Miller & Anor and Harvey & Anor
[2016] FamCA 265
•22 April 2016
FAMILY COURT OF AUSTRALIA
| MILLER AND ANOR & HARVEY AND ANOR | [2016] FamCA 265 |
| FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – where the applicant former solicitor for the wife seeks to stay the parties’ final property orders made by consent pending an appeal by the applicant – Discretionary exercise – stay application dismissed. |
| Family Law Act 1975 (Cth), s 90SM Family Law Rules 2004 (Cth), r 22.11 |
| Jackson & Balen [2009] FamCAFC 131 |
| APPLICANT: | Mr Miller & Mr Jeans (trading as Eddy & Miller – Melbourne) |
| FIRST RESPONDENT: | Ms Harvey |
| SECOND RESPONDENT: | Mr Bele |
| FILE NUMBER: | MLC | 10064 | of | 2012 |
| DATE DELIVERED: | 22 April 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 5 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P. Indovino |
| SOLICITOR FOR THE APPLICANT: | In person |
| THE FIRST RESPONDENT: | In person |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms Harris |
| SOLICITOR FOR THE SECOND RESPONDENT: | Lampe Family Lawyers |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Leslie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kenna Teasdale Lawyers |
Orders
That paragraphs 3, 4, 5 and 6 of the Applicant’s Application in a Case filed 9 March 2016 are withdrawn.
That paragraph 2 of the Applicant’s Application in a Case filed 9 March 2016 and amended on 5 April 2016 is dismissed.
That the costs of the application be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller and Anor & Harvey 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 MELBOURNE |
FILE NUMBER: MLC 10064 of 2012
Mr Miller & Mr Jeans (trading as Eddy & Miller – Melbourne)
Applicant
And
| Ms Harvey |
First Respondent
And
| Mr Bele |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is the former solicitor of the first respondent, brings an Application in a Case seeking that final property orders made by consent before me on the 3 March 2016 be stayed pending the hearing of an appeal. The final property orders were made pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
The applicant seeks to intervene in the proceedings as a creditor of the first respondent. The final property orders were part of final parenting and property orders made by consent. An Independent Children’s Lawyer represented the interests of the child who is aged 3 years and 8 months. The first and second respondents to the application are the mother and father who were the parties in the parenting and property proceedings listed before me for a pre-trial mention on 3 March 2016. There is no contractual relationship between the applicant and the second respondent father.
The application is opposed by the first and second respondents. The Independent Children’s Lawyer attended in response to the application because the application sought that “the orders made on 3 March 2016 be stayed pending the hearing of the Applicant’s Notice of Appeal”. The applicant amended this application at the hearing to refer to “paragraphs 1, 2, 3 and 4 of the property orders made on 3 March 2016 be stayed pending the hearing of the Applicant’s Notice of Appeal”. The Independent Children’s Lawyer noted that she was concerned to maintain the parenting orders because they were in the best interests of the child but that she did not wish to make any further submissions having regard to the amendment made. The Independent Children’s Lawyer sought that the question of any costs to be paid by the applicant for the attendance of the Independent Children’s Lawyer at the hearing be reserved.
Amongst other things the final parenting orders provide that the mother have sole parental responsibility for the child and that the child live with the mother. Significantly, the orders also permit the mother to relocate the child to Country B in October 2016 and provide for the removal of an Airport Watch List order on 30 September 2016. The orders also provide for the father to complete the child’s passport application and return the completed application to the mother.
The final property orders agreed between the parties provide for the father to pay the mother the sum of $20,000 by way of graduated payments. The father is to make the first payment of $5,000 to the mother within 60 days of the order, which is May 2016. The second payment of $5,000 is to be paid to the mother on or before 15 November 2016. The last payment in the amount of $10,000 is to be paid to the mother on or before 31 January 2017.
The applicant also sought further orders by way of Application in a Case. These were ultimately not pressed and withdrawn because counsel for the applicant conceded that there was no jurisdiction to make those orders.
The Court received information from the Appeals Registrar that an Appeal hearing could be scheduled for July 2016.
