Matthews and Bender (No 3) - [2013] FamCA 828

FAMILY COURT OF AUSTRALIA

MATTHEWS & BENDER (NO. 3)

[2013] FamCA 828

FAMILY LAW – CHILDREN – Stay application pending appeal – where it was ordered that the child live with the father – where the mother seeks to return to previous orders – whether granting a stay would render the appeal nugatory – child’s best interests

Family Law Act 1975 (Cth)

APPLICANT:

Ms Bender

RESPONDENT:

Mr Matthews

INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates Pty Ltd

FILE NUMBER:

MLC

3524

2008

DATE DELIVERED:

25 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

18 & 24 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Fisken

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates Pty Ltd

ORDERS

IT IS ORDERED THAT

The wife’s Application in a Case filed 15 October 2013 seeking a stay of the orders made 27 September 2013 is dismissed.
Any party seeking costs shall file and serve written submissions within 28 days of the date of this order, any reply thereto be filed and served within a further 14 days, and any additional submissions in answer be filed and served within a further 7 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Bender has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3524 of 2008

Ms Bender

Applicant

And

Mr Matthews

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 27 September 2013 I delivered judgment and made parenting orders following proceedings before me between 15 and 19 July 2013 inclusive and on 9 and 12 August 2013. The orders I made included orders that the father have sole parental responsibility for the child of the marriage, who is now eight years of age, that the child live with the father, that the mother’s time with the child be reserved and that the father have liberty to remove the child from her current school and enrol her in another school of his choosing. I made interim orders that the mother be restrained from attending at the child’s current school or any school in which the father may enrol her save with the written consent of the father or by Court order, that an updated report be prepared by the Family Consultant not later than four months from the date of my orders, and that the matter be listed for mention before me on 11 January 2014.
On 11 October 2013 the mother filed a Notice of Appeal and on 15 October 2013 she filed an Application in a Case seeking a stay of my orders pending the determination of her appeal. The mother’s application for a stay was first listed for hearing before me on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Matthews and Bender (No 3)

Details

AGLC: Matthews and Bender (No 3) [2013] FamCA 828
Case: [2013] FamCA 828
Decision Date

CaseChat Overview and Summary

In *Matthews & Bender (No. 3)* [2013] FamCA 828, the Family Court of Australia considered an application by Ms Bender (the mother) for a stay of orders made on 27 September 2013, pending the determination of her appeal. The previous orders had granted the father, Mr Matthews, sole parental responsibility for the child, ordered that the child live with the father, and permitted the father to change the child's school. The mother sought to return to previous orders where the child lived with her. The Independent Children's Lawyer opposed the stay application.

The primary legal issue before the Court was whether to grant a stay of the parenting orders, specifically concerning the child's residence and schooling, pending the mother's appeal. This required the Court to consider the principles governing stay applications, including the onus on the applicant, the entitlement of a successful litigant to the benefit of their judgment, the potential for an appeal to be rendered nugatory, the bona fides of the applicant, and crucially, the best interests of the child. The Court also had to assess the strength of the proposed appeal and the desirability of limiting changes to the child's living arrangements.

Justice Macmillan applied the well-settled principles for granting a stay, referencing cases such as *Trahn & Long (No 2)* and *Friscioni & Friscioni*. The Court noted that while the mother's appeal was bona fide and had some arguable merit, its grounds were considered relatively weak, particularly concerning the judge's findings of fact and the weight given to evidence. The Court found that the appeal was unlikely to succeed and that the risk of the appeal being rendered nugatory was not a substantial factor in this case. The Court placed significant emphasis on the child's best interests, considering the potential disruption of returning the child to the mother's care, the mother's past behaviour and lack of insight into her impact on the child, and the child's positive adjustment to living with the father and her apparent excitement about changing schools.

The application for a stay was dismissed. The Court concluded that granting a stay would be disruptive and potentially detrimental to the child's welfare, outweighing the mother's grounds of appeal and the desirability of limiting changes to the child's living arrangements. The Court noted that while the appeal might be heard in March 2014, the child would have been living with the father for many months by then, and a successful appeal would necessitate further significant change. The Court also addressed the specific request to stay the order permitting the change of school, finding that the child's positive engagement with the proposed new school and the feedback from the child psychologist supported the father's position against a stay.

Orders