)

[2011] FMCAfam 180

FAMILY LAW – Parenting orders – interim order the subject of appeal – application for stay of operation of orders – addressing factors necessarily required for consideration of stay – no stay granted pending appeal.

Family Law Rules, r.22.11

Clemett & Clemett (1981) FLC 91013

Applicant:

MS IRIS

Respondent:

MR COHEN

File Number:

TVC 1134 of 2010

Judgment of:

Coker FM

Hearing date:

7 March 2011

Date of Last Submission:

7 March 2011

Delivered at:

Townsville

Delivered on:

11 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr Middleton

Solicitors for the Applicant:

Farrell Lusher Solicitors

Solicitors for the Respondent:

Bevan & Griffin

ORDERS

That the Application in a Case filed by the Mother on 4 March 2011 be dismissed.
That the time for the Mother and child’s return to Townsville be extended to no later than 4.00pm on Friday, 18 March 2011.

IT IS NOTED that publication of this judgment under the pseudonym Iris & Cohen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

TVC 1134 of 2010

MS IRIS

Applicant

And

MR COHEN

Respondent

REASONS FOR JUDGMENT

On 18 February 2011 I made interim orders in relation to arrangements with regard to the parenting of the child [X]. [X] was born [in] 2010 and therefore at the time that those orders were made had just turned five months of age. The application that is now before the court is made only some three weeks or so later, so that the child has not yet even turned six months of age.
The original interim orders provided for the child to live with the mother, but that the mother and the child return to live in Townsville, by 4 pm on 4 March 2011. The orders then provided for the parties to have equal shared parental responsibility and went on specifically to provide for the opportunity for the father to spend time with the child.
Orders were also made for the appointment of an Independent Children’s Lawyer and for the preparation of a report pursuant to the provisions of section 11F of the Family Law Act. The report was to be undertaken through interviews to be conducted on 23 March 2011 and the matter would then stand adjourned to 9.30 am on 11 April 2011 in Townsville, to consider the report and any recommendations of the Independent Children's Lawyer.
The orders particularly provided, as I have indicated, for the mother, Ms Iris, and the child, [X], to return to Townsville by 4 March 2011. On that day, the mother did not return to Townsville, but rather there was filed in this court an application in a case seeking an order in these terms:
1. That there be a stay of the orders dated 18 February 2011.
The application was made returnable before me on 7 March 2011 and the matter was argued before me that morning. Quite simply it was argued on the part of the mother that to order the mother’s return to Townsville along with the child, was an imposition of an enormous nature upon the mother and that it would be more appropriate for there to be further opportunity for consideration of issues before the Court and certainly to allow the appeal, which was filed on 3 March 2011, to be heard.
I am mindful, of course, of the fact that the application in a case before me is not a hearing of the appeal against the orders of 18 February 2011, but solely and exclusively a hearing of whether there should be a stay of the orders, pending appeal. The starting point in relation to such matters is that there is, if you like, a general contention that a party to litigation is entitled to the fruits of their litigation. In that respect I note that there is, as is so often the case reference made to the well-known reasons of Nygh J, in Clemett & Clemett (1981) FLC 91013, where his Honour stressed the importance of the welfare of the child outweighing that oft quoted principle.
In Clemett & Clemett (supra) and of course many cases subsequent thereto, consideration was given to the various factors that must be looked at in relation to considering whether or not to grant a stay, in relation to the operation of orders. There is, if you like, a need to consider a number of factors or grounds in relation to whether a stay should be granted and as Nygh J indicated, the strongest of those grounds to support a stay is a consideration of whether in fact, to fail to grant a stay would render a successful appeal nugatory. His Honour, in that particular case, indicated that such consideration was, perhaps, in many respects, more applicable in family law matters to financial cases rather than to children’s cases but in other respects there is, if you like, an even greater need to ensure that there is no radical disturbance caused to a child and to a child’s stability, pending any determination.
What must be looked at, therefore, in relation to this matter is whether it is appropriate to grant a stay, and whether in fact, to not grant the stay would make any successful appeal nugatory as a result of there being no opportunity for the mother in this instance, to be returned to the position she was in, at the present time. As well, there is a need to consider other matters that might be relevant, in relation to determination of whether a stay should or should not be granted.
Those other matters, not in any particular order, are a consideration of whether there are grounds and merits to the appeal, whether there has been any undue delay between the time of the making of the order and the filing of the application for stay, consideration of the bona fides of the applicant for the stay and the length of time that it would take for any appeal to be heard.