The evidence
The applicant relies upon the following documents:
·Application in a Case filed 9 March 2016;
·Affidavit of Ms C filed 9 March 2016;
·Exhibit A – Notice of Appeal;
·Exhibit B – letter dated 15 March 2016 addressed to the applicant from the Regional Appeal Registrar of the Family Court.
The first and second respondents did not file any material in response to the Application.
The first respondent tendered Exhibit 1 which was a complaint form addressed to the Victorian Legal Services Commissioner dated 21 March 2016.
The Independent Children’s Lawyer did not file any material in response to the application.
The hearing was conducted without the benefit of the transcript of the proceedings on 3 March 2016. At the request of the applicant, an order was made on 5 April 2016 for the transcript of the proceedings to be forwarded by the applicant to the parties, the Independent Children’s Lawyer and the Court.
At the conclusion of the hearing the parties were given liberty to apply to make any further submissions after receiving the transcript. There were no further submissions ultimately made.
Circumstances of the hearing on 3 March 2016
The matter was listed before me at 9:30 am on 3 March 2016 as a short mention to confirm that the trial date was required because the trial was listed for 5 days commencing 16 March 2016. A reserve trial was also listed for 16 March 2016.
Both the first respondent and Ms C, who is a legal practitioner employed by the applicant, were late. I was informed by counsel for the second respondent that Ms C was delayed but that her instructions had been withdrawn and that she proposed to attend simply to seek leave to withdraw from the proceedings.
When the first respondent mother arrived she informed the Court that she was attempting to speak with Legal Aid. When Ms C arrived she informed me that she had received instructions to withdraw and that she sought leave to do so. It became apparent that there was a dispute between the first respondent and her solicitor regarding legal fees. The Independent Children’s Lawyer indicated that discussions had been ongoing and that she did not want to compromise them but that the matter should be stood down for further discussions. The matter was stood down for further discussions on the basis that it be interposed later in the day. An unrelated trial was commencing at 10am that day.
At 10am I began the hearing of the unrelated six day trial. That trial continued all day and during the course of the day the parties in this case informed me that they were conducting discussions with the assistance of the Independent Children’s lawyer and duty lawyer.
After the luncheon adjournment I was presented with a Minute of consent orders signed by the parties and advised that the matter had settled in its entirety. Ms C sought to intervene in the proceedings as a creditor of the first respondent mother and discussions ensued about the fact that the parties and Independent Children’s Lawyer were proposing final orders and did not want to return to Court on the trial date.
The transcript will reveal further discussions and exchanges in Court about the fact that there was insufficient notice to the parties, no time to deal with an intervenor application that day and the impact upon the parties of not having final consent orders made which included parenting issues.
Ultimately I declined to receive an application by Ms C to intervene on the spot because I was in no position to deal with it that day having interposed this matter during another trial, and the impact of any delay upon the parties would have been unfair. There was no determination of any application to intervene as it was not filed. The parties and Independent Children’s Lawyer submitted that final orders should be made in the best interests of the child and it was clear that if the orders were not made, amongst other things, the second respondent would be forced to return to Court on a matter of dubious merit unrelated to him.
Applicant’s grounds of appeal
The applicant has appealed the final property orders on the following grounds:
(1)The Court erred as a matter of law in failing to allow the Appellant to become a party to proceedings pursuant to Section 90SM(10) of the Family Law Act1975 in circumstances where the Appellant is a creditor of the First Respondent who may not be able to recover a debt on the making of an order under Section 90SM.
(2)The Court made final consent orders altering the property interests of the First Respondent under Section 90SM which were not just and equitable and the orders did not provide the First Respondent sufficient funds to meet her liabilities, including the debt of the Appellant.
(3)These grounds of appeal have been drafted without the transcript of the proceedings. Upon receiving the transcript it may be necessary to amend these grounds.
The evidence of the applicant
Ms C deposes that she is a legal practitioner employed by the applicant solicitors and that she was engaged by the mother for the parenting and property proceedings.
