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:

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:

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

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.
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.
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 Magistrate did not give sufficient weight about the mother’s role as a primary care giver of the children.
5.The Federal Magistrate failed to take into consideration about the separation between the children and their unborn brother/sister.
6.The Federal Magistrate failed to take into consideration that the mother’s culture is just as important as the father’s culture.”
It is common ground between the parties that, on 7 October 2006, the father, with his parents Mr R and Mrs N L, travelled from G to K to collect T and S from the mother, pursuant to the orders of 15 September 2006. It is also common ground that the younger child S left K with the L family at this time but T remained behind with his mother. This remains the position to the current time.
Accordingly, the two children are currently separated from one another. Undoubtedly, up to this stage, the two children have largely grown up together. During the proceedings before me in late August of 2006, both parties sought that the children should continue to live together, regardless of the outcome of the case. Obviously that is no-longer the situation and it seems an impasse has arisen in the matter, which is satisfactory neither to the parties concerned nor their children.
On 22 December 2006, the father lodged a contravention of children’s orders application in this court. In his application, the father alleged that the mother had failed to comply with the final orders made in the case, in the sense that she had declined to make T available to live with the father on 7 October 2006 and thereafter had refused to discuss the issue of T’s care with the father further. The contravention application was made returnable on 16 January 2007. This was the first intimation to me that the orders of 15 September 2006 were not being followed. Up to this stage, I was also unaware that a notice of appeal had been filed.
Rule 22.12 of the Family Law Rules deals with the stay of orders pending appeal. It reads as follows:
“(1)The filing of a Form 20 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 16 January 2007, Ms Davis, counsel for the mother, advised me of her client’s appeal. She also advised me that her client would be making an application seeking the stay of the orders of 15 September 2006 shortly.
On 24 January 2007, the mother filed an application in which she sought the following orders:
“1.That a stay be granted in respect of orders made by His honour Federal Magistrate Brown in the Federal Magistrates Court at D on 15 September, 2006 pending the Appeal before the Full Court of the Family Court of Australia.
2.Further/Other Orders as the Court deems appropriate.”
In support of her application, the mother filed an affidavit. Counsel for the father, Ms Portelli orally indicated her client’s opposition to the stay application. In this regard, her client relies on his affidavit filed in support of the contravention application on 22 December 2006. The mother’s application for a stay was listed for hearing before the court on 5 February 2007.
It is now approximately four months since the orders of 15 September 2006 were to take effect. The parties have different views as to what has occurred in this intervening period. It is not possible for me to resolve these disputed factual issues at this time. It was not appropriate, given that the final hearing had been concluded and a notice of appeal lodged, that I should embark upon the taking of oral evidence and cross-examination at this stage of proceedings. In any event, neither the father nor the mother attended the court on

