Lyone and Jackey

FAMILY COURT OF AUSTRALIA

LYONE & JACKEY

[2009] FamCA 137

FAMILY LAW – ORDERS – Stay of orders pending Appeal – Special circumstances of Champness & Hansen (No 2) [2008] FamCA 1012 – Paramountcy principle from Clemett and Clemett (1981) FLC 91-013 considered – Stay would not promote stability for the Child

APPLICANT:

Ms Lyone

RESPONDENT:

Mr Jackey

FILE NUMBER:

BRC

4670

2007

DATE DELIVERED:

2 March 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

17 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Mother appeared in person

SOLICITOR FOR THE RESPONDENT:

Mr Potts, Solicitor of Neumann & Turnour Lawyers appeared for the Respondent Father

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Brunswick, Solicitor appeared by telephone

Orders

(1)The Mother’s application for a stay of orders filed 21 January 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Lyone & Jackey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4670 of 2007

MS LYONE

Applicant

And

MR JACKEY

Respondent

REASONS FOR JUDGMENT

I am asked to determine an application in a case for stay of orders filed by the Mother on 21 January 2009. She seeks the stay in relation to the orders made by me on 12 December 2008 pending her appeal of the same.
The parties to the application were married in Switzerland in August 2002 and separated whilst living in Australia in September 2004. The Father was born in the United Kingdom and has dual citizenship in the United Kingdom and Australia. The Mother was born in Germany. Both parties were living and working in Switzerland at the time they were married.
The litigation relates to the child of the marriage, a son born in December 2002.
The Mother has two other children, her eldest a daughter is now of adult status and is residing in Australia attending university. Her other son is 9 years old and has recently left his Mother’s care in Australia and is currently residing with his Father in Switzerland.

Litigation History

The matter proceeded to trial in August last year. On the 12 December 2008 for reasons given at the time I directed that the Mother’s application to relocate with the child to Switzerland not be permitted. The effect of this was the child was to remain with his Father in South East Queensland. At the hearing each party was legally represented and the Court was assisted by the appointment of an Independent Children’s Lawyer. The Mother is now not legally represented.
The application before the Court filed by the Mother seeks orders in the following terms:
“1. That the Orders made by Justice Barry on 12/12/2008 stay until the Appeal is heard.”
The Father filed a response to the Mother’s Application in a Case on

10 February 2009
. He sought orders in the following terms:
“1. That the Mother’s Application in a Case filed 21 January 2009 be dismissed.
2. That the Mother pay the Father’s costs of and incidental to these proceedings.”
The Appeal in the Mother’s application referred to is an Appeal against those the orders made on 12 December 2008.
The orders of 12 December 2008 provided for the child to live with the Father, and spend time with the Mother at all times as agreed between the parties. The Father was granted sole parental responsibility for major long-term issues.
If agreement could not be reached with regard to time spent with the Mother, the orders provided:
4.1“From 9.00 am on 22 December 2008 to 9.00 am on 12 January 2009 and from 9.00 am on 19 January 2009 to 4.00 pm on Sunday, 25 January 2009; and
4.2Until the Mother relocates to Switzerland:
4.2.1Each alternate weekend from after school Thursday to before school Monday (or Tuesday if Monday is a Public Holiday or pupil free day) with the Mother to collect and return [the child] to school;
4.2.2For up to half of all Queensland School Holidays being the first half in the year 2009 and each alternate year thereafter and the second half in the year 2010 and each alternate year thereafter.
4.3Upon the Mother’s relocation to Switzerland for up to three (3) weeks in each six (6) month period (such periods to commence on 1 February and 1 August each year) provided:
4.3.1The Father provides the Mother with six (6) week’s written notice of his intention to travel to Switzerland with [the child];
4.3.2The Mother shall pay the Father for one half of [the child’s] travel costs before [the child’s] departure from Australia;
4.3.3The Mother provides the Father with contact details including mobile and landline telephone numbers and addresses for each place that she proposes to spend time with [the child] while he is in her care;
4.3.4Changeovers shall take place at the Zurich International Airport, Switzerland; and
4.4Upon the Mother travelling to Australia for the purposes of a holiday, for periods of three (3) weeks at a time provided:
4.4.1The Mother provides the Father with one (1) month’s written notice of her intention to travel to Australia;
4.4.2The Mother provides the Father with contact details including mobile and landline telephone numbers and addresses for each place that she proposes to spend time with [the child] while he is in her care;
4.4.3The Mother ensures [the child] attends all school and extra-curricular activities during the period; and
4.4.4[The child] returns to the Father’s care for a period of time equal to the period of time he has immediately spent with the Mother, for example, in the event [the child] spends two (2) weeks with the Mother, he would return to the Father’s care for a period of two (2) weeks before the Mother exercised any further holiday time in accordance with paragraph 4.4.
4.5By telephone or Skype each Monday, Wednesday and Friday evening between 6pm and 8pm Australian Eastern Standard Time with the Mother to initiate the call.”
The orders also provided that the Mother pay a bond of $10,000.00 before spending any time with the child in Switzerland and placing the child name on the Airport Watch List. There were also various orders regarding the provision of contact information and non-denigration, as well as confirming the child’s name as Jackey.
A large part of the findings at the trial were founded on an indication by the Mother that she would be returning to Switzerland as soon as she was able, with or without the child. As events have transpired, she has yet to make that move.
In September last year one month after the conclusion of the hearing she took her son Y to live with his father in Switzerland.
Oral submissions on the stay issue were made before me on 17 February 2009, with each party handing up written submissions.

