Meier and Yeddich and Anor - [2014] FamCA 169

FAMILY COURT OF AUSTRALIA

MEIER & YEDDICH AND ANOR

[2014] FamCA 169

FAMILY LAW – PRACTICE AND PROCEDURE – Applications for stay of Orders pending determination of an appeal and cross-appeal – Principles in respect of stays considered – Bona fides of the mother and the Independent Children’s Lawyer – Balancing parties’ competing rights – Preliminary assessment of the strengths of the appeals – Effect of changing the child’s living arrangements pending determination of the appeal – Best interests of the child

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 106
Cape & Cape [2013] FamCAFC 114
Clemett & Clemett (1981) FLC 91-013
CSN & JBN [1998] FamCA 1766
Goode & Goode (2006) FLC 93-286
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT:

Ms Meier

RESPONDENT:

Mr Yeddich

INTERVENER:

Secretary of the Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Ms Youssef

FILE NUMBER:

PAC

2194

2012

DATE DELIVERED:

18 March 2014

PLACE DELIVERED:

18 March 2014

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

18 March 2014

REPRESENTATION

THE APPLICANT:

Self-represented Litigant

SOLICITOR FOR THE RESPONDENT:

Browns The Family Lawyers

COUNSEL FOR THE INTERVENER:

Mr Anderson

SOLICITOR FOR THE INTERVENER:

Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Rosic

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

Orders

The Application in a Case filed by the Independent Children’s Lawyer on 17 March 2014 is dismissed.
The application by the mother in respect of orders 1 and 2 set out in her Application in a Case filed 12 March 2014 is dismissed.
Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice once the appeal has been determined for further trial directions and consideration of the balance of the mother’s Application in a Case filed 12 March 2014.

Notation

The father has made an application for costs in respect of the unsuccessful stay applications heard today and that matter is to be adjourned and to be heard together with the other applications for costs made by the father in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meier & Yeddich and Anor 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 PARRAMATTA

FILE NUMBER: PAC2194 of 2012

Ms Meier

Applicant

And

Mr Yeddich

Respondent

And

Secretary of the Department of Family & Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

In Applications in a Case filed 12 March 2014 and 18 March 2014, the mother and the Independent Children’s Lawyer respectively in parenting proceedings seek that Orders made on 11 March 2014 suspending time and communication with the mother’s 13-year-old son be stayed pending the hearing of an appeal.
The application for stay is supported by the Intervener but opposed by the father.

The background

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.

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Details

Case: [2014] FamCA 169
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Meier (the mother) and Ms Youssef (the Independent Children's Lawyer) sought to stay orders made on 11 March 2014, which suspended the child's time and communication with the mother pending the determination of an appeal. The father, Mr Yeddich, opposed the stay applications, while the Secretary of the Department of Family and Community Services (the Intervener) supported them. The dispute arose from a complex history of parenting proceedings concerning the parties' 13-year-old son, S, who had expressed a strong desire to live with his mother, contrary to existing court orders.

The court was required to determine whether to grant a stay of the orders suspending the child's contact with his mother. This involved considering the principles applicable to stay applications pending appeal, including the onus on the applicant, the entitlement of a party to the benefit of a judgment, the sufficiency of an appeal alone to ground a stay, the bona fides of the applicants, the balancing of competing rights and the balance of convenience, the risk of an appeal being rendered nugatory, a preliminary assessment of the appeal's strength, the desirability of limiting changes to a child's living arrangements, the timeframe for the appeal, and, crucially, the best interests of the child.

The court reasoned that the mother's application for a stay was problematic as she sought orders that were not part of her appeal, including orders for the child to remain in her care and for her outstanding parenting application to be heard urgently. The Independent Children's Lawyer's application was also found to be in reality an application for further parenting orders, rather than a stay of existing orders, particularly concerning the child's residence with the mother, which had been previously dismissed. The court noted that the father, as the party who had obtained the judgment, was entitled to its benefit and to presume its correctness. The court also considered the circumstances surrounding the 11 March 2014 orders, including the consent orders of October 2013, concerns about the mother's compliance with court orders, and the child's history of making complaints described by an expert as exaggerated.

The applications for stay by the mother and the Independent Children's Lawyer were dismissed. The court granted leave for the Independent Children's Lawyer to relist the matter on short notice after the appeal had been determined for further trial directions and consideration of the balance of the mother's application. The father's application for costs in respect of the unsuccessful stay applications was adjourned to be heard with other cost applications.

Orders