She deposes to the applicant being a creditor who will not be able to recover a debt from the mother due to the final property orders made by this Court on 3 March 2016. She deposes to having prepared for the final hearing “when without warning in the afternoon of 2 March 2016, the first respondent withdrew her instructions to the firm to act on her behalf despite there having been to that date, fruitful negotiations for settlement of all the issues. It seemed the matter was close to being resolved but for one key issue”.
She deposes to the first respondent mother wishing to relocate to Country B to the support of her extended family. She deposes to the first respondent mother deposing to having a history of mental health issues which were exacerbated by having been forced to live in refuge housing since 2012, the ongoing and relentless legal matters including intervention orders against the second respondent, allegations of violence, a watch list order preventing the child of the relationship being removed from the jurisdiction and the requirements of caring for a child with special needs.
She deposes to advising the first respondent via email in the afternoon of 2 March 2016 that as a result of her extremely late withdrawal of instructions, leave of the court would be required for the firm to withdraw. She deposes to further advising the first respondent that she intended to appear in court on 3 March 2016 to seek leave to withdraw and to intervene in the proceedings due to the debt of $59,250.73 owed for outstanding legal fees. She deposes to advising that the firm would seek an injunction that any settlement monies be paid to the firm’s trust account pending further order.
A copy of the email Ms C sent to the first respondent on 2 March 2016 was not annexed to Ms C’s affidavit as she states that parts of the email may be privileged.
She deposes to the first respondent entering into a costs agreement with the firm in or about July 2014 and deposes that the first respondent was sent a monthly bill and statement of account each month advising her of the balance owed by her to the firm for legal fees and disbursements. She deposes that the first respondent was sent a statement of account for $55,335.79 on 19 January 2016 and that a subsequent bill was sent on 26 February 2016 for $59,250.73.
She deposes to the firm at all times acting on the basis of an informal agreement between the first respondent and the firm that they would not seek payment of legal fees and disbursements (including counsel’s fees) until a property settlement between the first and second respondent had been finalised, given the first respondent’s “difficult financial circumstances”.
She deposes to attending court at the mention hearing on 3 March 2016 at 9.45am at which time she advised the Court that the first respondent had withdrawn her instructions and that the firm sought:
13. … (a)Leave to withdraw;
(b) To intervene as of right pursuant to Rule 6.06 of the Family Law Rules as a creditor within the definition of Section 90SM(10) of the Family Law Act 1975 who would not be able to recover a debt if an order was made under Section 90SM.
(c) An injunction to prevent any payment being made to the First Respondent so as not to defeat the debt owed by her to the firm.[1]
[1] Paragraph 13 of the affidavit of Ms C filed 9 March 2016
She deposes to being told by me that there was insufficient time to hear her injunction application that day and that the matter was stood down to enable the first respondent to speak with the duty lawyer about the implications of her submissions and allow the parties an opportunity to have further discussions. She deposes that she had not yet been granted leave to withdraw when the matter was stood down.
She deposes that shortly prior to the lunch adjournment the first and second respondents and the Independent Children’s Lawyer reached agreement on all parenting and financial matters, which included a property adjustment in favour of the first respondent. She states that she had no input into this agreement.
She deposes to preparing a Notice of Intervention by Persons Entitled to Intervene, together with a supporting affidavit. At paragraph 17, she deposes to seeking to file the Notice and supporting affidavit when the matter resumed at 2.15pm but being refused on the basis that “settlement had been reached on all the outstanding issues [and] it was important that final orders be made in line with the minute of consent orders so that the First Respondent could return to Country B and the parties could have closure.” She states that this was “despite the provisions of Rule 6.06 which allow the firm to intervene as a creditor of the First Respondent without permission of the court.”
She deposes that she was granted leave to file a Notice of Withdrawal of Practitioner and that after having her request to file a Notice of Intervention by Persons Entitled to Intervene and supporting affidavit earlier refused, she sought leave to file those documents despite the fact that, in her words at paragraph 18, “leave is not in fact required”. She deposes to being unwell at the time and states that to the best of her recollection she handed up a copy of the Notice of Intervention and supporting affidavit for me to read and believes that I read the documents.