5 February 2007.
It is the father’s view that the mother emotionally manipulated T on 7 October 2006 so that he was unwilling to leave K with his father, as the orders required. In what he believes were difficult circumstances, which the mother herself had precipitated, the father elected, in the short term, to respect T’s ostensible wishes and not unnecessarily increase the level of his emotional disturbance by seeking to force the issue at that stage.
Thereafter, correspondence passed between the parties, via their respective solicitors. The father suggested that T could be exchanged between the parties at a neutral location. He suggested the J police station. The mother rejected this suggestion on the basis that she was unable to travel due to illness related to her pregnancy.
On 18 October 2006, the mother rejected a further suggestion that the P C police station be used as an exchange point. P C is somewhat closer to K than J. Rather she proposed that the father come to K to collect T. However, the father did not attend K on this occasion, as he did not apparently have petrol money and also had obligations to attend a funeral on G I. He also believed that a further trip to K was likely to yield the same result as his trip of 7 October 2006 and so be fruitless.
It is the mother’s position that she has not sought to influence T in any way. She asserts that she has told T about the court orders but he refuses to go to his father’s home. She is critical of a number of aspects of the reasons for decision provided in September of 2006. In particular she asserts that S and T’s main attachments are to her and the court failed to consider adequately issues to do with the father’s consumption of alcohol and prevalence to violence. She has other criticisms of the father’s ability to care for the children adequately. She also believes the court has given insufficient weight to the importance of T and S’s likely attachment to their recently born half sibling. In my view, all these were matters which were canvassed in the earlier decision. However I do not doubt the mother’s dissatisfaction with the outcome of the case.
The mother experienced complications with her pregnancy. Her child was delivered prematurely and it was necessary for the mother to spend an extended period of time in the intensive care unit at the Royal D Hospital. During this period, T apparently travelled from K to D to visit his mother. Proposals were put by the father to collect T in D but these proposals did not bear fruit.
Pursuant to the orders of 15 September 2006, both children were due to spend a period of time with the mother, at K, from 16 December 2006 onwards. This did not occur. The father acknowledges his awareness of this aspect of the orders. The father deposes as follows:
“I then lost faith that T would be returned prior to it being time for me to deliver the children back to the Mother for school holiday contact which was to commence on 16 December 2006 until 6 January 2007. Instead I instructed my Solicitors to advise the Mother that I would return S on 16 December 2006 on the basis that T would be ready to come with me on 6 January 2007.
I have attempted to contact S on many occasions to make arrangements for S’s return from the holiday period. As I have limited financial means I want to ensure that S is in K before I spend the petrol money to go there, if she will not be there anyway.”[1]
On the other hand, the mother is critical of the father and his family for failing to ensure S remains in telephone communication with her and otherwise maintains a satisfactory level of relationship with her mother, in the period which ha passed since 7 October.
[1] See father’s affidavit of evidence filed 22 December 2006 at paragraphs 27 and 29
In correspondence which has passed between the parties’ solicitors, the father has indicated that he will apply to the court for a recovery order in respect of T. This has not as yet occurred. It is the father’s position that he wishes to avoid this extreme measure, if possible. He would prefer that this issue be resolved by the parties themselves. Nor has the father made any other application to the court containing some other proposal as to how the orders might be facilitated, such as the use of an intermediary or some neutral place for handover. During the final hearing before me in August of 2006, neither party canvassed the issue of how the exchange of the children between them should be facilitated, following judgment being delivered. I confess that this was not an issue to which I turned my own mind at the time. This is regrettable, as is perhaps the fact that the father himself did not bring the issue back to court sooner.
The father opposes the stay application. Notwithstanding the difficulties which have existed up to this stage, he proposes travelling to K over the weekend of 10/11 February 2007, in the hope that he will be able to collect T. Other than his willingness to make the journey and his reliance on the orders of 15 September 2006, he has no concrete proposals as to how the child will pass to him from the mother. In particular, he has not formally made an application for a recovery order for the child. It is the flavour of the father’s case that he believes that the mother will both actively and passively seek to undermine the orders of 15 September 2006, in the event the stay application is unsuccessful.
Further practical difficulties are also likely to exist in respect of the father travelling from G to K. Due to recent heavy monsoonal rain, the E A R is impassable. Accordingly, the father will have to travel by air from G to J. This is an expensive exercise, which the father is reluctant to undertake if the impasse regarding T remains. However, the father is desirous that T start school at G, with S, as soon as possible. At this stage, the father has no proposals as to how S should spend time with her mother in future, other than necessarily he would be required to make both children available to spend time with their mother in the forthcoming April school holiday period.
I note that he did not make S available to the mother in the recently concluded end of year holidays, as required by the order of 15 September 2006. I regard his explanation for this omission as being somewhat unsatisfactory. I am concerned that both parties may be motivated by tactical considerations in taking the actions which they have in the matter to date. In addition, I am concerned that the father may wish to pay the mother back, in the same coin as he perceives she paid him, so far as S is concerned. As I say, the present situation is unsatisfactory and makes something of a mockery of the orders of September 2006. I am left with the uncomfortable feeling that both T and S are being held hostage, against the other parent concerned, in defiance of the court’s order. This cannot be a good thing, so far as future arrangements for the care of the children are concerned, regardless of the ultimate outcome of the appeal.
I have not been provided with the appeal book in this matter. However, it seems to be common ground between the parties that the mother’s appeal can be dealt with fairly quickly by the Full Court, at least from the vantage point of today’s proceedings. The appeal is scheduled to be heard by the court in its sittings in D commencing on 12 March 2007, less than five weeks away. This is a significant matter.