Law to be Applied

Rule 22.12 of the Family Law Rules 2004 (Cth) deals with applications for a stay pending the filing of a Notice of Appeal. The section provides:
“22.12 Stay
(1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2) If an appeal has been started, or a party has applied for permission to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must be made to the Judge, Federal Magistrate or Magistrate who made the order under appeal.”
On her material, the Mother seeks a stay of all of the orders of 12 December 2008, though in the course of her oral submissions it became clear she only intended to stay orders concerning where the child is to live and the issue of parental responsibility.
In determining an application for stay of orders pending an appeal, this Court has, in the past, made it clear that a stay will not be granted as a matter of course. In the recent case of Champness & Hansen (No 2) (2008) FamCA 1012, Burr J held that special circumstances would need to be shown for a stay to be granted. He referred to the “special circumstances” identified by Watson SJ in Carlin and Carlin (1977) FLC 90-320, namely:
·    The rights of the children;
·    The delays as to appeal;
·    Whether refusal of a say renders a successful appeal nugatory;
·    The hardship to the successful respondent in comparison to the hardship of the appellant; and
·    Grounds of appeal.
The principle enunciated by Justice Nygh in Clemett and Clemett (1981) FLC 91-013, namely that the paramount consideration in determining whether to grant a stay of orders is the welfare of the child, emphasising the desirability to limiting the number of custodial changes, has been questioned in a number of recent decisions.
There is merit in the view that the paramountcy principle no longer applies but at all times the Court would ensure that it makes an order which is perceived to be in the best interests of the child.
In EJK & TSL(No. 2) (2006) 35 Fam LR 590 the Full Court after quoting a passage from the decision of Clemett which indicated the welfare of the child as the paramount consideration noted:
“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 they are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised.”
In Brennan and Shaw (Stay Appeal) (2008) FamCAC 138 the Full Court noted:
“We consider the principles discussed above remain apposite after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) where a stay is sought in respect of parenting orders made under Part VII of the Act.”
This in effect confirmed the statements in the earlier decision in EJK and TLS quoted above.
When the matter first came before me in the Docket system in January 2008 the Mother had recently relocated from a residence in reasonable proximity to the former matrimonial home to N, a distance of approximately 40 kilometres. The Father continued to reside in the former matrimonial home. The Father sought week about arrangements. The Mother was pressing for the Father’s time to be limited to alternate weekend and half school holiday type orders. The Father conceded that the child could attend school in the N area and on a week about arrangement he would do all the driving to ensure the child attended at that school. The Father’s position at trial was if the Mother was to stay in Australia he would continue the week about arrangement. The Mother had at all times since the making of the interim orders in early 2008 been critical of the week about arrangement.
It was only just prior to the conclusion of the hearing that the Mother indicated she intended to return to Switzerland regardless of the result of the hearing. The Mother also pressed for orders for sole parental responsibility to be granted to her.
For the reasons given I ordered that the Father have sole responsibility in view of the fact the child was to stay in Australia and the Mother indicated she would be returning to Switzerland.
In paragraph 21 of written submissions dated 17 February 2009 the legal representative for the Father noted:
