K & B
[2006] FamCA 848
•1 September 2006
FAMILY COURT OF AUSTRALIA
| K AND B | [2006] FamCA 848 |
APPEAL - STAY - Refusal by trial Judge to grant stay of orders pending appeal – Assertion by appellant orders not within reasonable ambit of discretion - Assertion by appellant that trial Judge made error of law in finding the status quo was that which pertained as a result of his substantive orders rather than the circumstances that existed at the time he made those orders – Consideration of decision of W and W (unreported, 10 October 1996, Full Court of the Family Court of Australia) – Full Court did not purport to entrench a definition of ‘the present circumstances’ as a binding presumption –
W and W distinguished – No presumption status quo prior to the making of orders should be maintained on stay application – Trial Judge did not err in the exercise of his discretion – No error of law by trial Judge - Appeal against stay orders dismissed – Order made for expedition of substantive appeal.
| Family Law Act 1975 (Cth), s 38(2) |
EJK and TSL [2006] FamCA 730
EJK and TSL (No 2) [2006] FamCA 806
Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
W and W (unreported, 10 October 1996, Full Court of the Family Court of Australia)
APPELLANT: K
RESPONDENT: B
FILE NUMBER: SYF 3102 of 2003
APPEAL NUMBER: EA 82 of 2006
DATE DELIVERED: 1 September 2006
PLACE DELIVERED: Sydney
JUDGMENT OF: Warnick, May and Boland JJ
HEARING DATE: 29 August 2006
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 16 August 2006
COUNSEL FOR THE APPELLANT: Mr Batey
SOLICITORS FOR THE APPELLANT: Wallbanks Legal
COUNSEL FOR THE RESPONDENT: Mr Maurice
SOLICITORS FOR THE RESPONDENT: Greg Morahan & Co
Orders
That the appeal against the stay orders is dismissed.
That the appeal against the orders of the Honourable Justice Cohen of 30 June 2006 be expedited.
That a procedural hearing shall be conducted as soon as practicable by the Appeals Registrar, Eastern Region to settle the appeal book index and make such other procedural orders as are necessary for the prosecution of the appeal in the week commencing 30 October 2006.
FAMILY COURT OF AUSTRALIA AT SYDNEY
APPEAL NUMBER: EA 82 of 2006
FILE NUMBER: SYF 3102 of 2003
K
Appellant
And
B
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to a dispute between the parents of JK (‘the child’) aged 4 years. The child’s parents K (‘the mother’) and B (‘the father’) were involved in contested parenting proceedings before Cohen J. His Honour published reasons for judgment and made orders on 30 June 2006. The orders provided, inter alia, that the father have limited unsupervised contact to the child commencing on 2 September 2006 with a regime of gradually increasing contact leading to overnight contact by April 2007, and by 2010 in addition to weekday and weekend contact, for school holiday contact as well as other special occasion contact.
The mother had opposed any contact between the father and the child. It is not in dispute that tragically the child suffers what the trial Judge described as a ‘severe genetic disease known as Crouzon’s syndrome’, and she has already in her short life required a number of surgical procedures. It is the mother’s position that the father lacks the knowledge, and/or is an unsuitable person to provide proper and adequate care for the child.
Following the making of orders by the trial Judge, which provided firstly for a number of occasions when the father could spend time with the child in the presence of a qualified counsellor, the mother filed an appeal and sought a stay of the trial Judge’s orders. Cohen J refused the mother’s application for a stay on 16 August 2006. We are now dealing with the appeal against the refusal by the trial Judge to stay his orders made 30 June 2006 pending appeal. For convenience, we will refer to this appeal as the ‘stay appeal’.
The mother filed an application for expedition of the stay appeal which was neither supported nor opposed by the father. Boland J expedited the stay appeal on 25 August 2006.