The legal principles applicable

A stay is not to be granted to an appellant as a matter of course. Rather appropriate or “special” circumstances must be shown.[2] Accordingly the question of whether to grant or refuse a stay is a discretionary decision, which must be exercised having regard to the circumstances prevailing in the particular case and having regard to principles developed by the superior courts.
[2] See In the marriage of Kelly 6 Fam LR 741 at 743 per Fogarty J
In Carlin & Carlin[3] Watson J said as follows:
[3] See Carlin & Carlin (1977) FLC 90-320 at 76,696
“Without in any way fettering discretion it seems to me that I should in this case consider:
(a) the rights of the children (see sec.43);
(b) the delays as to appeal;
(c)whether refusal of a stay renders a successful appeal nugatory;
(d)the hardship to the successful respondent in comparison to the hardship of the appellant;
(e) the grounds of appeal.”
In addition, it seems that the court, in deciding whether or not to grant a stay, should also consider the time frame in which it is expected that the appeal concerned may be heard and whether there has been any delay in applying for such a stay.
A common thread running through the cases, which deal with stay applications involving orders to do with children, is that in determining whether or not to grant a stay, the court must regard the best interests of the children concerned as the paramount consideration. Sanders & Sanders[4] concerned an Aboriginal baby, who was weeks old at the time of judgment. Pursuant to the orders of the trial judge concerned, the child was to move from his mother’s care to the care of his father. The child concerned had lived with his mother since the date of his birth. A stay application was refused by the trial judge concerned. The Full Court overturned this decision. In particular, Evatt C J said as follows:
“In custody cases, whether they arise at first instance or on appeal, in my view it is not desirable to disturb the status quo pending the determination of the matter unless there is something about that status quo which might be harmful to the child. I am not talking of cases where the judge orders a reinstatement of a position that has been disturbed by one of the parties recently. Where a judge makes an order that changes the custody and care of the child, it is particularly important that the appeal be heard as quickly as possible.
In this case there is nothing to suggest that any harm would have resulted to the child by staying with the mother, and it is not suggested that she would not have been able to give it care which it needs. It is a very young child of only three months. Nor is there anything to suggest that the hearing of the appeal would have been in any way prejudiced by leaving the child with its mother.”
[4] See Sanders & Sanders (1976) 26 FLR 474
Clemett & Clemett[5] also concerned a stay application, following proceedings which had resulted in an abrupt change of living arrangements for a child who had lived with his father for what was described as a “considerable period”. The orders sought to be stayed resulted in the child concerned living with the mother. An appeal was lodged expeditiously but an application for a stay of orders was refused by the trial judge concerned. In the case on appeal, Nygh J said as follows:
“In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.”

Discussion

[5] See Clemett & Clemett (1981) FLC 91-013 at 76, 175

a) Best interest considerations

In my view, the factual circumstances which prevail in this case are somewhat different to those which prevailed in both Sanders and Clemett. It was my finding, following the evidence led at hearing in the current case, that both T and S had, up to that stage, been parented in a broadly communal fashion, consistent with their indigenous background. Prior to the hearing, the children had spent extended periods of time in both their extended paternal and extended maternal families’ environments, in a variety of settings, throughout the Top End of the Northern Territory. Indeed, in the period between the interim hearing and the final hearing, orders were made to ensure that the children spent fairly extended periods in both G and K.
Accordingly, in my view, this is not a case where final orders have abruptly changed a long standing arrangement for the care of the children concerned. In addition, at the present time, I have grave concerns that the prevailing arrangements, which have come about because T did not leave K with S, are ones which are likely to be unsatisfactory for both T and S, particularly because it has result in the children being estranged from one another.
Prior to 7 October 2006, both children had lived together for the vast majority of their lives. The parties agree that the children should not be separated from one another. In addition, both parties acknowledge the significance of the other’s family for the children concerned. As things presently stand, T and S are separated from one another. In addition, T currently interacts only with his maternal family and S currently interacts only with her paternal family. This is obviously not the outcome which was envisaged by the orders of 15 September 2006 nor the one sought by either of the parties at trial. On any view, it cannot be described as a long standing arrangement or one which is reflective of any sort of status quo, which existed prior to trial. As such, I do not consider it to be an arrangement which is calculated to be in the best interests of either child concerned.

