Naparus and Frankham (No.2)

[2018] FCCA 1952

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAPARUS & FRANKHAM (No.2) [2018] FCCA 1952

Catchwords:
FAMILY LAW – Parenting – appeal – stay of interim orders.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Case cited:
Aldridge & Keaton [2009] FAMCAFC 106

Clemett & Clemett (1981) FLC 91-013

Applicant: MS NAPARUS

Respondent: MR FRANKHAM

File Number: MLC 1462 of 2016

Judgment of: Judge Mercuri

Hearing date: 2 July 2018

Date of last submission: 2 July 2018

Delivered at: Melbourne

Delivered on: 20 July 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the respondent: Mr E Taghdir

Solicitors for the respondent: Nick Graham Legal

Advocate for the independent children’s lawyer: Ms Dosanjh

Solicitors for the independent children’s lawyer: Hartleys Lawyers

ORDERS

1. The application in a case filed on 29 May 2018 be dismissed.

AND THE COURT NOTES THAT:

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Naparus & Frankham (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1462 of 2016

MS NAPARUS

Applicant

And

MR FRANKHAM

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application in a case filed by the applicant mother dated

   
   

   29 May 2018. The applicant mother seeks a stay of interim parenting orders in respect of [X] born 2015 (“the child”) made on 30 April 2018 (“April Interim Orders”).

Background

1. There is some history to these proceedings between the parties. 

2. The parties commenced a relationship in late 2012/early 2013. The mother was initially from Western Australia and she moved to Victoria after meeting the father. 

3. The parties separated in October 2015 and since then, the child has lived with her mother. In her affidavit affirmed 28 November 2017, the mother states that the parties resumed their relationship in early 2017 before final separation on 1 June 2017.[1] The father disputes this.

   [1] Paragraphs 24 and 28 of the affidavit of Ms Naparus filed 29 November 2017.

4. The father initially commenced proceedings in this court seeking parenting orders which resulted in final parenting orders being made by consent on 6 September 2016 (“2016 Orders”). 

5. The 2016 Orders relevantly provided that the parties have equal shared parental responsibility, that the child live with her mother and spend time with her father every four weeks on a Saturday and Sunday from 11 am to 5 pm and to communicate by Skype three times a week and such other times as agreed. Those orders also provided that the mother not be permitted to relocate from an 80 kilometre radius of Town A without the prior written consent of the father.[2]

   [2] Final orders made on 6 September 2016.

6. Against this background, on 29 November 2017, the mother filed an application seeking parenting orders which among other things provide for the mother to have sole parental responsibility, the child’s name be changed and that the child spend time with the father, ‘as deemed appropriate by this Honourable Court.’[3]

   [3] Paragraph 4 of the initiating application of Ms Naparus filed 29 November 2017.

7. In her affidavit affirmed 28 November 2017, in support of her application for further parenting orders, the mother made various allegations against the father, including that he has engaged in family violence towards her and in the presence of the child, that the father is unable to control his anger and has mental health issues, that the father’s brother behaves inappropriately in the presence of the child and that ultimately, she seeks to relocate to Perth where she has more family support.[4]

   [4] Affidavit of Ms Naparus filed 29 November 2017.

8. The father stated in his affidavit filed on 22 January 2018 that he lives in Town B which is 380 kilometres north of Town A.[5] Following separation, the mother relocated to the Town A area. The father in his affidavit material denies the allegations of violence made by the mother and various other allegations made by the mother.[6]

   [5] Paragraph 3 of the affidavit of Mr Frankham filed 25 January 2018.

   [6] Affidavit of Mr Frankham filed 25 January 2018.

9. The father also alleges in his affidavit material that the mother is seeking to undermine his relationship with the child. In his response filed on

   
   

   25 January 2018, the father seeks final orders that the parties have equal shared parental responsibility but that the child live with him.[7]

   [7] Paragraphs 3 and 4 of the response filed 25 January 2018. 