MOTHER’S GROUNDS OF APPEAL AND FATHER’S NOTICE OF CONTENTION
The mother relies on the following grounds of appeal in her Notice of Appeal filed 18 August 2006:
‘1.That His Honour’s discretion miscarried in refusing to grant Order 2 of the Orders sought by the Mother in her Form 2 Application filed 27th July 2006;
2.That His Honour’ [sic] erred in law in refusing to grant Order 2 of the Orders sought by the Mother in her Form 2 Application filed 27th July 2006;
3.Such further or other grounds as may be apparent when a transcript of the proceedings and His Honour’s Reasons for Judgement [sic] are available.’
(Order 2 of the orders sought by the mother referred to in the grounds, was the request for the stay).
The mother seeks, in the event her appeal is successful, that there should be no orders for the child to spend time with the father pending the hearing and determination of her substantive appeal against the trial Judge’s orders made 30 June 2006.
The father has filed a Notice of Contention. There is no provision in Chapter 22 of the Family Law Rules 2004 (‘the rules’), which deals with appeals, for a Notice of Contention. Section 38(2) of the Family Law Act 1975 (Cth) (‘the Act’) provides if the rules made under the Act or the Family Law Regulations 1984 are insufficient, the rules of the High Court ‘as in force for the time being, apply, mutatis mutandis, so far as they are capable of application’. Rule 42.08.5 of the High Court Rules 2004 provides:
‘42.08.5 Where a respondent does not seek a discharge or variation of a part of the judgment actually pronounced or made, but contends that the judgment ought to be upheld on the ground that the court below has erroneously decided, or has failed to decide, some matter of fact or law, it is not necessary to give a notice of cross-appeal, but that respondent shall file and serve, within the time limited by rule 42.08.1, a notice of that contention in Form 27.’
The contentions set out in the father’s Notice of Contention are as follows:
‘1.That His Honour ought to have distinguished the Full Court’s decision in [W and W] (Unreported 10 October 1996) as it was decided prior to the enactment of the Family Law (Shared Parental Responsibility) Act 2006; including:
a. The objects in sec 60B (1) and (2) of the Family Law Act 1975 (“the Act”);
b. The primary consideration in sec 60CC (2) (a); and
c. The Presumption in sec 61DA (1) combined with sec 61DA (3)
2.That His Honour ought to have distinguished the Full Court’s decision in [W and W] on its facts.
3.That His Honour ought to have distinguished the Full Court’s decision in [W and W] as it did not relate to orders providing only for a child to spend time with a parent.
4.That His Honour ought to have distinguished the Full Court’s decision in [W and W] as in that case the orders appealed from were interim orders only.
5.That His Honour ought to have distinguished the Full Court’s decision in [W and W] as in that case the Full Court found that the parenting arrangements in place prior to making the interim orders appealed from were satisfactory.
6.That His Honour ought to have determined the best interests of the child by reference to sec 60CC of the Act.
7.That His Honour ought to have found that there was no evidence or no admissible evidence before him that there was any risk of the child [JK] being subjected to, or exposed to, physical or psychological harm from abuse, neglect or family violence when in the care of the respondent.
8.That His Honour ought to have drawn an adverse inference against the Appellant as:
a. She had erroneously deposed in her affidavit sworn 26 July 2006 that the respondent had not seen the child since 18 August 2002; and
b. She chose not to give any evidence about the time the child had spent with the Respondent Father since the making of the orders.’
MANNER OF DEALING WITH THIS APPEAL
This appeal raises the following issues:
· the correct principles to be applied in determining a stay application involving parenting orders;
· whether there was any appealable error by the trial Judge in the exercise of his discretion in refusing to grant a stay of his orders; and
· what effect, if any, do the provisions of Part VII of the Act have in dealing with a stay application.
After considering the trial Judge’s reasons, and the parties’ submissions, we propose firstly to discuss the general principles relating to a stay application, then to examine the relevant matters considered by the trial Judge in the exercise of his discretion, and in particular, the question of what ‘status quo’ was relevant (that is, before or after the orders of 30 June 2006). Finally, we propose if necessary to consider the status of the Notice of Contention, and the effect of the legislative changes which have occurred with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) (‘the amending legislation’).