In such circumstances, it seems to me, that the primacy in importance of the children being protected from frequent changes in their care arrangements, arising as a result of the legal process, is much diminished. Regardless of the success or otherwise of the mother’s appeal, there will be a change of circumstances for either T or S, with all the potential for emotional trauma implicit in such a change. Clearly that was also the position in September of 2006. I am concerned that there is at least the possibility that the mother has, either consciously or unconsciously, maximised the potential trauma for T, for her own vested interests, particularly her desire to frustrate the outcome of the proceedings in September of 2006.
In the original reasons for judgment, I pointed out that this was not a case which provided a ready or obvious solution. The geographical constraints of the case rendered it impossible for the children concerned to spend either equal time or substantial and significant time with both their parents, which is the optimal outcome envisaged by the relevant provisions of the Family Law Act 1975. I acknowledge that, as a result of these factors, the outcome of the case would inevitably cause significant heartache to one of the parties concerned. That was an unavoidable outcome of the parties bringing the case to court in the first place.
In her most recent affidavit, the mother raises issues to do with family violence; the father’s alcohol use; her assertion that she has always been the children’s “primary carer”; and concerns she has about the father’s capacity to properly parent the children. She points to these as being factors which should influence the outcome of her application for a stay of orders. In my view, these issues were all live ones in the hearing before me in August of 2006 and, as such, were considered by me. The mother has not raised any significant new issues at this stage. Accordingly, I do not think, it is appropriate for me to revisit my findings, in the context of the present necessarily truncated proceedings.
The mother places great weight on what she asserts are T’s views about the appropriate outcome in this matter. She describes him as a “strong minded little boy” who is “adamant” that he wishes to remain living with his mother. In the original reasons for judgment, I considered the issue of the children’s views in the indigenous context of the case. I determined that the parties were likely to give more weight to the children’s views than perhaps other non-indigenous parents would do. However, the fact remains that T is only 8 years of age. As such, his views are not likely to be a strongly determinative matter in the case. It is also clear that the issue of what T currently wants is a matter of considerable controversy between the parties.
It was my finding that T had coped well with the transition from his mother’s to his father’s household, during the earlier part of 2006. Certainly, it was Ms Pavlin’s evidence that T was happy and well settled in G, when she visited him there. As previously indicated, I am concerned that the mother may be utilising T for what she perceives to be a tactical advantage in the case. She currently has no proposals as to how T may have some interaction with his father in future. Her response to date has largely been one of passivity.
Up to this stage, the father has been reluctant to seek a recovery order in respect of T. I can understand why this is so. It would be regrettable, particularly because of recent historical events in the Northern Territory, if a police officer was compelled to enter the indigenous community at K and forcibly remove T from his mother. For obvious reasons, the father wishes to avoid this extreme action.
However, in my view, it is equally open to the mother, as to the father, to avoid such a regrettable outcome. To a certain extent, her actions to this point necessarily test the resolve of the father, to see if he is prepared to push for this extreme step. It is her actions, just as much as those of the father, which push the parties to the brink. There is very little evidence to suggest the mother has done anything to facilitate the operation of the orders of 15 September 2006, which she obviously regards as being inappropriate. It is commonly the case that one party feels dissatisfied with the outcome of contested proceedings regarding children and believes that the resulting orders are wrong. However, such sentiments do not absolve the party concerned from an obligation to adhere to the resulting orders.
In Sanders Evatt CJ spoke of the undesirability of status quo arrangements for the care of children being disturbed pending the appeal process. Her Honour specifically stated that these considerations did not apply to cases where trial orders resulted in the reinstatement of a position which had been recently disturbed by one of the parties concerned. In the present case, it seems clear that the mother has been more instrumental than the father in disturbing an arrangement whereby the two children concerned have lived together. The father was successful in his application. The mother was not in hers.
It seems to be a significant part of the mother’s case that the preservation of the present unsatisfactory status quo is likely to be the best outcome for T at this stage. Her position appears to be predicated on two assumptions. Firstly, it will be traumatic for T to move from her care to the father’s. Secondly, she is likely to be successful in her appeal and accordingly T (and so obviously S) will be formally returned to her care in a relatively short period of time. As such, by necessary implication, she asserts it makes no sense for the court not to stay the operation of the orders of 15 September 2006.
In regards to the first assumption, my difficulty is that the mother herself is likely to be able to alleviate any distress T will experience at the transition. She herself can avoid the necessity for a recovery order. In my view she can easily make T available to the father, as the orders of 15 September 2006 require, without prejudice to her appeal. Other than the question of T’s wishes, which I regard as a dubious issue, there is no significant issue relevant to T’s best interests, which precludes the trial orders being follows. At this stage of the proceedings, I have no reason to doubt the validity of my initial decision that the best interests of the children will be served if they live together at G with their paternal family. Certainly I regard the present situation as being unfortunate. I will deal with the second assumption in due course.