She deposes that given the short time frame between the first respondent withdrawing her instructions on 2 March 2016 and the commencement of the mention at 9.30am on 3 March 2016, she was not able to prepare and file the Notice of Intervention and supporting affidavit prior to the commencement of the mention on 3 March 2016.
She deposes to being unwell on 2 and 3 March 2016 and at the time of preparing and swearing her affidavit on 9 March 2016. She deposes that Mr Patrick Indovino of counsel had been involved in this matter since 2014 but was unable to appear at the mention on 3 March 2016. She deposes that therefore she was “compelled to appear in circumstances where counsel was in fact needed.”[2]
[2] Paragraph 20 of the affidavit of Ms C filed 9 March 2016
She deposes that I made comments from the bench that if she was to file the Notice of Intervention and supporting affidavit and if final orders could not be made that day because the firm was intervening, she would run the risk of a costs order being made against the firm and that I suggested that the first respondent obtain legal advice in relation to what she was proposing. She states at paragraph 21 that she told the Court that she:
… was not seeking to prevent the final orders being made but sought an injunction to restrain any payments being made directly to the First Respondent so as to not prevent recovery of outstanding legal fees until further discussions could be had and that the matter should not be taken out of the lists but listed for another mention the following week.
She states that I declined to do so. She deposes to the first respondent not receiving any advice regarding the proposed settlement but deposes that the first respondent had received previous advice from Ms C and other solicitors.
She deposes that she was shocked to hear in the course of proceedings that the first respondent had settled for a sum equivalent to 8 per cent of the total net asset pool (being $248,000) which she states was substantially lower than the amount that the first respondent was to receive even at the commencement of negotiations when she was acting for the first respondent. She states that the first respondent has settled for an amount which is insufficient to meet her debt to the firm and suggests that the settlement may have been designed to frustrate the first respondent’s ability to repay monies owed to her creditors, including the firm.
She deposed that given the first respondent is self-represented and the final property orders provide for settlement monies to be paid directly to the first respondent, the firm “no longer has any security for payment of outstanding fees and payment is at risk” and she is concerned that the first respondent may depart Australia before the outstanding fees are paid, making recovery impossible.[3]
[3] Paragraphs 28 & 30 of the affidavit of Ms C filed 9 March 2016
She states that given the first respondent resides in refuge accommodation, her address is entirely confidential making it difficult to contact or serve her and this would protract civil proceedings.
She deposes to the first respondent refusing to communicate with the firm since 2 March 2016. She further states that a letter of demand was sent to the first respondent via email on 3 March 2016 and she is concerned that the first respondent will make it impossible for the firm to contact her and will avoid paying the debt owed by her to the firm.
The applicant’s submissions
The applicant referred to the grounds of appeal which were not before the Court. By invitation, the applicant then tendered a copy of the Notice of Appeal (Exhibit A). The applicant noted that the application was being made without the benefit of a transcript.
Counsel for the applicant relied upon a decision of Coleman J in Martin & Martin [2012] FamCA 869 (“Martin’s case”) regarding final property proceedings under section 79 of the Act. In that case, Coleman J refused to make final consent orders for final settlement of property between a husband and wife. Counsel for the applicant submitted that Coleman J granted leave for the solicitors to intervene. The application for property settlement was adjourned to a date to be fixed for a hearing on the merits. Counsel for the applicant submitted that the mirror provisions under section 90SM(10) of the Act should be engaged here to enable the former solicitors for the first respondent to intervene in the proceedings to effectively secure a debt for legal costs which they claim is owed by the first respondent mother.
The first respondent’s submissions
The first respondent mother was self- represented and suffering some distress. I was informed that the mother had received advice from the Suburb E Legal Service before the hearing day, and a lawyer from the Suburb E Legal Service was present at Court earlier in the day assisting the mother, but did not represent her in Court.
The mother opposed the application for a stay and referred to a complaint that she had subsequently lodged against the applicant with the Victorian Legal Services Commissioner. She tendered this complaint (Exhibit 1). The complaint appears to be a complaint about the conduct of the applicant and the legal costs.
