Lofts and Lofts (No 2)

[2016] FamCA 125

FAMILY COURT OF AUSTRALIA

LOFTS & LOFTS (NO 2) [2016] FamCA 125

FAMILY LAW – PRACTICE & PROCEDURE – STAY – where the mother seeks that final parenting orders be stayed pending an appeal – where the application is dismissed.

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013
Friscioni& Friscioni [2009] FamCAFC 43
Kelly & Kelly (1981) FLC 91-007
SRS & KLS & Child Representative [2005] FamCA 700
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT: Ms Lofts

RESPONDENT: Mr Lofts

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 1978 of 2013

DATE DELIVERED: 22 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 22 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Baker O’Brien Toll

RESPONDENT: Mr Lofts in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Duncan, Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The Applicant Mother’s Application in a Case filed 30 December 2015 for a stay of the operation of the Order made on 4 December 2015 is dismissed.

2. The Respondent Father’s Response filed 15 February 2016 in response to the Application in a Case filed 30 December 2015 is dismissed.

3. Each party is to bear their own costs of and incidental to today’s proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lofts & Lofts (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1978 of 2013

Ms Lofts

Applicant

And

Mr Lofts

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed 30 December 2015, the mother sought an urgent listing of the hearing of an application for stay of Orders I made on 4 December 2015 following a contested hearing which occurred between 18 and 20 May 2015. 

2. The record will make plain that Reasons for Judgment which support the Orders made on 4 December 2015 were only provided by the Court to the parties on 19 February 2016.  In such a circumstance, it could not be thought that the mother has delayed in any way whatsoever in either lodging the Notice of Appeal, which was filed on 24 December 2015, nor in prosecuting the application for a stay of the operation of the December 2015 Orders pending determination of her appeal.

3. For similar reasons, it could not be thought that the grounds of appeal as contained within the Notice of Appeal currently filed should be seen in any critical light.  By way of broad summary, the grounds of appeal there particularised assert errors on the evidence, a failure properly to consider the evidence which related to Mr Lofts’s use of alcohol and his mental health status and/or functioning and, by way of conclusion, in a sense, an assertion of error in the failure to find that the children will be at an unacceptable risk of harm if they are to spend unsupervised time with him as I ordered on 4 December 2015.

4. In support of the application for a stay of the operation of the Orders, the Applicant mother relies upon the contents of her affidavit filed 30 December 2015.  Recourse to the contents of that document suggests that, on 3 November 2015 - that is, about one month before the Order was made - she received information by text via Facebook from a friend of hers informing her of certain events, which included, according to the information conveyed, that the father had made a comment to the effect that if he saw her, he would kill her.  These asserted comments, which are denied by the father, other than by way of him recounting historical matters, are said to have occurred in a public place, (namely a tavern of some sort) whilst Ms Clark and, I think, her partner were present.  As a consequence of receiving that information, the mother attended upon the police. 

5. Later, on 23 November 2015, she received information from another friend of hers, who has subsequently, it seems, provided a statement to police, to inform her about a posting made by the father on his Facebook wall or account.  That information was forwarded to the mother by her friend. 

6. The father says in his evidence – and it is not, at this stage, contested – that the mother does not have access to the postings he makes.  And, in a sense, this seems to be corroborated by the fact that this information was conveyed to the mother by a friend. 

7. That information was brought to the attention of the police.  On 9 December 2015, they made an application for a protection order on the mother’s behalf.  On 16 December 2015, a temporary protection order issued, which, by its terms, includes a prohibition directed towards the father prohibiting him from using the internet to communicate with, publish pictures of or make comments about or concerning the mother.  I must say, on the evidence as it stands at the moment, it does not appear that he was communicating with her or publishing pictures of her, but one could conclude, clearly, that the contents of the statement posted to Facebook amounted to making comments concerning her.  The information before the Court at present includes the details of, and a copy of, the police application for the protection order. 