b) Delays as to appeal

As previously indicated, it is a significant matter that the Full Court can accommodate this appeal within 5 weeks. I, of course, do not know how long it will take the court to deliver its judgment thereafter. This comparatively short time frame makes it attractive to the court to maintain the existing status quo for the care of T and S, unsatisfactory as that current status quo is. The obvious appeal of such an outcome is that the Full Court will be able to put matters to right, one way or the other, when the appeal is determined. Obviously, whatever is the outcome of the case, either T or S will have to be moved and, as such, there exists the potential for some degree of upheaval for one or other of them. It is an attractive prospect to postpone this likely upheaval until the final outcome of the appeal is known and it is known definitively who of the children must be disturbed.

c) The merits of the appeal

The mother’s appeal will not be a hearing de novo. The Full Court will not embark upon a rehearing of the evidence available. The principles to be applied on appeal are well known.[6] The appellant must demonstrate an error of law to be successful in her appeal. Apart from the notice of appeal itself, I have not been provided with any submissions regarding the likelihood of the mother’s appeal being successful. In such circumstances, it is difficult for me to make an assessment of the merits of the appeal itself.
[6] See House v The King (1936) 55CLR 499 at 504-505 and Gronow & Gronow (1979) FLC 9716 at 78,848-78,849
However it is not my role to evaluate the substantive merits of the appeal in exhaustive detail. That is the Full Court’s job. The mother is entitled to appeal. Her appeal is based on issues of weight and discretion. Given the outcome, it is understandable that the mother would appeal. However it cannot be predicted, with any degree of certainty, that her appeal will be successful or otherwise. Accordingly, the second of the mother’s assumptions, referred to above, cannot necessarily be relied upon as correct.
However, I note that the legislation applicable to the case was recently significantly amended. The legislation is complex. As yet no superior court has had the opportunity to comment in significant detail about the implications of the legislation and provide guidelines for lower courts, such as this one, in its application. In addition, I accept that the case itself created complex factual issues, particularly so far as the indigenous backgrounds of the parties’ is concerned. The mother also asserts that I made an error of fact, which resulted in the miscarriage of my discretion. In all these circumstances, I do not reach the conclusion that the appeal is without merit or has been brought for any improper purpose, such as to bring the mother’s bona fides into question.

d) Hardship

The court is required to consider any hardship that would be suffered by the parties as a result of the grant or refusal of the stay. Other than that the father has been unable to take full advantage of his successful application, resulting from the orders of September of 2006, this does not appear to be a case where considerations of hardship loom large.

