Marsden and Winch

[2007] FamCA 53

FAMILY COURT OF AUSTRALIA

MARSDEN & WINCH [2007] FamCA 53

FAMILY LAW - CHILDREN - Stay application seeking to stay orders permitting the father from having contact with the child pending the outcome of the father’s appeal – inability of previous contact supervisors to facilitate further contact granted as a result of a stay application against final orders preventing contact – application for orders providing different supervisor contact  – sufficient evidence given to support such a proposition – application refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Marsden

RESPONDENT: Ms Winch

FILE NUMBER: CAF65 of 2004

DATE DELIVERED: 15 January 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks J

HEARING DATE: 15 January 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Friesen

COUNSEL FOR THE RESPONDENT: Mr Nash

SOLICITOR FOR THE RESPONDENT: Ms Lyndon

Orders

1. That the application of the mother for a stay of Order 3 made by me on 22 November 2006 pending the appeal against that order is dismissed.

2. That the father's application contained in his response filed on 12 January 2007 that the organisations known for shorthand purposes at G, W and CT be substituted for M in the order I made on 22 November 2006 is also dismissed.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAF65 of 2004

Mr Marsden

Applicant

And

Ms Winch

Respondent

REASONS FOR JUDGMENT

1. In this matter the proceedings before the Court today are an application filed by Ms W, to whom I will refer as the mother in these proceedings, seeking in effect a stay of an order made by me on 22 November 2006.

2. The order sought to be stayed provided:

   3.Pending the hearing of the father's appeal (and no longer) the father shall spend time with [S], born [in] March 2002, through and under the supervision of the Canberra Changeover and Contact Centre at [M] for periods of two hours each fortnight in accordance with such arrangements as that centre is able to carry out, and subject to their ability to meet that required, and such that there will be no time spent by [S] with her father during the period 21 December 2006 until 15 January 2007.

3. That order was made as a result of an application previously made by
   Mr M, to whom I shall refer as the father in these proceedings, following a reserved judgment delivered by me in which I effectively eliminated all form of physical contact between S and her father.

4. The application that gave rise to the order that I have quoted was filed by
   the father on 30 October 2006 and sought that orders that had been made by me on 4 August 2006 be stayed pending the hearing of the father’s appeal.

5. There was then alternatively presented an application that:

   The father shall spend time with the child, [S] born [in] March 2002 through and under the supervision of the Canberra Changeover and Contact Centre at [M] for periods of two hours each fortnight

   and various other orders that were sought.

6. In effect, therefore, the order that was made by me on 22 November 2006 was in large measure and with very little difference the order sought by the father in his application.

7. In the course of my judgment about that application, I pointed out that (substantially speaking) there was no basis for an application for a stay of that order because to do so would not have reinstated contact, in my opinion, as I expressed in my reasons for judgment on 22 November 2006.

8. The interim order that had previously existed pending the final orders made on 4 August 2006, is set out somewhat inelegantly and not very clearly in paragraph 14 of my judgment on the interlocutory matter.  However, I indicated in my judgment and on the day that I would regard the father’s application as in effect an interlocutory application that S spend time with him pending the determination of the appeal.

9. I then went on to consider that application and pointed out that in the course of my substantial judgment in August 2006 following the hearing of children’s matters, I had indicated that in my opinion it was not in S's best interest that she should spend time physically with her father, and I will not repeat the reasons that are set out at some length in the judgment for that determination.  That of course is a matter now of appeal, and I am told that the appeal will come on for directions possibly later this month.

10. I will not canvass the arguments advanced by each counsel in this matter, particularly on the basis of what would constitute the best interests of S in the way in which each counsel has approached the matter.

11. Under the terms of the legislation that I am obliged to deal with, I have to consider in relation to any parenting order the question of whether in the circumstances it would be appropriate for there to be an order for joint shared parental responsibility.  In this matter it was not urged on me by either parent that this was an appropriate step I should take, and it is inappropriate in my opinion that I should do so.

12. This is the case even if I were not to be obliged to consider the two matters that are regarded as primary considerations following from such a determination.  In my opinion the reasons I indicated in my judgment in November 2006, the time that S might spend with her father would not present any risk of physical harm to her.  And for the reasons that I have expressed to counsel today, I am unsatisfied that seeing her father would provide S with any psychological stress, or alternatively, that failing to see her father would provide her with any psychological or emotional distress.