“21.The Father submits that the orders made on 12 December 2008 provide stability which for the past six months has been lacking. Furthermore, throughout her material for the final hearing on 4 to 6 August 2008, the Mother consistently argued that the shared care arrangement was not in [the child’s] best interests; that it was disruptive. The Mother cannot have it both ways. Only since the orders that [the child] live with the Father has the Mother become a convert to a shared care arrangement.”
In paragraph 22:
“22.It is submitted that the Mother’s position is not predicated on what will be in [the child’s] best interests, or will promote his stability. Rather she seeks any arrangements that will maximise the time [the child] spends with her, regardless of its impact on [the child].”
The Mother presses for a return to the arrangements prior to the hearing namely week about and that the child return to the school at N which he had previously attended. In her affidavit filed on 21 January 2009 the Mother deposes:
“8.The shared care arrangement put in place by Justice Barry in January 2008 meant a great change for [the child] as well as separation from his brother [T].
11.His social environment and friends are based in [N]. [The child] is familiar with the school environment and is looking forward to start grade 1 with his classmates in January 2009.”
In paragraph 12 she asserts that:
“12.In these extraordinary unstable circumstances with the pending appeal of the order made by Justice Barry on 12 December 2009 [sic] it would expose [the child] to more likely changes that he already had to endure.”
In his affidavit the Father deposes to the fact that over the Christmas period the child spent time with his Mother from 22 December 2008 until 12 January 2009 and then again from 19 January 2009 to 25 January 2009. In paragraph 8 he says:
“8.It was anticipated she would travel to Switzerland early in the new year.”
In paragraph 9 he says:
“9.Following the judgment on 4 December 2008 and the appearance before the Court on 12 December 2008 [the mother] has not told me when she intends to relocate to Switzerland.”
The Father says he has enrolled the child at the C State Primary School approximately seven kilometres from his home. The child has been there from the time of commencement of school at the end of January this year.
The effect of acceding to the week about arrangement by the Mother would necessitate the child being removed from the school and returning to the N Primary School. The Mother says because she is on anti-depressants she is unable to drive. She certainly was not proposing that the child remain at the present school but still spend week about in each household. That is an option that I would have considered but for the fact the Mother is not prepared to do any of the driving. Where the Father pursuant to Court orders has enrolled the child in the school I do not believe it is fair to require him every second week to continue to transport the child back to the N area where the Mother resides.
I have considered the submissions made on behalf of each party. In the event the Mother’s appeal is ultimately successful whether by direct order of the Appeal Court or by way of a retrial the child would travel to live in Switzerland with the Mother. The Mother does not intend to stay in the Sunshine Coast region. In the event the Appeal is dismissed the Mother will be travelling back to Switzerland whilst the child remains in his Father’s care in his present environment.
The proposals put forward by the Mother to my mind would lead to greater instability in the child’s life necessitating a possible change back to the N Primary School and later then to return to the school he is presently attending. The factor that the Mother pressed that the child should spend time with his half-brother T is no long relevant as T is residing with his Father in Switzerland and for the foreseeable future that situation will continue.
The Independent Children’s Lawyer supported the Father’s position that the stay application be dismissed.
I have had regard to the submissions made by the legal representatives for the Father and the Independent Children’s Lawyer and accept the force and accuracy of such submissions. The Mother’s application for a stay of the orders filed 21 January 2009 is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate:

Date: 2 March 2009

[2009] FamCA 137

2 March 2009

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Stay of Proceedings

Appeal