MCGREGOR & LOVETT

[2019] FamCA 334

FAMILY COURT OF AUSTRALIA

MCGREGOR & LOVETT [2019] FamCA 334

FAMILY LAW – JUDGMENTS – Stay – where the stay application is dismissed - where final parenting orders and judgment was delivered following a defended hearing – where the father filed a Notice of Appeal and the mother filed a Notice of Cross-Appeal against the final parenting orders – where the final orders provided for a change of residence from the mother to the father, for the mother to spend time with the children six days a fortnight and for the father to have sole parental responsibility – where the mother has filed an Application in a Case seeking a stay of the final orders pending the outcome of the appeal – where the father opposes the mother’s application for a stay – where the outcome of a successful stay application would result in the children reverting to live with the mother and spend substantial time with the father – where a successful stay application would mean that the parties would revert back to equal shared parental responsibility – where the evidence in the stay application is indicative that a return to the parents having equal shared parental responsibility would return the children to potential conflict – where the mother did not file a stay application until three months after the delivery of judgment – where three months is a significant period of time and it has enabled the children to accommodate the new arrangements for their care – where the father is entitled to the ‘fruits’ of the judgment – where there is no risk that the appeal would be rendered nugatory if the stay was granted or not granted – where the children are attending school and seeing both of their parents – where it is essential to maintain stability and continuity in the arrangements of the children until the appeal of both parents is heard – where there is a possibility of the mother reverting to questioning the children and being alert to the possibility of sexual abuse as she has in the past – where the matter needs to proceed to appeal under the current arrangements.

Family Law Act 1975 (Cth)

JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Trahn & Long (No. 2) [2008] FamCAFC 194
In the Marriage of Clemett [1981] FLC 91-013
In the Marriage of Carlin (1977) 29 FLR 497

APPLICANT: Ms McGregor

RESPONDENT: Mr Lovett

INDEPENDENT CHILDREN’S LAWYER: Joliman Lawyers

FILE NUMBER: AYC 209 of 2015

DATE DELIVERED: 24 May 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 23 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stavris

SOLICITOR FOR THE APPLICANT: Tarella Law

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Rama Myers Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bowman

Orders

1. The Application in a Case (Stay) filed on 7 May 2019 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McGregor & Lovett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: AYC 209 of 2015

Ms McGregor

Applicant

And

Mr Lovett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Application in a Case

Stay of orders pending appeal

1. By an application filed on 7 May 2019 the mother Ms McGregor applies for a stay of all orders made in this Court on 8 February 2019 (“the 2019 orders”).

2. An appeal against those orders was filed by the father Mr Lovett on 5 March 2019.  Subsequently a Cross Appeal was filed by the mother.  More recently an Amended Notice of Cross Appeal was filed on 5 April 2019.

3. The 2019 orders relate to final parenting arrangements for two children, girls now aged 10 and eight years.  The orders were made following a trial conducted over eight days across a 12 month period.

4. The 2019 orders provided for a change of residence from the mother to the father commencing forthwith; an order was made for the father to have sole parental responsibility; provision was made for time with the mother for six days each fortnight from after school Thursday to before school the following Wednesday and for holiday time.

5. The application of the mother is that all of the 2019 orders be stayed.  If that application succeeded the parties would revert to equal shared parental responsibility with the children living with the mother and spending substantial time with the father.

6. I accept the submission made by counsel for the father that the evidence in support of the application for the stay is indicative that a return to equal shared parental responsibility would be a return to potential conflict in respect of all parenting decisions to be made.  Similar evidence gave rise to the order for the father to have sole parental responsibility.

7. I likewise accept the submission made on behalf of the father about the grounds sought by the mother in her cross-appeal.  In particular, Ground 2 asserts a failure of the Court to find, contrary to the weight of the evidence, that there exists an unacceptable risk that the children would be exposed to sexual abuse, that the children would be exposed to inappropriate sexual videos or television content in the father’s presence and Ground 6 that the Court erred in restraining the mother from discussing with the children past allegations of sexual abuse.

8. By March 2018 the mother had abandoned the orders arising from such allegations and was proposing that the children have substantial and significant time with the father from that time on.  The risk for the children, which is a serious one, is that if the grounds sought accurately reflect the mother’s view then her fears of sexual abuse have been reactivated and her wish to interrogate the children likewise.

Opposition to the stay

1. The father filed a Response to an Application in a Case proposing that the application for the stay be dismissed and that the mother pay the father’s costs.

2. The father asserts that the children have settled well with the increase in time with him, but even more significantly, the conflict has been reduced by his ability to make decisions in accordance with having sole parental responsibility.

3. I accept the truth of his assertions that given that he had been having five nights a fortnight with the children, the increase to eight nights a fortnight is such that a successful cross-appeal by the mother would not render her appeal nugatory.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer (“ICL”) did not have Legal Aid funding to appear in this stay application and advised the Court that there was no funding for the ICL to be a party to the appeal. 