e) Delay in applying for the stay

The length of time between the mother’s appeal and her application for stay is unsatisfactory. The mother points to some difficulties with her legal aid funding to explain the delay. Given that her appeal has now been fixed for hearing, the delay has acted to her advantage. As has previously been indicated, there is considerable attraction in the prospect of leaving matters as they are, until the appeal is heard, given that it is now only five weeks away.
The father has not sought to agitate the issue of the mother’s non-compliance with the orders of 15 September 2006 until comparatively recently. I accept that he wished to resolve matters without recourse to further proceedings. In particular, he has not sought to bring an application for a recovery order in respect of T or brought some other application with a view to arrange the transfer of T from the mother’s care to his.
In my view, a contravention application is an inappropriate mechanism for dealing with the issue currently in dispute between the parties. A finding of non-compliance with court orders, without reasonable excuse, against the mother is unlikely to advance matters to any significant degree. However, I can well understand the perplexity of the father and those advising him at the mother’s apparent disdain for the orders of the court, which were made on 15 September 2006 and their reluctance to engage the extreme measure of a recovery order for T, in the face of the mother’s apparent intransigence.

f) Whether the refusal of a stay will render the appeal nugatory

The final matter for the court’s consideration is whether the refusal of a stay will render a successful appeal nugatory or will make it impossible or impracticable to restore the position of the parties prior to the order appealed against, if that appeal is successful. Such considerations more frequently arise in financial matters and those involving terms of imprisonment. This is not the case here. In my view, if the stay is disallowed, it will remain possible for both T and S to live with the mother in future, if her appeal is ultimately successful. She will not be robbed of the potential benefits of a successful appeal if the stay is not granted. Similar considerations apply to the father and his position, vis-à-vis the children, if the appeal is dismissed.

Conclusions

If the mother had applied for a stay in October of 2006, concurrently with the filing of her appeal, clearly the appropriate stage for the filing of such an application, I doubt I would have been disposed to grant it. Given the separation of the children, which occurred around this time, an outcome in which the mother’s influence was likely to have been pivotal, I do not think the granting of a stay at that stage would have been either in the best interests of the children concerned or appropriate.
The question which necessarily arises is should the outcome be different now the appeal date is reasonably proximate? Essentially, should pragmatic concerns predominate and the difficult issue of how T should be transferred from the mother’s to the father’s care be deferred until after the appeal is determined and it becomes clear that the court must necessarily grasp the nettle of the issue. Obviously, if the mother’s appeal is successful, this issue will not arise, T will remain where he is and the question will concern the future transfer of S from G to K.
My concern about adopting the pragmatic approach is that it may amount to a tacit approval of the mother’s self-help and undermine the legitimacy of the court’s process. The orders of 15 September 2006 become essentially meaningless. The father was entitled to attend at K on 7 October 2006 and collect T. The mother had responsibilities to facilitate the operation of the orders made by the court, regardless of her personal disapproval of them.
However, at the end of the day, the behaviour of both parties must be viewed in their cultural context. Neither is a sophisticated person, so far as the legal process is concerned. Both live remotely from their respective legal advisors and from one another. There has been a significant delay in bringing the issue of non-compliance with the orders of 15 September 2006 before the court. Both parties have some level of responsibility for this delay, which has come about as a result of the various factors listed above. The appeal can be heard shortly. With some considerable misgivings, I have decided to adopt the pragmatic response and grant the stay.
Although it is a matter of conjecture and I am reluctant to be unnecessarily presumptuous about it, there appear to be three possible outcomes of the appeal. Firstly, the mother will be successful and both children will live with her in future. Secondly, the appeal is dismissed and the orders of 15 September 2006 are confirmed. Thirdly, the appeal is successful and the matter is directed to be reheard. Given that one of these outcomes will be known comparatively shortly, it seems appropriate that the vexed issue of where T and S are living in future should be left to this stage.
Although the present situation is unsatisfactory, there are no significant welfare considerations which indicate that either child is at any significant risk of suffering harm in the next five weeks or so, if they remain living where they each currently are. This would not be so if they remain separated for any longer period of time. In the more medium term, in my view, it is likely to be potentially deleterious if the siblings grow up in a different cultural milieu from one another. This being so, there appears to be no reason to “rock the boat” so far as their current care arrangements are concerned in the short term of the next month or so.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment. I will direct that a copy be provided to the Full Court of the Family Court of Australia hearing the appeal.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C W

Date: 9 February 2007