JANSSEN & JANSSEN (No.2)

[2015] FCCA 2248

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANSSEN & JANSSEN (No.2) [2015] FCCA 2248

Catchwords:
FAMILY LAW – Stay – Application for stay pending determination of parenting Appeal – consideration of the bona fides of the Applicant for the stay – whether the Appeal would be rendered nugatory if a stay were not to be granted – whether Applicant has an arguable case – where hearing of Appeal has been expedited – best interests of the children – desirability of limiting the frequency of any changes to the children’s living arrangements – where stay refused.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Janssen & Janssen [2015] FCCA 2131

Applicant: MS JANSSEN

Respondent: MR JANSSEN

File Number: SYC 5802 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 August 2015

Date of Last Submission: 17 August 2015

Delivered at: Sydney

Delivered on: 19 August 2015

REPRESENTATION

Solicitor for the Applicant: Ms Koorey

Solicitors for the Applicant: Reid Family Lawyers

Counsel for the Respondent: Mr Grew

Solicitors for the Respondent: Verekers Wollongong Lawyers

Independent Children's Lawyer: Ms Volk

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyer

ORDERS

1. The Application in a Case filed on 27 July 2015 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5802 of 2013

MS JANSSEN

Applicant

And

MR JANSSEN

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application by the mother for a stay of interim parenting Orders made on 30 June 2015. The Orders provide that, until further Order:

   a)The mother is to have sole parental responsibility for the parties’ three children, X, born on (omitted) 2008, Y, born on (omitted) 2009 and Z, born on (omitted) 2011;

   b)The children are to live with the mother;

   c)The father is to have telephone communication with all three children for a period of no longer than fifteen minutes between the hours of 5:00 pm and 6:00 pm each Tuesday and Thursday;

   d)The father is permitted to send birthday cards and reasonable birthday gifts to the children by way of the mother’s solicitors;

   e)The children are to spend time with the father each alternate Saturday commencing on 1 August 2015 from 10:00 am to 11:00 am supervised by (omitted), such supervision to occur in Sydney until 30 September 2015; and

   f)From and after Saturday 3 October 2015, the children are to spend time with the father each alternate Saturday in Sydney from 10:00 am until 12 noon, supervised by (omitted), until Further Order of the Court.

Procedural History

1. The mother lodged an Appeal against the decision on 27 July 2015, together with an Application seeking expedition of the Appeal and an affidavit in support. She has since filed an Amended Notice of Appeal.

2. At the same time as she filed her original Appeal, the mother applied to this Court for a stay of some of the orders of 30 June. The Application for a stay was listed for hearing on 17 August 2015. It was unable to be listed any earlier due to the fact that I was absent on leave at the time the Application was filed. The Application was listed at the first available opportunity after my return from leave.

3. On 7 August 2015 Her Honour Justice Ryan granted the Application for expedition and listed the Appeal for hearing on Friday 21 August 2015.

4. On 12 August 2015 the Respondent father filed a Response to the mother’s Application in a Case, supported by an affidavit.

Orders sought

1. In her Application in a Case, the mother seeks the following (relevant) Orders:

   2.  That paragraphs 6 and 7 of the Orders made on 30 June 2015 be stayed pending the final resolution of the appeal filed by the Mother.

   3.  As a further condition of the stay pending the final resolution of the appeal, that paragraph 5 of the Orders made on 20[1] June 2015 be varied to read:

   “The father is restrained from sending cards, letters and gifts to the children other than birthday and Christmas cards and reasonable birthday and Christmas gifts to the children by forwarding the cards and gifts to the address of the mother’s solicitors who are to forward those cards and gifts on to the mother for her to give to the children”.

   [1] sic

2. In his Response to the mother’s Application in a Case, the father seeks the following Orders:

   1.  That the application for a stay of the orders made by Judge Scarlett on 30 June 2015 in the Federal Circuit Court at Sydney be dismissed.

   2.  That the wife pay the husband’s costs of this application.      

Evidence and Submissions

1. The mother relied on her affidavit originally filed on 27 July but updated by an essentially similar affidavit sworn on 17 August, the day the application for the stay was heard. The affidavit was subject to a considerable number of objections from Counsel for the father.