10. On 29 January 2018, the mother filed an amended initiating application. In this amended application, the mother sought an additional order that she be permitted to relocate to Perth with the child.[8] In addition, on an interim basis, the mother sought that the father’s time with the child be supervised by Bethany Family Services if in Victoria or at a supervised contact centre if in Perth.[9]

    [8] Paragraph 4 of the amended initiating application filed 29 January 2018.

    [9] Paragraphs 5 and 6 of the amended initiating application filed 29 January 2018.

11. The mother’s application first came before the court on 31 January 2018 at which time orders were made that the parties attend a child inclusive conference on 10 April 2018, that an Independent Children’s Lawyer be appointed and that the child spend time with the father at various nominated play centres to be supervised by both the maternal and paternal grandparents.[10] 

    [10] Interim orders made 31 January 2018.

12. The matter next came before the court on 30 April 2018 at which time the court had the benefit of a report from the family consultant who conducted the child inclusive conference. 

13. At that time, the mother maintained her opposition to the father spending unsupervised time with the child. The father sought to proceed to increase his time to unsupervised time.

14. For the reasons provided in my reasons for judgment (provided ex tempore), I made the April Interim Orders which relevantly provide:

    a)That the child spend time and communicate with the father as follows:

    ·on Wednesday 2 May 2018 for a period of 2 hours as agreed but failing agreement from 10am to 12pm at Play Centre in Town A and the paternal grandmother, Ms D shall be in substantial attendance

    ·commencing Saturday 19 May 2018, each alternate Saturday thereafter from 11:00am to 5:00pm;

    ·thereafter, commencing Saturday 14 July 2018 and each alternate Saturday and Sunday thereafter (on the same weekends) from 11:00am to 5:00pm on each day; and

    ·such further and other times as agreed between the parties in writing/SMS.

    b)The orders contained a notation that the father has indicated that the child’s time with him will be spent substantially in the Suburb 1 area at the residence of Ms D with her being in substantial attendance.

    c)The orders provided for the parties to register with a supervised centre for the purposes of changeover and pending that becoming available that changeover is to occur at nominated McDonald’s restaurants with the paternal grandmother to effect changeover on behalf of the father.

    d)The orders also provided that the father will not bring the child into contact with his brother, Mr M. 

15. The April Interim Orders, also listed the matter for final hearing on
    15 October 2018. 

16. The remainder of the April Interim Orders dealt with procedural issues to ready the case for trial, including the provision for a family report and for the parents to both undergo psychiatric assessment and report.

17. The mother has lodged an appeal against the April Interim Orders and has now sought a stay of those orders. 

Application for a stay

1. In the affidavit filed by the mother in support of her application for a stay of the April Interim Orders, the mother stated that she seeks the stay because:

   a)she fears for her daughter’s safety if she complies with the orders;

   b)she fears for her own safety;

   c)she is concerned about the father’s mental stability and believes that he is not taking his medication; and

   d)she fears that the paternal grandmother who is required to facilitate changeovers will withhold the child if the father asks her to do so.

2. The father has filed an affidavit in response filed 29 June 2018 in which he takes issue with much of what the mother has said. Put simply, he maintains that the mother’s allegations against him are without foundation and she is not complying with the April Interim Orders.[11] 

   [11] Affidavit of Mr Frankham filed 29 June 2018.

3. The affidavit material referred to above is simply recited to outline the parties’ respective positions. As the proceedings are still at an interim stage, neither party has given evidence before the court nor been subjected to cross examination, therefore each party’s assertions remain at this stage, untested. 

4. In her notice of appeal, the mother set out the following grounds:

   a)no reasons for judgement were provided;

   b)made a finding of fact on an important issue which could not be supported by the evidence;

   c)applied a wrong principle of law; and

   d)exercised her discretion to arrive at a decision which was clearly wrong.[12]

   [12] Notice of appeal filed 28 May 2018.

5. The mother’s application for a stay came before me on 2 July 2018. The mother represented herself and confirmed at the commencement of the proceeding that she had had an opportunity to speak to the duty solicitor. The father was represented by Mr E. Taghdir of counsel and the Independent Children’s Lawyer was represented by Ms Dosnajh.

