M and L (No.2)

[2007] FMCAfam 58

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & L (No.2) [2007] FMCAfam 58

FAMILY LAW – Application for a stay of parenting orders pending appeal – matters to be considered – children aged 8 and 5 currently living in different environments – best interests – whether any status quo exists – whether considerations of protecting children from unnecessary changes in care arrangements arises – appeal able to be heard shortly – merits of appeal.

Family Law Act 1975

In the marriage of Kelly 6 Fam LR 741
Carlin & Carlin (1977) FLC 90-320
Sanders & Sanders (1976) 26 FLR 474
Clemett & Clemett (1981) FLC 91-013
House v The King (1936) 55CLR 499
Gronow & Gronow (1979) FLC 9716

Applicant: S M

Respondent: P L

File number: DNM53 of 2006

Judgment of: Brown FM

Hearing date: 5 February 2007

Delivered at: D

Delivered on: 9 February 2007

REPRESENTATION

Counsel for the Applicant: Ms Uran

Solicitors for the Applicant: Davis Norman

Counsel for the Respondent: Ms Portelli

Solicitors for the Respondent: North Australia Aboriginal Justice Agency

ORDERS

THAT UNTIL FURTHER OR OTHER ORDER:

1. The operation of the orders of the Court made on 15 September 2006 is stayed pending the mother’s appeal to the Full Court of the Family Court of Australia.

2. The contravention application filed 22 December 2006 is adjourned to a date to be advised following the disposal of the mother’s appeal.

3. The Registrar of the Court provide a copy of these reasons for judgment to the Full Court of the Family Court of Australia.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
D

DNM53 of 2006

S M

Applicant

And

P L

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 15 September 2006, I delivered judgment and made parenting orders in this matter.  Pursuant to those orders, the parties’ two children, T aged 8 and S aged 5, were to live primarily with their father in the G area of the Northern Territory and spend regular periods of time with their mother, during school holidays, in the K/K area.  This arrangement was to begin at the end of the third term Northern Territory school holidays, which in 2006 was on 9 October. 

2. Sadly, the geographical difficulties and issues of cultural disparity, which were the background to the case at first instance, remain.  The current proceedings relate to an application by the mother for a stay of the orders of the court made on 15 September 2006.  The procedural history of the matter is as follows.

3. On 9 October 2006, the mother filed a notice of appeal in the Family Court of Australia.  The grounds of the appeal are as follows:

   “1.The Federal Magistrate did not give sufficient weight to the children’s primary attachment.

   2.The Federal Magistrate did not give sufficient weight to the father’s situation to be able to care for the children properly.

   3.The Federal Magistrate made factual error in determining that the mother left the children in the care of others for extended times.

   4.The Federal…