2. While it was not the subject of an objection, I note that I am referred to in paragraph [2] of the mother’s affidavit as “the Honourable Judge”. Whilst this is flattering, it is not strictly correct, as the title “the Honourable” is reserved for Justices of the Family Court and the Federal Court. Judges of the Federal Circuit Court are not entitled to be referred to as “the Honourable”. It is proper for a Judge of this Court to be referred to as “his (or her) Honour Judge (name)”.  

3. It was submitted on behalf of the mother that a stay would have no serious effect on the father, as he had only lost two hours of time with the children, each for an hour on 1 and 15 August. The Court should also regard the best interests of the children as a significant consideration.

4. Mr Grew of Counsel, for the father, drew the Court’s attention to the fact that the Appeal is listed for hearing on Friday 21 August, being Friday of this week. He submitted that the application for a stay should be dismissed as the refusal to grant a stay would not render the Appeal nugatory.

5. Mr Grew submitted that the Appeal has no merit at all and that the mother has done everything she can to prevent the father from spending any time with the children. The father had spent money on arranging for the supervision of his time with the children in accordance with the Orders on those two occasions.

6. The Independent Children’s Lawyer supported the stay, although she did not support the application to vary order 5 of the Orders of 30 June, which would have imposed a restraint on the father sending to the children the plethora of gifts about which the mother complains in her affidavit. She submitted that any variation to that Order should form part of the Appeal.

The law to be applied

1. To my mind, with respect, a helpful guide for trial judges dealing with applications for a stay pending the determination of an appeal against parenting Orders can be found in the decision of the Full Court of the Family Court of Aldridge & Keaton (Stay Appeal).[2] The decision contains in paragraph [18] a useful set of principles to be considered, including (relevantly):

   [2] [2009] FamCAFC 106

   a)The onus to establish a proper basis for a stay is on the applicant for the stay;

   b)A person who has obtained a judgment is entitled to the benefit of that judgment;

   c)A person who has obtained a judgment is entitled to presume the judgment is correct;

   d)The mere filing of an appeal is insufficient to grant a stay;

   e)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;

   f)Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   g)The desirability of limiting the frequency of any change in a child’s living arrangements;

   h)The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and

   i)The best interests of the child (or children in this case) are a significant consideration.   

Conclusions

1. I have considered the matters referred to above. The decision appealed from by the mother is a conservative one and it is surprising that the Independent Children’s Lawyer supports the granting of a stay. My reasons for making the orders that I did are set out in paragraphs [31] to [33] of the decision:

   31.    Clearly, the Court must take a conservative approach at this time. It would be inappropriate to make any order, in my view, permitting unsupervised time between the father and the children, in the light of the allegations of family violence, at least until the matter can be resolved at a final hearing.

   32.    The Independent Children’s Lawyer has made what appears to me to be a conservative proposal, providing for a period of, essentially, one hour per week between the father and the children, under supervision. I consider this to be in the children’s best interests, meeting the need to protect them from the risk of harm due to abuse or family violence. The fact that there is a family violence order in force is also a significant consideration.

   33. It should not be thought that the Court is bound to follow one or another of the proposals put to it by a party or the ICL. The obligation of the Court is clearly spelled out by s.60CA of the Family Law Act, to regard the best interests of the child as the paramount consideration. It so happens in this case, however, that I consider the rather conservative proposal put forward by the Independent Children’s lawyer as meeting the best interests of the children until the matter can be resolved at a final hearing.[3]

   [3] [2015] FCCA 2131 at [31]-[33]

2. It is curious, therefore, that the Independent Children’s Lawyer appears to have so little confidence in the proposal that she put to the Court at the interim hearing that she would support a stay of the Orders. I have no such lack of confidence.

3. I am not satisfied that there is any great merit to the Appeal.

4. What appears to have been overlooked by the mother is that the Appeal is scheduled to be heard on Friday of this week. With respect, the Full Court could hardly have listed the Appeal for hearing any earlier than it has done. There is no risk that the Appeal will be rendered nugatory of a stay is not granted, because under the Orders the subject of the appeal the father is not due to spend any time with the children, even under supervision, until 29 August.

5. The Appeal will have been heard by then. In effect, there is nothing to stay.

6. I do not see any merit in the mother’s proposed amendment to Order 5 as a condition of the stay, effectively turning a permissive order into an injunctive order. The order on its face is perfectly clear.

7. In my view, the Application for a stay is pointless. If the stay were to be granted, it would not achieve anything between now and Friday, when the Appeal is to be heard.

8. The Applicant has not established a proper basis for the stay and the Application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 19 August 2015