THE TRIAL JUDGE’S REASONS FOR JUDGMENT AND ORDERS
The trial Judge delivered brief ex tempore reasons in which he set out the competing applications of the parties before him in the substantive proceedings. He noted the father’s case was he could provide adequate care for the child, and the mother’s case was the father could ‘not be trusted to provide adequate care for the child’, that the child would suffer indirect harm caused by the mother’s distress at the father having contact to the child, or the child being taken from the mother’s care.
The trial Judge referred to the mother’s affidavit material in which she deposed that, after the making of orders on 30 June 2006, the child had some heart related tests and was due to have an MRI. His Honour said:
‘There is no evidence before me to suggest that the results of that MRI, if known, indicate that any special changes to her care are necessary. But in view of the findings that I have already made, it follows that the father would be capable of coping with any changes to her routine which might be necessary, including careful observation of her condition or the administration of medications or other related procedures. There were no proposed treatments which would require special parental skills to be undertaken in the near future at the time of hearing. There is now no suggestion in the evidence that there might be any change in that respect. If there is, it is my finding that the husband would be capable of providing proper care for the child.’
Having referred to the relevant principles to be applied in respect of an application for a stay, the trial Judge went on to consider the orders he had made, noting they had ‘specific and rather unusual provisions’. The orders to which the trial Judge referred were Orders 10 and 11 of his orders. Those orders are in the following terms:
‘10.The counsellor appointed pursuant to Order 1. is hereby requested to notify the parties and the Court, in writing, forthwith in the event that he or she forms the opinion that the said child is ready to commence having contact with the father pursuant to these orders.
11.That the father shall have contact with the said child as follows:
(a)From either the first Saturday after the counsellor appointed pursuant to Order 1. informs the parties and the Court in writing that the said child is ready to have contact with the father or the first Saturday after the expiration of two months from the date of these orders and thereafter on each Saturday until 30 September 2006 from 9.00 a.m. to 10.00 a.m. and each Wednesday from 6.00 p.m. to 7.00 p.m.;
(b)from 1 October 2006 to 31 December 2006 on each Saturday from 9.00 a.m. to midday and each Wednesday from 5.30 p.m. to 7.30 p.m.;
(c)from 1 January 2007 to 31 March 2007 on each Saturday from 9.00 a.m. to 5.30 p.m. and on each Wednesday from 5.30 p.m. to 7.30 p.m.;
(d)from 1 April 2007 to 31 May 2009 from after school each Friday if or once the said child has commenced school and otherwise from 5.30 p.m. on each Friday to 5.30 p.m. on the Saturday immediately following and from 5.30 p.m. to 7.30 p.m. each Wednesday;
(e)from 1 April 2009 to 31 March 2010 from immediately after school or during school holidays from 5.30 p.m. on each Friday to the commencement of school or during school holidays to 9.00 a.m. on the following Monday and from 5.30 p.m. to 7.30 p.m. each Wednesday;
(f)from 1 April 2010:
(i)each alternate weekend during school term from after school on Friday to the commencement of school on the following Monday;
(ii)for the first half of each Easter, Winter and Spring school vacation from after school on the last day of term to 5.30 p.m. on the last day of the first half of each such vacation;
(iii)for the first half of each Christmas school vacation commencing in any even numbered year from immediately after school on the last day of term to 5.30 p.m. on the last day of the first half of each such vacation;
(iv)for the second half of each Christmas school vacation commencing in an odd numbered year from 5.30 p.m. on the last day of the first half of each such vacation to 5.30 p.m. on the last Friday of that vacation;
(v)from 5.30 p.m. to 7.30 p.m. each Wednesday during school term.
(g)On Christmas Day:
(i)in 2006 from 3.00 p.m. to 5.00 p.m.;
(ii)in 2007 and 2008 from 3.00 p.m. to 7.30 p.m.;
(iii)in 2009 and in each odd numbered year thereafter from 5.30 p.m. to 5.30 p.m. on Boxing Day,
provided the father is not otherwise entitled by these orders to have contact on these days.
(h)On Father’s Day in 2006 from midday to 1.00 p.m. and in 2007 and thereafter from 9.00 a.m. to 5.30 p.m. provided that the father is not otherwise entitled by these orders to have contact on these days.’
