Mottola and Zangari

[2010] FamCA 462

FAMILY COURT OF AUSTRALIA

MOTTOLA & ZANGARI [2010] FamCA 462

FAMILY LAW – ORDERS – Stay pending appeal – Directions to implement orders of trial judge

Clement (1981) FLC 91-013
CSN v JBN (1998) FLC 92-833
JRN v IEG (1998) 71 ALJR 1329
Kwon & Lee (2006) FLC 93-287
Penfold & Penfold (1980) 144 CLR 311

Family Law Act 1975 (Cth)
Family Law Rules 2004

APPLICANT: Ms Mottola

RESPONDENT: Mr Zangari

INDEPENDENT CHILDREN’S LAWYER: Susan Davitt

FILE NUMBER: PAC 4157 of 2007

DATE DELIVERED: 3 June 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 3 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Picker

SOLICITOR FOR THE RESPONDENT: Milena Mijatovich

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Davitt

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That the application for stay of Orders of Justice Flohm made 29 April 2010 be and is hereby refused.

2. That order (5) of Orders made 29 April 2010 be varied to provide that commencing 4.30pm on Friday, 4 June 2010 the child S shall live with the father who is to have sole parental responsibility.

3. That order (10) of Orders made 29 April 2010 be varied to provide that the mother is to cause the child S to meet with the Independent Children’s Lawyer at the offices of Legal Aid NSW at 4pm on Friday, 4 June 2010 and for the purpose of having the Independent Children’s Lawyer explain the meaning and effect of these Orders.

4. That orders be made in accordance with paragraphs (b) and (c) of the document being Minute of Order proposed by the Independent Children’s Lawyer, herein set out as follows:

   (1)That the mother is to cause E to meet with the Independent Children’s Lawyer at Legal Aid at 5pm on Friday, 4 June 2010 and for this purpose the mother is to bring E to the office of Legal Aid for the purpose of the Independent Children’s Lawyer explaining these Orders to the children.

   (2)That for the purpose of S commencing to live with the father, the father is to collect S from the mother at Legal Aid at 4.30pm on Friday, 4 June 2010 and the father is to attend alone at Legal Aid to collect S from the mother. 

5. That by consent, orders be made in accordance with the document handed to the Court this day and signed by all parties, herein set out as follows:

   (1)That for the purpose of S spending time with the mother that commences at the conclusion of school and ends at the beginning of school, then the mother shall collect the child from his school at the beginning of her time and return the child to his school at the end of her time.

   (2)That for the purpose of all other time the mother spends with S the mother shall collect S from the home of the paternal grandmother at the beginning of her time and the father shall collect S from the home of the paternal grandmother at the end of her time.

6. That order (6)(a) of Orders made 29 April 2010 be amended to read “commencing Saturday, 31 July 2010 and for a period of three months thereafter each alternate Saturday” which shall have the subsequent effect of order (6)(b) commencing at the expiration of that time.

7. That the father’s application for costs be and is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4157 of 2007

MS MOTTOLA

Applicant Mother

And

MR ZANGARI

Respondent Father

REASONS FOR JUDGMENT

Background

1. The application before the court is for a stay of orders, pending an appeal to the Full Court of the Family Court.  The orders appealed against are those of Flohm J made in this court on 29 April 2010.  On that day, her Honour delivered an oral judgment and gave reasons for the orders that she subsequently made.  The effect of her Honour’s orders was for the mother to have sole responsibility for the child, E and for E to live with her mother and to spend time and communicate with her father, in accordance with her wishes.  The orders concerning E are not the subject of appeal.

2. The orders went on to provide (orders 4 and 5) that the father was to have sole parental responsibility for the child S, born in January 1999; that the child was to live with the father and spend time with the mother, commencing on 31 July 2010, in accordance with order 6, in its subparagraphs, made by her Honour on that day.  Her Honour made order 7, restraining the mother from contacting S for a period of time, from attending at his school, and from allowing E to approach him.

3. Order 8 required the father to arrange for S to attend counselling and to follow advice and recommendations of the counsellor. 

4. By order 9, the mother was ordered to follow the advice and recommendations of the counsellor, including as to S spending time with her, supervision of that time, telephone communication and the mother and E engaging in counselling for the benefit of S.

5. Order 10 provided that the mother was to forthwith make an appointment to cause S and E to meet with the Independent Children’s Lawyer for the purpose of having the Orders explained to them. 

The Parties’ Documents

1. The mother filed a notice of appeal in this matter on 30 April 2010 and subsequently made available to me a notice of appeal in amended form that was dated 11 May 2010.

2. The thrust of the mother’s appeal, as I understand it, is that she seeks to overturn the orders requiring S to live with his father and not spend time with her for a period.  The mother’s position as I understand it is that I should continue the Orders made by her Honour on 3 December 2009 and to which I will make reference later in these reasons for judgment.

