Lorreck and Watts
[2013] FCCA 39
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LORRECK & WATTS | [2013] FCCA 39 |
| Catchwords: FAMILY LAW – Stay application. |
| Legislation: Family Law Act 1975 |
| Cases cited: O v L (2005) 196 FLR 224 |
| Applicant: | MS LORRECK |
| Respondent: | MR WATTS |
| File Number: | CAC 23 of 2009 |
| Judgment of: | Judge Neville |
| Hearing date: | 10 April 2013 |
| Date of Last Submission: | 10 April 2013 |
| Delivered at: | Canberra |
| Delivered on: | 16 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Counsel for the Respondent: | No appearance |
ORDERS
The stay application filed on 22 January 2013 be refused.
IT IS NOTED that publication of this judgment under the pseudonym Lorreck & Watts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 23 of 2009
| MS LORRECK |
Applicant
And
| MR WATTS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application to stay Orders that were made by this Court on 10th December 2012 allowing the two children of the relationship (10 year old [X] and 5 year old [Y]) to travel overseas with their Father for a short holiday. Those Orders are now the subject of an appeal.
For the reasons that follow, I decline to grant the stay sought by the Mother. Formally, it is refused.
The reasons proceed thus: firstly I set out the principles that apply to such applications, then I consider the straight-forward facts in the light of them.
Legal Principle
By way of general comment I have had regard to the following cases from which I have drawn some general principles regarding stay applications. The cases might be distinguished, however, between stay applications in commercial litigation as opposed to those in family law proceedings. That distinction was recognised specifically by Kirby J, sitting alone in the High Court in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329. At p.1332 [16] his Honour 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.
This distinction was recognised and accepted by the Full Court of the Family Court of Australia in EJK v TLS (No 2) (2006) 35 FLR 590 at 594 [17], where their Honours cited the observations of Kirby J in JRN & KEN to which I have just referred.
In family law stay applications, the original touchstone is the judgment of Nygh J in Clemmett v Clemmett (1981) FLC 93-103. More recent important cases from the family law jurisdiction are O v L (2005) 196 FLR 224 (Boland J); Elspeth v Peter [2007] FamCA 254 (Benjamin J); and a decision of Judge Altobelli in Mullen v De Bry [2007] 36 Fam LR 501.
From the non-family law jurisdiction, but which cases are not infrequently referred to in family law proceedings, are the New South Wales Court of Appeal judgment in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 (Kirby P, Hope and McHugh JJ), Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220 (Dawson J), and Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681 (Brennan J).
More recent High Court discussion of the principles applicable in stay applications, almost invariably citing one or more of the cases to which I have just referred (especially Myer Emporium and Jennings Construction), can be found in Hayne J’s ex tempore judgments in Nauru Phosphate Royalties Trust v Harris [2007] HCA Trans 329 (27th June 2007) and Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCA Trans 5 (24th January 2008).
In the light of the jurisprudence articulated over many years the following may be taken as a summary of the principles to be applied in relation to a stay in family law matters:
i)An appeal does not, of itself, confer or require the granting of a stay as of right.
ii)A stay does not constitute a “parenting order” per se and thereby immediately or directly invoke the operation of s.60CA regarding the best interests of the child being paramount.
iii)The interests of the child are, nonetheless, a critical consideration.
iv)The application must not be a mere delaying tactic.
v)The grounds of appeal must be substantial.
vi)The Court must consider whether the refusal to grant a stay would render the appeal nugatory in any respect.
vii)Having regard to the child’s best interests, changes to custodial arrangements in relation to the child must, as far as possible, be kept to a minimum.
viii)A Court is required to assess the issue of “hardship” on each of the parties should the stay be granted or in the event the stay is refused.[1]
[1] See here the discussion of Boland J in O v L at pp.230-231.
In addition to the above, for my part the most immediately relevant case that guides the determination of the current application, and not previously mentioned, is the judgment of the Full Court in K & B (2006) FLC ¶93-288 (Warnick, May and Boland JJ):
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.
Consideration & Resolution
As previously noted, the Application was filed on 22nd January 2013. The orders sought deal with a number of matters, most of which, in my view, relate specifically to the grounds of Ms Lorreck’s appeal. At the hearing (by telephone) on 10th April, I confirmed with the Applicant that the only matter I would deal with would be the stay Application. She confirmed that she understood the Court’s decision (and the reason for it) to deal only with that issue.
In the course of the brief hearing (with the Father, Mr Watts, not in attendance), Ms Lorreck confirmed that she would not have too much opposition to the older child, [X], going overseas for a holiday with his Father. However, she maintained that the younger child, [Y], in her view, would have some separation anxiety in being away from his Mother for the two weeks proposed by the Father. This is in circumstances where, pursuant to existing orders, both children regularly spend time (since the relocation, primarily in school holidays) with their Father in Canberra (with their Mother in Cairns).
Ms Lorreck confirmed that, as at the date of the hearing, the Father had not taken the children on the overseas holiday as originally sought.
The dispute is of extremely narrow compass.
I repeat the view previously expressed that I do not share the Mother’s concern about the children returning to Australia. Among a number of reasons, I consider it unlikely in the extreme that a [occupation omitted] – as Mr Watts is – should be considered, in any relevant respect, a ‘flight risk’ and that he would not return the children to Australia (and their Mother) at the conclusion of any short holiday overseas.
Having regard to the principles outlined earlier, a determining factor is the likelihood of success, or how ‘substantial’ are the grounds, of the appeal. In my view, the Mother’s prospects of success in the appeal are, respectfully, very slim. Further, I remain of the view that it is in the children’s best interests to spend holiday time with their Father, and with appropriate notice, flight and contact details, to do so overseas in accordance with the Father’s original application.
The stay application should be refused.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 16 April 2013
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