His Honour recorded that ‘there already has been a degree of introduction’ referring to three sessions conducted in the Court premises in the presence of Mr L, a staff member in the Court’s Child Dispute Services. In considering the question of ‘status quo’, his Honour said:
‘From 14 July, and I accept the father’s evidence in this respect, he has built some rapport. The child has met him, spent time with him and had the opportunity to build sufficient rapport with him to feel comfortable with him for a period of contact. One then must ask what is the status quo. It is not that the child does not know the father, it is that she is being introduced to him. What then would constitute the least change in the face of a situation where there has been little contact so far, but the relationship is nevertheless evolving and has already taken a step away from being a situation where the father and the child were effectively complete strangers?’ (paragraph 11)
Thereafter the trial Judge considered four scenarios which could occur if he granted or refused the stay on the basis that the appeal against his orders was upheld or dismissed. In dealing with the scenario that he refused the stay, but the appeal was successful, his Honour said:
‘13 … I accept that there is likely to be a substantial difference between the situation which exists now and, if there is no stay, the relationship which might be created by the evolution of contact up to the time that the contact might be stopped.’
His Honour then said that the child would be, in the words of the mother’s counsel, ‘thrown into the lion’s den’, but concluded that the mother’s fears were not warranted. His Honour also took into account, that if the appeal was successful, in his view it was likely there would be a rehearing, and that such rehearing would, on the evidence, be ‘highly likely to result in the resumption of contact’.
THE PARTIES’ SUBMISSIONS
The thrust of the submissions made on behalf of the mother can be succinctly summarised. She asserts:
·failure to grant a stay will render a successful appeal nugatory;
·a stay would involve minimal hardship to the father, but failure to grant the stay could have the potential to cause hardship to the child; and
·the trial Judge was in error in regarding as the status quo the situation after the making of his orders, rather the status quo was that which pertained pre 30 June 2006.
In his written submissions the father’s counsel refers to the following matters:
·that the appeal is primarily an attack on the exercise of discretion by the trial Judge, and an appeal court should be reluctant to interfere with the trial Judge’s decision, it not being outside the reasonable ambit of his discretion, particularly as there is no challenge to his Honour’s factual findings including findings about violence;
·that his Honour did not err in law in providing for unsupervised contact after the period of introduction by the counsellor; or
·if his Honour erred in law, his decision should be upheld because the principle enunciated in W and W (unreported, 10 October 1996, Full Court of the Family Court of Australia) may be distinguished either because of the amending legislation or on the facts of this case; and
·further, the trial Judge should have drawn an adverse inference against the mother for failure to disclose that three supervised periods with the counsellor had occurred.
RELEVANT LAW
It is not in doubt that this appeal is an appeal from a discretionary judgment, and the limits on the interference by an appellate court on such exercise are well known (see House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
The jurisdiction to grant a stay was subject of recent discussion by the Full Court in EJK and TSL [2006] FamCA 730. The Full Court said in dealing with an application to permanently stay parenting proceedings in a case involving issues of forum non conveniens:
‘74. We have already referred to the provisions in the Act relative to the granting of a stay, and the case law which supports the exercise by the Court, in an appropriate case, to grant a stay pursuant to its inherent power. We accept that such inherent power is to be distinguished from the exercise of jurisdiction under a particular provision of Part VII. We accept as correct the reasoning in B v B (Re Jurisdiction) (supra) that a stay cannot be categorised as a parenting order as defined in the Act. It follows, therefore, that if some or all matters involving children are not in a special category, if it is appropriate for a Court, pursuant to its inherent power to grant a stay, then the best interests principle is not the paramount consideration, although the best interests of a child may, in a particular factual situation, be highly relevant or deserving of the greatest weight in considering whether the Court is a clearly inappropriate forum.’
In dealing with a subsequent stay application in the same case (EJK and TSL (No 2) [2006] FamCA 806) the Court noted the relevant principles to be applied:
‘16. It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:
“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 this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.”
17. Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (“the Act”) was subject to “the best interests test”, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J 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.”’