13. I have also, and I mention to ensure that it is seen that I have considered the matter, taken the view that it would not be appropriate that S should spend equal time with each of her parents.  It seems to me that it is implicit in my original judgment, implicit in the application itself by the father, and implicit in the mother's approach to the matter, that this is not a factor that either party is urging upon me as being appropriate for my determination.

14. In relation to the matters set out under s 60CC of the Family Law Act 1975, I point out that most of the matters have been canvassed in the previous judgments, and I do not propose to repeat the reasons that I have advanced previously. I accept without equivocation that my determination must be made in the best interests of S, and it would be inappropriate for me to take any other view.

15. What is difficult is the question of what in the circumstances would constitute the best interests of S.  In this regard the present application before me by Mr Nash on behalf of his client is that there is no evidence that would establish that the proposed contact between S and her father pending the appeal would be in her interests, that the status quo, or the situation substantially applying prior to the application of the order that I had previously made in November was one where there was no contact, and hence there was no basis for a continuation of an arrangement of contact pending a final hearing of the appeal.

16. He urged on me that there was uncontradicted evidence that the time that S spent with her father would have an adverse impact upon the mother's psychological and possibly her physical well-being.  He asks me to infer that that would in turn have an effect on S, even if there were no direct effect on S herself.

17. I am not sure that I can draw a secondary inference, but certainly it is reasonable for me to accept in the limited circumstances of an application for a stay, the proposition that I should take account of the distress that would be occasioned to the primary carer for S as a factor that may and possibly would, and reasonably could, impact upon S's best interests and well-being.

18. It was urged upon me also, although this relates not to the question of S's best interests but the question of the stay itself, that the appeal that the mother had made against my order permitting some formal time for S to spend with her father pending the appeal was more likely than not to succeed, and that there was a strong case on the merits for the success of the appeal.  Again, this was one of those difficult matters that a trial Judge considering a stay has to determine in that it in essence asks him to accept the fact that what he had said previously was his view is likely to be wrong when it is considered by other Judges.  That may or may not be the case, and I give no particular weight to the question of whether or not the appeal in this matter is likely to succeed.

19. It was then urged upon me that there was no evidence at the trial itself that the failure of S to spend time with her father would cause distress to S, and I was referred to paragraph 39 of my original judgment.

20. It was finally suggested that my conclusion in the last few paragraphs of my judgment in November 2006 was contradictory of the conclusions I had reached previously.  I am not sure that this is the case - as I have said, it is difficult sometimes to observe in one's own judgments the contradictions that others see in them.  In my opinion the penultimate and ultimate paragraphs of my judgment were based on the proposition that while I could not change my opinion as originally determined in relation to long-term benefit of contact, I was nevertheless impressed with the proposition that, pending the appeal at least, the previously existing arrangements about the time that S would spend with her father should persist, on the basis of essentially the continuation of what would then have been seen as a status quo.

21. I notice that in these proceedings Mr Nash has raised the proposition that the order I made did not continue what was then the situation pertaining between the father and S.  I think it is fair to say that that is true, however, the order I did make in November restored if perhaps not continued the arrangements about the time that S would spend with her father pending a determination as to whether my determination that S should not spend any time her father is determined by the Full Court, or as Mr Friesen points out, if they decide in the father’s favour, by a Judge at first instance after a further hearing.

22. I am not persuaded at this point that the continuation of the order about contact through M would in itself be as Mr Nash urged upon me, contradictory of the findings that I have made in either of the two preceding Judgments, but I accept that that is a possible construction of the words that I have used.

23. If I then were broadly speaking to consider the present arrangement, I am left with this; I indicated earlier there are proceedings before me relating to the stay, there are also proceedings before me instituted by the father's response which deal with the question of there being an alternative venue for the time that S would spend with her father.  This is based upon some fairly inadequate evidence about what arrangements or what facilities might be available for S at M.  In this regard there is some contradiction between some of the material contained in the affidavit of the father, filed in this Court on 12 January 2007, and the letter from M which became exhibit F1 in these proceedings.

24. The letter from M indicated they had no present capability of fulfilling the terms of the order or facilitating the time that S would spend with her father, but it did not preclude in its terms such a possibility for the future.

25. The order I made, I indicated previously, mirrored substantially the terms of the order sought by the father in his application filed on 30 October 2006.  To the extent that it differed, it was in these terms.  My order provided that it was to be carried out subject to the Canberra Changeover and Contact Centre at M's ability to meet that requirement, and such that there be no time spent by S with her father during the period from 21 December 2006 until 15 January 2007.  The exempted time related to some arrangements that the mother had previously made about that period with S.

