Lorreck and Watts

[2018] FamCA 106

FAMILY COURT OF AUSTRALIA

LORRECK & WATTS [2018] FamCA 106

FAMILY LAW – ORDERS – Stay – Interim orders – Refused

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT: Ms Lorreck

RESPONDENT: Mr Watts

INDEPENDENT CHILDREN’S LAWYER: Ms L McGregor

FILE NUMBER: CAC 23 of 2009

DATE DELIVERED: 23 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 23 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Hassall
SOLICITOR FOR THE APPLICANT:	Joseph Tallarita

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. The application for a stay is dismissed.

2. The directions listed for 21 May 2018 are vacated.

3. The matter is listed for further directions on 3 May 2018 at 4pm and the mother is granted at liberty to attend by telephone on that day.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lorreck & Watts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 23 of 2009

Ms Lorreck

Applicant

And

Mr Watts

Respondent

REASONS FOR JUDGMENT

1. This is an application for the stay of an interim determination pending the hearing of an appeal on the matter.  The interim determination involved a reversal of residence from what had previously been a well-settled arrangement for the two children living with their mother in far North Queensland.  That arrangement had been in place since approximately 2012 and the interim orders involved a change from them living with their mother and attending school in North Queensland to living with their father in Canberra and attending school in Canberra.  It involved a change in the households in which they live, from with their mother, with whom they had previously spent all of their life, although part of that shared with their father, to living with the father, with whom they have stayed during school holiday periods along with their stepmother and siblings.

2. The principles relating to the granting of a stay on an appeal are helpfully set out in the case of Aldridge & Keaton (Stay Appeal).[1]I was taken to the principles that the applicant regarded as most salient; I will touch upon those as I ideal with each of the principles.

   [1] [2009] FamCAFC 106.

3. The first, which was accepted by the applicant, is that the onus to establish a proper basis for a stay is on the applicant for the stay.  However, I accept that it is not necessary for the applicant to demonstrate any special or exceptional circumstances.  That is, the respondent in these proceedings, Mr Watts, is a person who has obtained a judgment and is entitled to the benefit of that judgment and entitled to presume that the judgment is correct.  It is certainly the case that the mere filing of an appeal is insufficient to grant a stay.  The bona fides of the applicant were briefly addressed but I accept that she has a genuine interest and a genuine desire to prosecute the appeal in this matter and that her application has the appropriate bona fides.  What was addressed to me as being a matter of particular weight in these proceedings is the risk that an appeal may be rendered nugatory if a stay is not granted.  Generally such a factor relates to the risk of the destruction or loss of the subject matter of the proceedings if a stay is not granted.  That can sometimes be a difficult matter to apply in child-related proceedings where the arrangements concerning children are dynamic in many respects.   I accept that I acknowledged in the judgment at first instance that although I did not accept that the Independent Children’s Lawyer was technically correct to then describe a change in where the children were to live as being in effect a final decision, it was a matter that had the capacity to have a significant impact upon the final disposition of matters.  It is of course true that a settled arrangement where the children are living is a matter which can have a significant impact upon final proceedings.  That will fall to be determined in the light of a number of different considerations in the final proceedings for this matter.  What may accentuate its weight in this matter is its relationship to the fracturing of the relationship between the children and the mother.  However, I do not regard that a failure to grant a stay will render the appeal or ultimately the final proceedings nugatory.  That is a matter that was weighed into the balance in making the original determination in the context of a final hearing, which it seems is likely to take place at about the same time as the appeal in this matter in the ordinary course of events.

4. I was helpfully taken through some of the grounds of appeal by counsel for the mother in order to assess the strength of the proposed appeal.  I rely upon the exchange that I had with counsel in relation to those grounds and, accepting that I may be wrong in the assessment, at present I do not assess them as being strong grounds.  In part they seem to be reliant upon a misunderstanding of the reasoning as expressed in the ex tempore reasons that were given, and appear heavily reliant upon a critique of the weight given to discretionary factors. If such constitutes a valid ground of appeal it is a notoriously difficult ground of appeal to make good in relation to a discretionary decision.  At present I do not assess the strength of the proposed appeal as being strong.

5. The key matters in relation to the determination of this issue of a stay relate to the desirability of limiting the frequency of any change in a child’s living arrangements and the best interest of the children.  This is a case in which at the interim proceedings I reached a conclusion that there were difficulties in terms of the fracturing of relationship between the mother and in particular the oldest of the children, X.  The material that has been put before me in relation to the stay reinforces that that is presently the case.  The assessment of the importance of that particular matter in the interim proceedings remains important to the assessment of whether or not a stay should be granted and is a strong reason not to grant the stay, particularly as it may cause the degradation of that relationship between the child X and his mother.

6. The Independent Children’s Lawyer helpfully drew my attention to the effect of the granting of a stay.  What that would mean in these proceedings is that the children will have moved from living full-time with their mother to commencing a new school at the start of the semester in Canberra, albeit only for a number of weeks at this stage. If an appeal is the next step in the process on the hearing of the appeal a stay, if the children were returned at this stage, could result in their further return to Canberra pending a shortly thereafter likely to occur final hearing, which may well result in a return to B Town.  Such a prospect of potential frequency of change would not be in the children’s interest in these proceedings, particularly under circumstances where a change in the living arrangements for them to return to B Town at the moment faces the prospect of returning to a relationship which I have assessed, on the interim proceedings and on the basis of material currently put before me, as still having strongly fractured features.  These matters together tell against the appropriateness of granting a stay, particularly as such being against the interests of the children and accordingly, the stay is refused.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 February 2018.

Associate:     

Date:  23 February 2018