8. In responding to the application for stay, Mr Lofts has filed an affidavit by himself and affidavits from a number of others, the details of which I have previously read into the record.  By way of very broad summary, all of those people (save for Dr K) are members of the extended paternal family and/or friends of the father or cousins - some live in the local area and some have visited from Brisbane or other places and have spent time with the father, members of their extended family and the children during occasions of unsupervised time that have taken place pursuant to the Orders made in December last year. 

9. Excluding their reference to and statement of their opinions about the manner in which the contents of the statement posted to Facebook should be regarded, all of their evidence supports conclusions that the children’s interaction with their father in the time that has occurred to date has been positive, happy, supported by the presence of members of their extended paternal family and replete with opportunity to interact and spend time with cousins - of whom there appear to be quite a large number in the local area.

10. As I have already said, the father also relies upon evidence he has obtained from Dr K, a psychiatrist upon whom he had attended between, it seems, 2011 (after separation following referral by a general practitioner) and mid-2015.  Dr K’s affidavit establishes that his last substantive review of the father in a sense, occurred on 17 June 2015 (that is, after the trial of the matter) and that he then saw Mr Lofts on 2 February 2016 for the purpose of addressing his request that he provide evidence for him in meeting this application. 

11. Whilst the attendance on 2 February 2016 may or may not strictly be regarded as a therapeutic attendance, it is clear from Dr K’s affidavit material that he required Mr Lofts to undertake testing to determine the presence or absence of alcohol - his affidavit informs that a negative result was received in relation to the concern of excessive alcohol consumption.  This is clearly relevant in two ways: the first being the existence of a term of the operative order which prohibits the father from consuming alcohol whilst the children are in his care and, also, in relation to the assessment of risk undertaken during the course of the hearing and the submissions made by Mr Alexander on behalf of the mother in advancing the application for stay.

12. The principles applicable in considering an application to stay the operation of an order pending determination of an appeal are as summarised by Mr Alexander in the outline prepared on behalf of the applicant.  They are clearly apparent from authorities such as Kelly[1], Clemett[2], Aldridge & Keaton[3], Friscioni[4], SRS & KLS & Child Representative[5], and Trahn & Long (No. 2)[6]. 

    [1] (1981) FLC 91-007

    [2] (1981) FLC 91-013

    [3] [2009] FamCAFC 106

    [4] [2009] FamCAFC 43

    [5] [2005] FamCA 700

    [6] [2008] FamCAFC 194

13. Included within the principles to be applied are the following:  that a person (here the father) who has obtained a judgment is entitled to the benefit of the judgment and entitled to presume it is correct and that a stay of the operation of orders should not be granted as a matter of right but only upon a Court being satisfied that the applicant, who bears the onus of establishing a proper basis for stay, has made out grounds which justify (in the circumstances of any particular case) making an order staying the operation of existing orders. 

14. In determining the application, it is not necessary that an applicant, (here, the mother) demonstrate special or exceptional circumstances; rather, in determining whether or not to grant a stay of the operation of an order, it is important to consider the consequences for children of granting or refusing a stay - noting, of course, that children’s best interests are a significant consideration.  It has also been said on previous occasions by the Full Court that, in determining whether or not to grant a stay, it is especially desirable that the frequency of changes to arrangements relating to children should be limited as much as possible. 

15. In determining whether or not to grant a stay of the operation of orders pending appeal, the Court should also consider the bona fides of an applicant;  whether there has been undue delay;  the length of time it will take the appeal to be heard;  whether refusal of a stay renders a successful appeal nugatory (as this is a substantial factor);  the hardship, if it could be termed that, to an unsuccessful parent for a stay as weighed against the hardship to an unsuccessful respondent to the application for stay and where the balance of convenience lies;  and it is also appropriate to take into account a preliminary assessment of the strength of the appeal and whether there is an arguable case.

16. It could not be said, nor do I conclude other than that the mother has approached the filing of the appeal against the orders and determination I arrived at in December last year, other than on a bona fide basis.  I accept her bona fides.  As I have already said, there could not be thought to be any undue delay between the making of the order and the filing of the notice of appeal upon which the subsequent application for stay rests. 