I intend to address those particular points in a somewhat different manner than would normally be the case. One would generally assume that it would be appropriate to deal first and foremost with the strongest or most significant of those grounds, the question of whether to not grant the stay would make an appeal nugatory, but the additional considerations that must be looked at in relation to this matter are not necessarily all that relevant, in relation to this determination.
The fact is that there are, of course, merits to the appeal and whilst the decision that has been made by me on an interim basis is a decision of a discretionary nature, I accept unconditionally that another judicial officer may, of course, have had a very different view in relation to the determination and therefore may have made another order in relation to the matter. There is certainly no suggestion that the appeal is without merit.
The appeal has been lodged very quickly in time and there has certainly been no suggestion of delay between the time that the order was made on 18 February 2011 and the filing of the appeal on 3 March 2011, or the filing of the application in a case, seeking a stay on 4 March 2011.
Additionally, of course, I have no doubt as to the bona fides of the applicant in relation to seeking a stay. There is no question that the applicant seeks orders very different to those sought by the father and whilst the applicant in this application was unsuccessful in the original interim hearing, there was no doubt as to the genuineness of the applicant in relation to the orders that she might have sought.
There is a concern that arises however, in relation to the length of time it would take for the appeal to be heard stemming, particularly, from the fact that there is simply no information whatsoever as to what that period of time might be. I inquired of counsel for the applicant mother what information, if any, might be available in that regard and he understandably indicated to me, that as he had only received his brief a matter of a day or so before, it was not an issue that had been able to be inquired into.
Whether, in fact, the appeal might therefore be able to be heard within a matter of weeks, within one or two months or much longer is unknown. What is, of course, of concern, however, is that without that knowledge there is a real possibility that if a stay were granted that there may be, in the alternative, no opportunity whatsoever for there to be involvement by the father, in the life of the child.
The fact is, and it was a significant matter in relation to the determination of the proceedings, that however it might have come about, the father had not even seen the child, the parents having separated before birth, and the mother having left Townsville before the birth of the child, such that if there were to be continued delay in relation to the hearing of the appeal and its determination, there may be a further significant period before there was any opportunity for any arrangements to be put in place with regard to the father’s involvement in the child’s life. It is one matter that is, of course, troubling in relation to the determination of these proceedings.
The real issue here is that strongest or primary ground, whether to not grant the stay would make the appeal nugatory. I struggle to a significant degree with that particular aspect of the matter because there are, similar to the situation that existed when hearing the interim application, very divergent and just as significant reasons attaching to the positions of both the mother and the father.
The father has had no opportunity for a relationship with the child. In one respect that would be a matter which may in fact be favourable to the position of the mother. Quite simply, the father has no relationship with the child and therefore there is no harm or hurt to the child if the father were not to have time with the child for a further period of time, whether it be long or short.
Balanced against that, of course, is the alternative consideration which is to say that the child has a right to a relationship with her parents and that is both of her parents, as well as other persons who would no doubt be significant in her life, including those members of the father’s family who would also seek to have a relationship with the child and therefore to grant the stay and allow there to be no real opportunity for there to be a relationship, is in fact facilitating a harm to the child.
It was emphasised to me, on the part of the mother, that one of the real issues of concern in relation to this matter was the element of the financial difficulties that the mother would experience, in relation to being required to return to Townsville for some period of time, pending the further hearing of this matter. That, to some extent, was answered both in the original documentation that was filed on behalf of the father in relation to these proceedings and more particularly appears clearly to have been addressed to a significant degree in material that has more recently been filed, which indicates offers having been made to assist with accommodation, travel expenses and the like.
There are certainly difficulties that arise in relation to this matter and there are certainly different issues to be considered. If one is to look, however, at that most significant of grounds, whether the failure to grant a stay would make even a successful appeal nugatory, one must be mindful of the fact that there is little in my assessment that would indicate that that would be the case here.