DISCUSSION
The principle relating to the prima facie position of the correctness of a judgment regularly obtained is not in doubt. This principle is especially apposite in commercial or financial cases (see Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220). The principle, whilst persuasive, is not always applicable to cases involving children. In this case the mother asserts if her appeal is upheld, and a Full Court re-exercises the discretion to make the orders she seeks, namely that she have sole parental responsibility for the child and that there are no orders for the child to spend time with the father, then absent a stay her appeal will be rendered nugatory.
It is clear from his Honour’s reasons for making the substantive orders that he carefully considered such a possibility, and rejected a position that there should be no contact (now referred to in the Act as ‘spends time with’) with the father. We are not in a position on this appeal, with limited material before us, to accurately assess the likelihood of the substantive appeal succeeding. We have regard to the fact that the trial Judge had the advantage of hearing all the evidence, and seeing the parties in reaching his conclusions and considerable weight must be afforded to his views in these circumstances.
The mother asserts on the stay application that the trial Judge made an error of law in finding the status quo was that which pertained as a result of his orders. The mother relies on the unreported decision of the Full Court in W and W (supra). In that case Ellis J, with whom Baker and O’Ryan JJ agreed, said:
‘I would with respect, at the outset, indicate that I am in complete agreement with the observations of the Full Court in Clemett and Clemett to which the trial Judge referred but, in my view, the trial Judge has misunderstood the reference in that passage to which she referred, the expression “the present circumstances of the child”. The Full Court was there, in my view, referring to the circumstances prior to the making of the order, a stay of which is sought, not to the circumstances after the making of the order when the order has been put into effect.’
There is no dispute in this case that the appeal is based on substantial grounds, that it is brought bona fide and is not a mere delaying tactic, that expedition of the appeal is sought, and it can be dealt with within a reasonable period of time. In these circumstances the question of the circumstances of the child at the time the orders were made required careful and weighty consideration. It is not in dispute that the father, until the three introductory sessions conducted in the presence of Mr L, had not seen the child since October 2002 when she was a baby. The trial Judge accepted that the child had no memory of the father. However the trial Judge in his substantive judgment did not find the child’s circumstances at the time the orders were made satisfactory. He accepted the expert evidence of Associate Professor Q that the child suffered separation anxiety when separating from the mother who was overprotective of her. His Honour said:
‘(b) … It is likely to be better for [JK] that she is exposed to situations which might increase her levels of anxiety than it would be to permit a situation to continue which will adversely affect her emotional balance as a teenager and adult. Deprival of a proper relationship with her father has that potential. If she grow up with the image of her father that her mother is bound to attempt to foster, this has a high likelihood of causing her great emotional harm in the future, especially because she already is likely to have the burden of an appearance which, despite the optimistic hopes that the prospect of a future operation bring in relation to her appearance, will cause her to have emotional problems relating to rejection or no-acceptance by others.’ (paragraph 110)
and further said:
‘Dr [Q] said in oral evidence that [JK] will benefit from knowing her father. By that I understand her to have meant that the benefit would outweigh any detriment; that she would have an overall benefit. She went so far as to say that she thought introduction of contact should occur as soon as possible after [JK] had recuperated from her latest operation “because it’s going to be a very difficult hurdle for the mother to overcome, but it has to be overcome at some stage” and that it is essential for her long-term social and psychological development that she be able to separate from the mother without discomfort. This, according to Dr [Q] whose opinions I accept without equivocation on this issue, is made exquisitely in point by the fact that she will not be able to develop “a robust personality” if she has difficulty at her age at the time of hearing in separating from her mother. Because of her appearance she will, much more than usual, need a robust personality.’ (paragraph 112)
Whilst we are cognisant that this stay appeal does not involve a challenge to Orders 10 and 11 made by the trial Judge on 30 June 2006 by reason of his Honour’s consideration of the effect of those orders in his stay judgment, we give some consideration to those orders.