3. In addition to the notices of appeal to which I have made reference, the mother filed an application in a case on 4 May 2010.  That application sought that the matter be heard urgently, that it be heard on an exparte basis, and that there be an operational stay of orders 4 - 26 of the Orders made on 29 April 2010 pending determination of the mother’s appeal to the Full Court.  The mother filed in support of that application an affidavit, sworn on 30 April 2010 and filed on 4 May 2010.

4. That affidavit deals, inter alia, with the situation created by interim orders made by the learned trial judge at the conclusion of the hearing in December 2009.  On that occasion, her Honour made orders on an interim basis that provide that the child S was to spend time with his father for periods of time on the weekends of 4 and 5 December 2009; and 11 and 12 December 2009.  As from 18 December 2009, S was to spend time with his father each weekend from Friday at 5pm to Sunday at 6pm. 

5. The mother says in her affidavit that the orders made by her Honour have indeed functioned very well and until the appeal is heard and determined by their Honours of the Full Court, those interim orders should not be interfered with but should remain in force and if needs be, as a term or condition of any stay. 

6. The father, for his part, filed a response to that application in a case in which he sought its dismissal, that is, that the application for stay be dismissed.  He filed in Court an affidavit sworn on 12 May 2010.  In that affidavit he joined issue with a large number of matters that the wife deposed to in her affidavit.

The Hearing Before Me

1. When the matter first came before me on 10 May 2010, there was some confusion and doubt as to what documents had been served and made available to the father and the Independent Children’s Lawyer and what notification of the listing of the matter had been given by the solicitors then acting for the mother. 

2. Accordingly, the matter was adjourned to 2.15 on Thursday, 13 May 2010 and costs were reserved.  An order was made for the appellant to serve documents in relation to the amended notice of appeal. 

3. The matter came before the court on 13 May 2010 and again was adjourned to 20 May 2010.  The adjournment was on the basis that Mr Jackson of counsel, who then appeared for the appellant mother, suggested that there would be an application for me to disqualify myself.  Further, an application was to be put on for amendments to be made to her Honour’s Orders so that, if the stay were refused, the Orders could be carried into effect in an orderly and proper manner.

4. I indicate here that I have been handed documents by the Independent Children’s Lawyer, which I will refer to shortly, that appear to deal with this situation. 

5. On 20 May 2010 it became clear that the parties were endeavouring to resolve the entirety of the matter and to that end a conference had been arranged for 27 May 2010.  The matter was adjourned to today i.e. 3 June 2010, to enable the conference to take place and thereafter to deal with any matters that were not resolved. 

Discussion

1. I am advised that there has been no agreement reached as to final orders.  However the parties have agreed that if the stay is not granted then there is to be a collection point for the mother to have S spend time with her. 

2. A difficulty today in this matter is that the mother, who was previously represented by solicitor and counsel, is not represented before me today.

3. I was somewhat confused on the first occasion the matter was before me by the position apparently taken by the Independent Children’s Lawyer.  It will be remembered that the orders made by the trial judge were similar in terms to the orders that had been proposed by the Independent Children’s Lawyer.  The Independent Children’s Lawyer on 10 May 2010, however, appeared to support the application for stay.  I now understand that the concern of the Independent Children’s Lawyer was with the period where the mother was not to have time with S following the child going to live with his father.

4. However, today, before me, Ms Davitt the Independent Children’s Lawyer indicates that she does not support the granting of a stay in any fashion.  She says that subject to the orders of 29 April 2010 being clarified so that they are able to be put into effect then she submits that the child should go to live with the father.  A document produced by her to the Court indicates that the child should indeed pass to the father tomorrow (Friday, 4 June 2010). 

5. I believe that there are two issues for determination.  The first is; can the orders of her Honour, so far as is necessary, be clarified. 

6. Her Honour retired from the Bench on the day that the judgment and orders were handed down. I am satisfied that under the rules of Court, her Honour is unavailable.  It is therefore open for me, if I am satisfied that it is appropriate, to make alterations to her Honour’s orders for the purpose of reflecting the intention of those Orders.  The difficulty with the orders - and I say with absolutely no disrespect - is that whilst they make it clear that the father is to have the child S live with him, there could be seen to be some confusion as to how and when that is to be achieved.  Her Honour, at order 5, says the child is to live with the father.  Her Honour does not say when that is to commence or from what date the order is to operate.  Her Honour does say in order 10:

   That the mother is to forthwith make an appointment and cause [S] and [E] to meet with the Independent Children’s Lawyer and that until that occurs, the children -

   and that’s both of them:

   are not to be made aware of the outcome.

7. It would seem to me that on any reading of the orders what is intended is that the children - and particularly S who is the subject of the appeal and thus the stay application - should be taken to the Independent Children’s Lawyer and after explanation, he should go and live with his father.  As I say, a document has been handed to me by the Independent Children’s Lawyer that provides a variation of order 5 to provide that the time the child would commence living with his father is 4.30pm on 4 June 2010.

