Mitty and Mitty (Stay)

[2010] FamCA 1000

FAMILY COURT OF AUSTRALIA

MITTY & MITTY (STAY) [2010] FamCA 1000

FAMILY LAW – CHILDREN – Stay application

Family Law Act 1975 (Cth)

Clement & Clement (1981) FLC 91-013
EJK & TSL (No. 4) [2006] FamCA 1022

APPLICANT: Mr Mitty

RESPONDENT: Ms Mitty

FILE NUMBER: SYC 8326 of 2007

DATE DELIVERED: 28 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 28 October 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Campton

Orders

1. The father’s application for stay filed 27 August 2010 is refused.

IT IS NOTED that publication of this judgment under the pseudonym Mitty & Mitty (Stay) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8326 of 2007

MR MITTY

Applicant

and

MS MITTY

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Mitty, the father of three children:  H, L and A.  The father has applied by Application in a Case filed on 27 August 2010, for a stay of final orders I made on 30 July 2010.  The order sought is stated as follows:

   I am seeking a stay of the orders of Le Poer Trench J, dated 30 July 2010.

2. The orders of 30 July 2010 principally provided for the children to live with their mother and permitted the mother to relocate the children’s residence to Queensland.  There were provisions then made for the father to spend time with the children in a supervised capacity.  It is common ground that the mother has moved to Queensland and did so shortly after the orders were made.  It is clear from the father’s argument that he would seek that the mother be required to return to live in Sydney pending the hearing of the father’s appeal.  The father has lodged an appeal against the orders of 30 July 2010.  The grounds of appeal have been included in an affidavit filed by the father to support his application for the stay of the orders.

3. It was a fact accepted in the trial by me that the mother’s accommodation in Sydney was rented accommodation where the termination of the tenancy was imminent.  If the mother and children were to return to Sydney then new accommodation would need to be sourced.  It is probable that whatever commitment the mother now has in relation to any lease arrangement in Queensland would need to be breached and/or concluded if she moved back to Sydney. The evidence in the trial was to the effect that the mother and children were principally being supported by the mother’s parents.  Neither party had any savings or income from employment.

4. The mother’s Counsel in written submissions set out reference to decided cases dealing with the manner in which the Court should hear and determine a stay application.  Inter alia he referred to the decision of Clement & Clement (1981) FLC 91-013. The principles which arise from that case have been adopted by the Full Court in cases such as EJK & TSL (No. 4) [2006] FamCA 1022 The principal part of the decision in Clement & Clement, which is recited in the later Full Court cases, is as follows:

   In determining whether a stay should be granted, the welfare of the child is the paramount consideration.  It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible.  If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with in a reasonable time, and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.

5. Looking to those matters then, the father says that the welfare of the children would be enhanced were they to be located in Sydney and he would be able to exercise his time with them as he was prior to their relocation and the determination made by the orders of 30 July 2010.  Prior to that time, the father was visiting with the children at a supervised contact service in Sydney.

6. In my view, the return of the children to Sydney would have a particularly adverse impact upon the children’s welfare.  A new residence would have to be obtained and there would be no guarantee that could be located in an area where they could return to their former schools (I must assume that they are now attending new schools and have settled into their new surroundings). 

7. Three months have now transpired since the orders were made. The Independent Children’s Lawyer opposes the stay.  I can rely on the Independent Children's Lawyer being aware of the children’s current circumstances, and having taken those into account in opposing the application.

8. The stay would be likely to significantly, adversely impact upon the mother, the children’s principal caregiver. She has no income. She would have to ask her parents to fund the return. They may refuse to do so. She would be very distressed by having to move.

9. The grounds of appeal are unusual in wording.  However, the Court needs to understand they were composed by the father who is not legally qualified.  It is difficult for me to assess the prospects of success of the appeal.  However, I would not conclude, on the evidence in this case, that the father’s appeal was without merit. An inquiry by me, through the Court, indicates that the appeal is not likely to be heard until the second half of 2011.  I do have some concerns, however, that the appeal may be delayed because the father has told me he cannot afford the $15,000 cost of transcript required to prepare the appeal books.

10. Weighing up all those matters I consider the stay should be refused.  The predominant reason is the welfare of the children. I consider the children’s welfare is likely to be injured to a greater degree by requiring the mother to return them to Sydney, at this time, as a result of the granting of a stay rather than the refusing of the stay and then their facing the prospect of a successful appeal by the father and the possibility of an order for their return to Sydney at this time. In those circumstances I refuse the stay.

11. The order of the Court will be that the father’s application for stay filed 27 August 2010 is refused.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 28 October 2010.

Associate: 

Date:  10 November 2010