Order 10 on its face provides for the counsellor appointed under Order 1 to facilitate the introduction of the father to the child over a period of two months to ‘notify the parties and the Court, in writing, forthwith in the event that he or she forms the opinion that the said child is ready to commence having contact with the father pursuant to these orders’ . However, Order 11 provides that contact shall occur between the father and the child on receipt of such opinion or shall automatically commence two months after the introductory phase.
During the course of discussion with the father’s counsel at the stay hearing, the trial Judge said:
‘HIS HONOUR: … And I must tell you I would have ordered a stay if contact hadn’t started.’
We have noted the major foundation for the mother’s challenge to the trial Judge’s refusal to grant a stay is based on her assertion that the trial Judge should have had regard to the ‘status quo’ as it existed at 30 June 2006 and not after the introduction phase of contact. She relies on an interpretation of ‘the present circumstances of the child’ by Ellis J as set out by us above.
We are satisfied that Ellis J did not purport to entrench a definition of ‘the present circumstances’ as a binding presumption incapable of displacement in a stay application. Rather, we have regard to the fact that later in his reasons Ellis J said:
‘I am further satisfied that the trial Judge, in coming to her decision, attached too much weight to what she described as “the present circumstances of the children”. I have come to that conclusion, notwithstanding the observations of Stephen J. in Gronow v. Gronow (supra).’
We discern in the factual circumstances of W and W (supra), a case where the trial Judge was dealing with a stay application against an interim order, and where there was no contest that children had been in a long standing satisfactory care arrangement, those circumstances were extremely relevant, and required very significant weight to be afforded to them.
Whilst this case on the surface may appear to fall into a similar category to the facts in W and W (supra) we are able to identify a number of distinguishing features:
· the trial Judge was determining an application at the end of final defended proceedings where he had heard all the evidence and observed the parties;
· the trial Judge made findings, based on the expert evidence, that the existing arrangements for the child were not satisfactory, and that structured arrangements for contact with the father should be put into place as soon as possible;
· the father’s evidence about the introductory contact was not subject of any challenge; and
· the orders for contact, although unusual, were ones designed to meet the child’s best interests.
We will return to discuss the orders made by the trial Judge later in our reasons.
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.
CONCLUSIONS
This appeal is essentially a challenge to the trial Judge’s exercise of discretion. As observed by the trial Judge the father is no longer a stranger to the child. The uncontroverted evidence before the trial Judge was the introduction sessions had been successful, and the child had commenced a relationship with the father.
We accept that Order 10 and the automatic introduction of Order 11 may be, without close examination of the trial Judge’s reasons, considered controversial. However we have regard to the trial Judge’s findings at paragraph 156 where his Honour said:
‘156. If the process of getting [JK] ready for such contact is delayed so that she is not fully prepared for contact after 2 months from these orders it is likely to be because the mother has interfered with her preparation. After all, [JK] got used to Dr [Q] in a very short time and is said by her G.P to be cooperative. In that event, it is in [JK]’s best interests, in my opinion, to proceed with ordered contact. By then, there will have been ample time to ensure that [JK] would be ready if not for the mother’s interference and any further delay is unlikely to result in greater readiness. In that event, the father will have to do his best to settle [JK] although it is likely to result in some stress for her. It will still be preferable for her welfare that contact commences rather than is indeterminately delayed.’
We do not accept in the circumstances of this case that the trial Judge erred in the exercise of his discretion in considering and weighing matters relevant to the granting or refusal of a stay.
In these circumstances, it is unnecessary for us to consider the matters raised in the father’s Notice of Contention.
FURTHER OBSERVATIONS
During the course of the hearing, we became aware that the child was hospitalised, and that there had been some disruption to the introductory regime. The father’s counsel indicated his instructions were that the father would consider some short extension of the introductory time with the child facilitated by Mr L.
We are of the opinion that this appeal should be expedited. Unlike the trial Judge we have the advantage of knowing the appeal can be heard in the week commencing 30 October 2006. In these circumstances, it appears to us that if, pending the appeal, either party is of the view that there is further relevant evidence which would warrant any variation of the trial Judge’s orders, then the appropriate course would be for such application to be made to the trial Judge.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 1 September 2006
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