8. Further, it is proposed that order 10 be varied by providing that the mother is to make S available to the Independent Children’s Lawyer at 4pm tomorrow at the office of Legal Aid NSW for the purpose initially of the Independent Children’s Lawyer explaining the orders to S. 

9. I am satisfied that the intention of her Honour’s orders is clear:- that the Independent Children’s Lawyer should explain to S the effect of the Orders and S should then commence to live with his father. 

10. I am satisfied that by making the amendments sought by the Independent Children’s Lawyer, her Honour’s orders are in no way changed or modified as to their substance, but rather procedures are put in place whereby those orders can be carried into effect and implemented.  I will make such orders as are necessary for this purpose.

11. I turn then to the second issue; the principles that would surround the granting of a stay of orders pending appeal to the Full Court.  A case to which I would make reference is Clement[1].  I take these comments to have application:

    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 change should be as limited as possible.  When the appeal appears to be based on substantial grounds and not a mere delaying tactic and if it can be dealt with within 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.

    [1] (1981) FLC 91-013

12. I accept that those comments might seem to favour the mother.  However, it appears to me that in this case, her Honour has made findings that require the child to be removed from the mother because of the inherent dangers to his psychological wellbeing that exist within the mother’s household. 

13. The mother, as I have said, is seriously disadvantaged in that she does not have counsel to speak on her behalf.  It seems to me that the mother’s submission is that the situation that her Honour put in place as an interim arrangement in December 2009 is working well and should continue until the appeal is determined.  This assertion is perhaps something that should have been brought to her Honour’s attention before her Honour delivered judgment and made final orders. 

14. I turn to the reported decision of CSN v JBN[2].  In that case their Honours dealt with a matter where a stay had not been granted.  Their Honours examined the matters raised in Clement (supra) and eventually ordered that a stay should not now be granted in a situation where it had not been granted initially.  Their Honours made this order notwithstanding the view that the learned trial judge was in error in not granting the stay initially.  Their Honours made reference to the evidence indicating that the child was being adequately cared for in the household from which the orders removed her.  That is not the case here.  Her Honour has found that it is necessary in the child’s best interests that there be a change in the child’s living arrangements and that he go to live with his father.

    [2] (1998) FLC 92-833

15. The best interests of the child are not the paramount consideration in determining a stay application (see JRN v IEG[3] and Kwon & Lee[4]).  However in this case I am satisfied, having regard to such matters in her Honour’s judgment as I am able to discern, and accepting that her Honour’s judgment has not been settled or made available to the parties, it is clear that her Honour believed that it was imperative that the child’s residence be changed.  That, to my mind, is significant if not determinative.  To grant a stay in these circumstances would be to leave the child in a household that the trial judge considered highly unsuitable. 

    [3] (1998) 72 ALJR 1329

    [4] (2006) FLC 93-287

16. Notwithstanding what I am told by the mother as to the way in which time between father and son has worked since her Honour put interim orders into place, and in the absence of being taken - again I acknowledge the difficulty in which the mother finds herself today without representation - to any error in her Honour’s judgment that would excite the attention of the Full Court, I am of the view that a stay should not be granted.  That refusal of course in no way interferes with the mother’s appeal.  Indeed the mother is entitled to go to the Appeal Court in respect of my refusal to grant her a stay.

Costs

1. Having granted the stay, an application has been made by the father for his costs.  As I have said, the application for stay has taken an unusual course before me.  There have been a number of adjournments caused at various times by legal representatives wanting to file either amended documents, or having to file amended documents because original documents were inadequate.

2. The usual situation in this Court pursuant to s 117(1) of the Family Law Act is that each party pay his/her own costs.  Section 117 (2) however provides that an order can be made for costs if the Court considers it appropriate.  Penfold’s Case[5] makes it clear that if there are circumstances that justify doing so, the Court may make an order for costs.  The circumstances do not have to be special or extraordinary however they must justify the making of an order.  In arriving at whether or not a costs order is appropriate I must have regard to the matters set out in s 117(2)(a).  I am not aware of the parties’ respective financial positions. 

   [5] (1980) 144 CLR 311

3. I am told that the father however is in receipt of Legal Aid and that at the time of hearing the mother has no grant of Aid.

4. The father it would seem would not suffer any direct impost for costs.  I understand the requirement for an application to be made on behalf of a legally funded person.

5. The conduct of the parties to the proceedings before me has been fairly equally balanced.  Each of them has at various times sought to have the matter adjourned because they were not ready to proceed.

6. Proceedings in this case were not necessitated by the failure by either party to comply with previous orders.

7. The aspect that may be seen to be of assistance to the father is that the mother has been wholly unsuccessful in her attempt to obtain a stay of the orders of the trial judge.

8. This is not a case where an offer in writing has been brought to my attention

9. These are the matters to which I am required to have regard.  In all the circumstances of this case, I am satisfied that it is not appropriate to depart from the usual situation and make an order for costs.  Accordingly, I dismiss the application for costs made by the father.     

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  8 June 2010