17. In terms of determining the length of time for the hearing of an appeal, I can simply record that, as I understand it, the Full Court will sit in Brisbane in June, August and November 2016 of this year.  The Rules provide for an application for expedition of a hearing of any appeal - that determination, of course, being a matter for a member of the appeal division of this Court.

18. The substantive submissions made by Mr Alexander on behalf of the Applicant really advance that, absent a stay of the operation of the orders, a successful appeal will be rendered nugatory (in that the children will continue to spend unsupervised time with the father) in circumstances where the mother’s case on appeal (as it was at trial) is that this care arrangement places them at an unacceptable risk of harm. 

19. I am not persuaded that a refusal to grant a stay of the operation of the existing orders will render a successful appeal nugatory.  That is because, it seems to me, parenting orders are always capable of change.  If, after determination, it were concluded by the Full Court that I have erred in arriving at the orders pronounced in December 2015 and that there exists a proper and appropriate basis for the imposition of supervision over the children’s time with their father and that such result is in their best interests, then, of course, it will always be open to the Full Court to impose supervision.

20. I note that nothing contained in the affidavit material relied upon by the mother contains any basis upon which the Court could be persuaded that the children’s time with their father has exposed them to risk.  Her material does not refer at all to any of the unsupervised occasions which have occurred to date.  The only evidence before the Court today in determining the application for stay is overwhelmingly that the time has proceeded well, that the children have enjoyed it, that it has taken place with the support of and interaction with members of the extended paternal family on a number of occasions and that the children’s time has commenced to occur overnight at the home of their paternal great grandmother where their father continues to live.

21. Taking those matters into account, I consider, insofar as an assessment of balance of convenience (if that could be thought to be an appropriate way of outlining a conclusion about children’s best interests) that it would not be beneficial for the children to revert to spending one hour per fortnight at the local Contact Centre with the father after the opportunity they have had to spend unsupervised time with him.  As must be apparent, a significant aspect of this conclusion takes into account the absence of any evidence whatsoever from the mother to suggest that the children have been presented to her at the conclusion of such unsupervised time in any way that would cause concern for the level of care they have received whilst spending unsupervised time with their father.

22. For those reasons, then, I dismiss the application for a stay and the application made by way of Application in a Case. 

23. I accept the submissions made by Mr Alexander insofar as they touch upon what purports, in a sense, to be a cross-application as contained within Mr Lofts’s response to an Application in a Case filed 15 February 2016 seeking to vary the orders I made in December in last year.  It appears very much to me that the orders sought there do, in fact, amount to an application to vary. I am not persuaded that it is appropriate, nor open to the Court, at this point in time to consider such application.  So, for that reason, that aspect of the Application in a Case which was framed in the alternative will also be dismissed. 

24. I take into account also that – albeit as an alternative – Mr Lofts seeks an order that the mother pay his costs of responding to the application for a stay - on an indemnity basis.  Reading the Response to an Application in a Case filed 15 February 2016, he did not seek an order for costs in the event that his application for variation was successful, but did so if the mother’s application for stay of operation of the orders was dismissed. 

25. Either position would have resulted in the parties appearing today.  I take into account that Mr Lofts appears on his own behalf and that the various affidavits he has filed and relied upon in responding to the application for stay of the operation of the December order all appear, on the face of the documents at least, to have been prepared by him (albeit with the assistance, perhaps, of someone, perhaps, with some legal training).

26. I take into account that s 117(1) of the Act mandates that the starting point for an assessment of an application for costs in proceedings under the Act is that each party bear their own costs.  As I have said, I am not persuaded that the application for stay of the orders was anything other than bona fide on the part of the Applicant and there could not be thought to have been any delay or undue cost or delayed process in having that application determined. 

27. I decline to make an order as to costs in the manner sought by Mr Lofts.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 February 2016.

Associate:     

Date:    22 February 2016