The mother has moved, albeit prior to the birth of the child, to New South Wales. Before that, however, she lived in Townsville and was established enough in the Townsville area to have formed a relationship with the father and to have fallen pregnant, such that the child, the subject of these proceedings, was conceived.
The father seeks to have the mother in the same locality as that in which the two of them were resident, at least until the mother departed, so that there can be an opportunity for the relationship between the father and the child to be fostered. I fail to see that there could be any effect upon a successful appeal that would result from the fact that the mother might be required to return to Townsville.
It may, certainly, be inconvenient for her. It may not be what she wants, but to be required to return to Townsville, until such time as either the appeal is heard or in fact the final hearing is able to be determined in relation to this matter is not, I would think, under any circumstances a situation which would render a successful appeal nugatory.
It would be nonsensical to suggest, that if the mother were to return to Townsville for a period of some months and was then successful in the appeal, that she could not immediately return to whatever place she may wish to live. It is, however, when balanced against it, a very serious consideration as to the position of the father and his desire to have a relationship with his daughter. To grant the stay would continue the existing situation in respect of there being no real opportunity for a relationship between the child and her father, or extended members of the family on the father’s side.
When one looks at those two competing positions in relation to this matter, I am very much of the view that it is not a situation where it would be appropriate for there to be a stay granted. It may be a situation where the appeal can be heard quickly. It may be a situation where the mother will be successful in that appeal, but there is no proper basis upon which I could properly conclude that it would be appropriate for there to be a continuation of the situation that currently exists, which prevents, to all intents and purposes, a proper relationship being able to be at least commenced between the father and the child.
It is certainly a situation where the welfare of the child is the paramount consideration. That has always been the case and, in fact, in the decision of Nygh J, in Clemett & Clemett (supra), it was clear that his Honour there emphasised that the welfare of the child was to the forefront. His Honour also commented in relation to an application for a stay, involving orders in relation to parenting, that there should be as little frequency of changes in custodial arrangements as possible. In this case there is no suggestion of a change in the arrangements with regard to with whom the child should live. It was never suggested in any orders, though it certainly was suggested in the father’s material, that if the mother were not to return then that the child should live with him.
The fact is that the orders do not contemplate the mother not being the primary carer of the child. What they do contemplate, however, is the opportunity for both parents to have as best can be facilitated a relationship with the child, at least until there can be thorough investigation of what arrangements should be put in place. It is not, therefore, a situation where there would be a change in respect of the day-to-day care of the child but rather the opportunity for the involvement of both parents, in the life of the child.
Insofar as further investigation is concerned, I note that the original orders provided for the preparation of an assessment in relation to this matter and for the appointment of an Independent Children’s Lawyer. With respect, it is hard to imagine a more immediate or direct step being taken to investigate the future arrangements with regard to the parenting of the child. To grant the stay would facilitate the continued separation of the child from the opportunity of any relationship with the father and would lead to a real artificiality in the report process and any recommendations.
It is a fundamentally different consideration and in that regard I note that whilst it was argued strongly on the part of the mother that the stay should be granted because there had not been the full opportunity for investigation and inquiry in relation to this matter, I am far more inclined to the view that it is much more of a situation, where until such time as there can be that proper and complete inquiry in relation to arrangements, there should be the clear opportunity for both parents to be fully involved or as fully as possible, involved in the life of the child.
For the reasons, therefore, that I have given in relation to this matter, when considering the best interests of the child, I am of the view that to grant a stay in relation to this matter would not, in fact, be beneficial to the child and may in fact lead to greater issues of harm and concern with regard to the child. Accordingly, I dismiss the application in a case filed on 4 March 2011 and will extend the time for the mother and child’s return to Townsville to no later than 4.00pm on Friday, 18 March 2011.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 11 March 2011