The mother did not dispute her liability to pay some amount of costs to the applicant but said that she wanted clarification of how much she owed the applicant. She was concerned about the costs of childcare for this and further hearings together with the prospect of further costs. She stated that she had been engaged with the Family Court system for three years and that ‘she had had enough’ and just wanted everything resolved that day.
The second respondent’s submissions
Counsel for the second respondent argued that the application was premature having regard to the fact that the transcript had not yet been obtained and on the face of the orders made on 3 March 2016 “there is no appellable connection between the applicant and these orders.” Counsel for the second respondent argued that the applicant has no interest in the orders and the orders do not disclose any dismissal of an application for intervention in the property proceedings.
Counsel for the second respondent distinguished Martin’s case on the facts. She referred to paragraph 12 of that judgment as a significant factual matter because the case involved the parties entering into an interim order by consent 12 months prior to the proposed final property settlement of the parties. She submitted that the former solicitors of the wife in that case were involved as a party to the proceedings when the interim consent orders were made. She referred to paragraph 22 of that judgment where Coleman J found that those interim consent orders provided that the wife was obliged to pay legal fees to her former solicitors. She submitted that where the husband and wife, 12 months later sought that the previous orders be discharged, the final orders sought would effectively remove the security for costs which had been made by way of the previous Court order naming the former solicitors. She referred to the distinguishing fact in that case where Coleman J found that those previous interim consent orders provided an obligation on the wife to pay up to $1 million of her interim property settlement to her solicitors.
Counsel for the second respondent submitted that the distinction here is that there is only an allegation of an amount due for legal fees and no itemised bill or costs agreement and it is not clear whether any formal application for leave to intervene in the proceedings was made pursuant to s 90SM(10). She submitted that in Martin’s case the solicitors were already interveners with costs secured.
Relying on the general principles applicable to an application for a stay of orders, counsel for the second respondent questioned the merits of the appeal having regard to the lack of any order dismissing an application by the applicant to intervene and submitted that the onus upon the applicant had not been discharged. Counsel for the second respondent father also relied upon the fact that there is “no proven debt” and a complaint had apparently been lodged by the first respondent mother with the Legal Services Commissioner challenging the applicant’s legal costs. She submitted that the respondents are entitled to the benefit of the judgment. She referred to the impact of the appeal upon the respondents and the significant emotional burden of litigation. Counsel for the second respondent submitted that “there is no evidence of any collusion between the parties to affect a claim that may or may not be proved”. Counsel for the second respondent submitted that the major issues between the respondents in litigation were the parenting issues and that property matters were “litigated late”. She submitted that there is nothing to show that the applicant is entitled to have the property matters between the respondents litigated for the purposes of the applicant’s costs.
Counsel for the second respondent submitted that there was no prejudice to the applicant if the orders were not stayed because it was anticipated that the appeal would be heard in July 2016.
Counsel for the second respondent addressed further arguments towards the other orders sought in the Application in a Case on the basis that there is no jurisdiction to make those orders. As explained previously, the applicant conceded that there is no jurisdiction to make the additional orders sought by the applicant.
At the conclusion of the hearing in response to the mother tendering Exhibit 1, counsel for the applicant stated that the applicant had electronically filed a complaint in the Melbourne Magistrates’ Court against the first respondent seeking payment of legal costs but had not yet received notification that the document had been issued by the Magistrates’ Court.
Upon hearing the information about the complaint lodged by the applicant with the Magistrates’ Court, counsel for the second respondent father submitted that there are no contractual arrangements between the second respondent and the applicant and there are mechanisms which can be pursued by the applicant by way of remedy against the first respondent mother elsewhere. She submitted that the alternative remedy open to the applicant is also relevant in considering whether to grant a stay. She submitted that it would be unfair to resort to this process in the Family Court in circumstances where there was an alternative option for the applicant to pursue and particularly where the alleged debt was not directly relevant to the second respondent father.