6. The mother confirmed that she was seeking a stay of the April Interim Orders pending the hearing of her appeal. When asked to explain the basis of that application, the mother said:

   a)she did not believe that the best interests of the child were given adequate consideration under section 60CC of the Family Law Act 1975;[13]

   b)she relied upon her affidavit of 20 June 2018[14]; and

   c)she believes that there have been breaches of the intervention orders in place.[15]

   [13] Transcript page 4 at lines 37 to 39, where the mother also referred to sections 60CG and 60AP (sic) of Family Law Act 1975.

   [14] Transcript page 5 at lines 8 to 16.

   [15] Transcript page 5 at lines 24 to 29.

7. Counsel for the father submitted that in responding to this application, his client relies upon the principles set out in. Aldridge & Keaton [2009] FAMFCAFC 106 (“Aldridge”).

8. At paragraph 18 of Aldridge, the Full Court relevantly states:

   The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known … The authorities stress 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 a 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 the judgment is correct’

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the bona fides of the applicant;

   ·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 a 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;

   ·the desirability of limiting the frequency of any change in the child’s living arrangements;

   ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings are a significant consideration.[16]

   [16] Aldridge & Keaton [2009] FAMFCAFC 106 at paragraph [18].

9. In this case, it was argued on behalf of the father that:

   a)a stay is not necessary in this case to ensure that any  success on appeal by the mother, would not be rendered nugatory as any success on appeal would simply result in the time spent with the father reverting to being conducted in a public place; whereas, if the appeal is unsuccessful the detriment of a stay being granted is that the child will have been denied the capacity to spend time with her father in the interim to facilitate the development of a meaningful relationship as recommended by the family consultant who conducted the child inclusive conference;[17]

   b)the grounds of appeal are not strong because:

   i)reasons were provided;[18]

   ii)the court did not make any findings of fact but, in the context where there was significant dispute between the parties and allegations and denials of, among other things, family violence,  the court relied upon the best available evidence, namely the assessment conducted by the family consultant;[19]

   iii)the court applied the correct law to the extent that it referred to the best interests of the child, whilst noting the allegations of family violence by the mother and the denial of those allegations by the father;[20] and

   iv)there is no proper basis to the mother’s allegation that the court incorrectly exercised its discretion;[21] and

   c)the application for a stay is simply a delaying tactic by the mother to obstruct time between the father and the child.[22]

   [17] Transcript page 6 at lines 3 to 33.

   [18] Transcript page 6 at lines 33 to 37.

   [19] Transcript page 6 at lines 39 to 42 and page 7 at lines 1 to 3.

   [20] Transcript page 6 at lines 42 to 47.

   [21] Transcript page 7 at lines 3 to 8.

   [22] Transcript page 7 at lines 16 to 17.

10. Counsel for the Independent Children’s Lawyer supported the submissions put on behalf of the father’s counsel in opposing the stay application.[23] Moreover, it was further submitted on behalf of the Independent Children’s Lawyer that the concerns which the mother raises in support of the stay application were the same concerns raised at the interim hearing and there is nothing further which has changed which would suggest that the April Interim Orders are no longer appropriate.[24] 

    [23] Transcript page 7 at line 26.

    [24] Transcript page 7 at lines 27 to 31.

11. By way of reply, the mother explained that:

    a)she had filed the notice of appeal in a timely manner;[25]

    [25] Transcript page 7 at lines 36 to 39.

    b)the stay ought to be granted to avoid a contravention application being brought against her for not complying with the April Interim Orders;[26]

    c)she reiterated her concerns about the father spending unsupervised time with the child;[27]

    d)her concerns about the father’s mental health were not properly addressed;[28]

    e)she believes that neither the family consultant, nor the Independent Children’s Lawyer, viewed the subpoenaed medical records or the subpoenaed police records that were available on the file;[29] and

    f)the intervention orders:

    …were made to protect the child and myself. So by not correctly addressing the inconsistencies between the intervention orders and the family orders, I have concerns that the child will not be adequately protected if the child is to spend unsupervised time with the father.[30]

    g)In response to the suggestion that the stay was a delaying tactic, the mother indicated that she could seek an expedited appeal,
    

    [26] Transcript page 7 at lines 40 to 43 and page 8 at lines 3 to 5.