2. On that basis the application of the ICL to withdraw from the proceedings was granted.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The applicant mother

   (a)Application in a Case filed 7/05/2019;

   (b)Affidavit of Ms McGregor filed 7/05/2019;

   (c)Amended Notice of Cross Appeal filed 5/04/2019;

   The respondent father

   (d)Response to an Application in a Case filed 20/05/2019;

   (e)Affidavit of Mr Lovett filed 20/05/2019;

   (f)Affidavit of Ms G [the father’s partner] filed 20/05/2019.

   Other

   (g)Orders and Reasons for Judgment dated 8/02/2019.

The Law

1. The filing of a Notice of Appeal or Cross Appeal does not stay the operation or enforcement of the order appealed from.

2. The principles which govern the granting of a stay involve an exercise of judicial discretion.  The principles generally relevant to the granting of a stay are articulated in the 2009 decisions of Aldridge & Keaton[1] (stay appeal) and the 2008 decision Trahn & Long[2] (no 2) and others.  The decisions represent a drawing together of considerations which have emerged from decisions of the Full Court commencing with Carlin & Carlin[3] in 1977 and Clemett & Clemett[4] in 1981.

   [1]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

   [2]Trahn & Long (No. 2) [2008] FamCAFC 194

   [3]In the Marriage of Carlin (1977) 29 FLR 497

   [4]In the Marriage of Clemett [1981] FLC 91-013

3. Amendments to the Family Law Act in 1995 and subsequent amendments affected the paramountcy principle with respect to the granting of a stay in children’s matters. The order granting a stay is not a parenting order so the requirement that a child’s interest be the paramount consideration does not apply. However that does not detract from the special consideration which has been relevant to stays in children’s matters from the outset of decision making in this Court.

4. The principle is captured in the decision of the High Court in JRN & KEN v IEG & BLG[5] where his Honour Justice Kirby in his Honour’s discussion of the circumstances when there could be, and should be, departure from the principles which govern the determination of stays, spoke of deviation from the usual rules in certain circumstances and gave as examples:

   1.The operation of the criminal law;

   2.With regards to laws designed to protect the public; and

   3.In the opinion of his Honour “cases which affect significantly third parties who are not parties before the Court and in particular, children, whose welfare must always be in the mind of the Court in making an order affecting their interests.”

   [5]JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

5. There are no mandatory considerations in a stay but there are conventional considerations arising from authority as outlined above.  They are as follows, and several of those factors apply here:

a) The onus to establish a proper basis for a stay is on the applicant without the necessity for the applicant to demonstrate any special or exceptional circumstances

1. In this case the application for a stay was made three months after orders were made. Rule 22.11 of the Family Law Rules 2004 says this:

   (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 leave to appeal against an order, any party [Court’s emphasis] may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

2. I accept what counsel for the mother submitted that there had been a change of counsel with the attendant difficulties of the mother living in D Town and her counsel being in Melbourne but focusing on the needs of the children there had been three months under the new arrangements, with particular reference to decisions having been made about medical practitioners, dental practitioners and optical practitioners for the children and the school advised of the new orders.

3. The children are old enough to be well aware of the change.  The mother could have applied for a stay without the necessity of bringing her own cross appeal but did not.  Three months is a significant period which has allowed the children to accommodate the new arrangements for their care.

b) A person who has obtained a judgment is entitled to the benefits, sometimes referred to as “the fruits”, of that judgment

1. That is the case here. 

2. The father did not lightly change his application to residence and although there is provision for substantial and significant time for the children with the mother, the thrust of the orders is that the father has authority to make decisions for the children as well as spending a greater amount of time with them.

c) Whether there is a risk that an appeal could be rendered nugatory if a stay was granted

1. I do not consider that there is such a risk here in the event that the father’s appeal was successful.  It would lead to a re-trial where the indications are that the father would press for the children to spend less time with their mother than has been ordered.

1. In the event that a stay was granted and the mother was successful, she too presses for a new trial and likely, given the grounds of appeal, that the children spend considerably less time with the father than they had been even prior to these orders being made.

d) Desirability of limiting the frequency of any change in the child’s living arrangements

1. This is particularly relevant here.

2. Trial judges are encouraged to maintain stability of arrangements for children if at all possible.  Although there is complaint by each party about the conduct of the other in terms of decision making, the children are attending school and seeing each of their parents. 

3. Continuity is a benefit until the appeal of each parent can be heard.

e) Period of time in which the appeal can be heard

1. It seems likely given what the legal representatives for the parties were able to advise that these appeals may be heard as early as September 2019, at the latest November.

f) Hardship resulting from a stay being granted or refused should be considered

1. In the event that a stay was granted and the children returned to the care of their mother given her concern, and the parties returned to equal shared parental responsibility, given the fractious level of complaint about decision making in the affidavit material hardship would be inflicted on the children if that change back took place only to be restored as an outcome of the decision of the Full Court.

2. The least amount of change for the children before the appeals, the more stable their situation will be.

Conclusion

1. I conclude for these reasons that the factors involving disruption for the children, the loss by the father of the benefit of the judgment, the best interests of the children and the possibility of the mother reverting to questioning the children and being alert to the possibility of sexual abuse as she did in the past, falls clearly in favour of the stay not being granted and the matter proceeding to appeal under the current arrangements.

2. Accordingly, the application for a stay is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 May 2019.

Associate: 

Date:  24 May 2019