Legal principles
The filing of a Notice of Appeal does not stay the operation or enforcement of the order unless otherwise provided by legislative provision. However, under rule 22.11 of the Family Law Rules 2004 (Cth) (“the Rules”), if a party has appealed 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 relates.
The onus to establish a proper basis for the stay of an order is on the applicant for the stay. The making of an order for a stay is wholly discretionary and the circumstances which would justify an order for a stay depend on the circumstances of each case.
The principles applicable to an application for a stay have been referred to in a number of decisions of this Court but, in broad terms, this Court has adopted the position set out in the decision of the High Court of Australia in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681. In the exercise of judicial discretion, matters of relevance include for example, delay, hardship, whether a stay is necessary to preserve the subject matter of the litigation and bona fides.
The Full Court of this Court in Jackson & Balen [2009] FamCAFC 131 at [28] summarised the principles to be applied in hearing a stay application. After referring to authorities in this and other courts, the Full Court held:
… Those authorities stressed the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·a person who has obtained a judgment is entitled to presume that the judgment is correct;
·the mere filing of an appeal is insufficient to grant a stay;
·the application must be bona fides;
·a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if the stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
Conclusion
Given the information that the appeal is likely to be heard in July 2016, delay is not such a significant factor here.
One of the substantial factors is weighing the risk that an appeal may be rendered nugatory if the stay is not granted. The applicant relies upon section 90SM(10) of the Act which provides an entitlement for a creditor of a party to property settlement proceedings after the breakdown of a de facto relationship to become a party to the proceedings “if the creditor may not be able to recover his or her debt if the order were made.” The final property orders provide for the mother to be paid $20,000 by the father. The orders do not provide for any other party to be paid.
The applicant is concerned that the first respondent will leave the jurisdiction but the parenting orders do not permit her to leave the jurisdiction with the child until October 2016, which will be after the hearing of the appeal. The mother has always been the primary carer of the child and the child lives with the mother. There is no evidence to suggest that the mother would leave the jurisdiction without the child. I am conscious that any appeal may not be determined in July 2016 even if it is heard then, but the Full Court will be in a position to consider the necessity of any further orders at the hearing of the appeal in July.
The applicant has already filed proceedings to recover the legal costs from the first respondent mother in the Magistrates’ Court albeit they have not yet been issued due to administrative delay. No doubt when the proceedings have been issued they will be served upon the mother.
It is necessarily a cautious exercise for the Judge whose orders are appealed to assess the prospective merits of the appeal. However, I accept the submission of counsel for the second respondent that the decision of this Court in Martin’s case is distinguishable on the facts.
The parties are entitled to the benefit of the orders to which they consented in circumstances where there is no controversy between them.
In weighing the balance of convenience and the competing rights of the parties, the fairness of the impact upon the child and the parents must be considered. The first respondent did not file any financial material but her Financial Statement prepared by the applicant and filed for the purposes of the trial reveals that she is a person of limited means living in a women’s refuge with no savings. She is in receipt of a Disability Support Pension and Child Support of $200 per week. She has no assets and liabilities estimated at $79,060. Her liabilities include legal fees of $45,000. She also has the care of a child with special needs. As part of the final orders the father has agreed to pay child support for the child upon relocation to Country B.
The applicant has filed proceedings in the Magistrates’ Court to recover legal costs against the first respondent. The applicant has an alternative remedy which has now been invoked.
The first respondent mother has attended this proceeding and there is no indication that she will avoid service in circumstances where she has engaged with the Legal Services Commissioner. The mother cannot leave the jurisdiction with the child until October 2016 under the final parenting orders and it would appear that having regard to the history of the litigation and the child’s special needs the mother is highly unlikely to leave the jurisdiction without the child. It is also unclear whether the mother has the financial capacity to leave the jurisdiction.
In all the circumstances I am not satisfied that the applicant has established a proper basis for a stay and I propose to refuse the application.
Costs
The applicant, respondents and Independent Children’s Lawyer indicated an intention to make an application for costs in respect of this hearing and sought that the costs of this hearing be reserved. Accordingly, the costs of this hearing are reserved.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 22 April 2016.
Associate:
Date: 22 April 2016
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