26. It seems clear from exhibit F1 that M are not presently able to comply with the terms of that order, and moreover if I were to accept the evidence set out in an acceptable form in the father’s affidavit, it would seem that they are unlikely in the future to be willing to carry out the terms of the supervised arrangements for time between S and her father, if in fact the mother is not willing for that arrangement to continue.

27. I have no evidence about that matter, other than this statement in the affidavit.  It would be inappropriate for the mother, even if she disagreed with the proposition formally to sabotage the order by expressing a contrary opinion to M.  But whether that is the case or not, I have no evidence upon which I can make such a finding.

28. I am left with the proposition at present that M says they cannot comply with the terms of the order.  Hence, the father brings before the Court an application to vary the terms of the order to substitute other organisations in the alternative to M for the purposes of the supervision of the time that he spends with S pending the hearing and determination of his appeal.  He sets out that this could possibly be carried out by G, by W, or by CT.

29. The material that he provides in relation to their ability to carry out the orders is limited and inadequate.  The understanding of each of those organisations about the background, the orders that were made, and the circumstances in which their supervision might be required is also inadequate or non-existent, and I could not on the material before me come to a conclusion, even if I were to consider it to be desirable, that there should be an order for substitution of one of those organisations for M.

30. This gives rise somewhat late in the day from Mr Friesen for an application that the matter be stood over, presumably to enable further evidence from those organisations to be put in place.  I am conscious of the fact that this is the second interlocutory application made pending directions being given for an appeal against an order that I made in August last year.  I am conscious also of the fact that as is clear from the father’s affidavit he has had sufficient time in which he could have put the evidence properly before this Court if he were minded to do so.

31. In my opinion his failure to do that on this occasion means that I should reject the application for the adjournment, and I do so because it seems to me that there must be an end to some of this litigation between the parties, and this is an appropriate way in which I should express that view.

32. This means that in my opinion starting at the end, the father’s application for a substitution of another organisation for M ought properly to be dismissed, and I do so dismiss it.  Second, that so far as the question of whether the existing order should continue or not, I am left with the proposition advanced by Mr Nash that a stay would be in the best interests S, primarily it seems to me on the basis that the continued arrangements, or any arrangement would cause distress to the mother, and that that would inferentially at least not be in S's best interests.

33. I accept that Mr Nash has expressed and eloquently argued for the fact that the appeal against the previous order ought properly and in due course will he would suggest necessarily succeed however.  It seems to me that while it is appropriate that the merits of an appeal ought properly to be taken into account on a question of a stay, and certainly an appeal totally without merit ought to result in the dismissal of the stay, it really doesn't advance his case very much further to argue that there is merit in the appeal.  I do not regard that as an any way disqualifying basis for the application for the stay.

34. The question of whether as Mr Nash submitted also a denial of the stay would render the appeal nugatory, in my opinion does not hold water.  This is a situation in which there is ambiguous evidence about the effect of a delay in seeing her father will have on S.  I do not doubt that the prospect of S's continuing to see her father may well have a distressing effect on the mother, I have no doubt equally that the effect of not seeing S will have a distressing effect on the father.

35. However, there is no evidence, including the evidence in the father’s affidavit about the short time he did spend with S immediately before Christmas, which would lead me to conclude either that a failure on S’s part to spend time with her father would cause her distress and affect her well being or impinge upon her best interest.  Or that seeing her father would necessarily cause that level of distress or impinge upon her well being.  In such circumstances in my opinion it is not open to me to find that a denial of the stay would necessarily render the appeal nugatory.

36. Consequently taking the matters I have indicated before, it seems to me that it is principally the question of the distress that might be caused to the mother by a continuation of the existing orders that would cause me to grant the stay that I am requested to make.  In my opinion that in itself would not constitute an appropriate basis for the stay, and accordingly in my opinion the application for stay should be refused.

37. That would leave in place the order as it exists on 22 November 2006, and I am conscious of the fact, and I say this in relation to the response and the subsequent application made by the father, that that may well have the effect that notwithstanding that I have denied the stay, that there will be no contact between or no time that S will spend with her father pending the hearing of the appeal.

38. I make no order about costs in relation to either party.

39. This finalises the interlocutory matters between the parties.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

Associate: 

Date:  12 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MARSDEN & WINCH