    [27] Transcript page 8 at lines 11 to 15.

    [28] Transcript page 8 at lines 29 to 45.

    [29] Transcript page 8 at lines 30 to 34.

    [30] Transcript page 8 at lines 41 to 45.

    [31] Transcript page 8 at lines 22 to 23

     ‘if necessary to … prevent the delay of the proceedings’[31]

12. The mother also expressed a concern about the fact that the paternal grandmother was solely responsible for facilitating changeover and that this was not consistent with the orders that had previously been made in January 2018.[32]

    [32] Transcript page 8 at lines 15 to 23.

Consideration

1. As noted in Aldridge, and the cases referred to therein, whilst the general principles which apply to the granting of a stay, equally apply to parenting matters, as stated in Clemett and Clemett which was referred to in Aldridge, ‘…in determining whether a stay should be granted, the welfare of the child is the paramount consideration’.[33]

   [33] Clemett & Clemett (1981) FLC 91-013 at paragraphs [76] and [175].

2. Whilst it may well be that the mother’s appeal may be rendered nugatory if a stay is not granted, that consideration needs to be balanced against the paramount consideration in a parenting case, namely the best interests of the child. On balance, and having regard to the fact that the substantive proceeding has been listed for October with procedural orders in place for the parties to file their trial material and for both parties to attend undertake a psychiatric report, this factor is not determinative in this case. Nor is the fact that a person who has obtained judgment is entitled to the benefit of that judgment determination.

3. Of the matters identified in Aldridge and set out in paragraph 26 above, the key considerations in this case are the best interests of the child as well as the desirability of limiting changes to a child’s living arrangements. In relation to the latter, I note that whilst the father’s amended response contains an application for orders that the child live with him, interim orders were not made addressing this aspect of the father’s claim. The April Interim Orders do not affect the child’s living arrangements.

4. Turning then to the best interests of the child, for the reasons set out in my reasons for judgment, the April Interim Orders were made having regard to the best interests of the child, balancing the concerns regarding alleged family violence with the need to facilitate a relationship between the child and both her parents and were based on recommendations made by the family consultant, in particular the recommendation that the child, ‘would benefit from a graduated schedule of time with her father.’[34] The court also had regard to the fact that post separation, the father had been spending time with the child pursuant to consent orders without any requirement that that time be supervised.

   [34] Child Inclusive Memorandum to Court filed 26 April 2018.

5. The mother’s evidence is that she is concerned about the father’s ability to manage his anger and she has also expressed some concerns about the father’s mental health. I note that she too acknowledges in her own material that she suffers from anxiety and depression. As stated, orders have been made for both parties to undergo psychiatric assessments before the final hearing is undertaken. The father in his affidavit material denies the allegations of family violence and anger management issues. For his part, the father alleges that the mother is seeking to alienate their child from him. These are all issues which will need to be ventilated and tested at a final hearing. 

1. At an interim stage, the court, whilst acting protectively, must seek to act in the child’s best interests on the basis of the best available evidence.

2. Where, as in this case, the parties themselves have divergent perspectives on the risk factors, it is appropriate for the court to have regard to independent evidence to the extent that it is available. In this case, the family consultant has provided that evidence. I am satisfied that, the recommendations made by the family consultant, which are reflected in the April Interim Orders, strike the right balance between being protective and addressing the mother’s concerns, whilst at the same time providing the child with an opportunity to develop an meaningful relationship with her father. This is particularly so in a case in which both parents are seeking final orders of this court for the child to live with them and in the case of the mother, she is seeking orders that she be permitted to relocate with the child to Perth. 

3. Recognising the need to balance the mother’s concerns about the father with the need to facilitate a meaningful relationship for the child with both the parents, I am not satisfied that it is appropriate in the circumstances of this case to grant a stay of the April Interim Orders. 

4. For these reasons, I make orders that the mother’s application in a case filed 29 May 2018 is dismissed. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 20 July 2018