Naparus and Frankham (No.4) - [2020] FCCA 1830

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAPARUS & FRANKHAM (No.4)

[2020] FCCA 1830

Catchwords:
FAMILY LAW – Application for a Stay pending Appeal against interim orders.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Kelly & Kelly (1981) FLC 91-007

Applicant:

MS NAPARUS

Respondent:

MR FRANKHAM

File Number:

MLC 1462 of 2016

Judgment of:

Judge McGuire

Hearing date:

2 July 2020

Date of Last Submission:

2 July 2020

Delivered at:

Launceston

Delivered on:

2 July 2020

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent:

Mr Graham

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer:

Nick Graham Legal

Mr Dunstan

ORDERS

That the interim Orders of 30 April 2018 and the subsequent interim Orders of 9 June 2020 remain in full force and effect and the mother’s application for a Stay is dismissed.
That the father’s Application for a Recovery Order is adjourned for hearing in the Federal Circuit Court at Melbourne on Thursday 9 July 2020 at 9.30 a.m. (EST) by Global Meet telephone procedures.
That my Reasons for judgment delivered ex-tempore this day in respect of the mother’s Application for a Stay be taken out, settled and placed on the Court file.

IT IS NOTED that publication of this judgment under the pseudonym is Naparus & Frankham (No.4) approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

MLC 1462 of 2016

MS NAPARUS

Applicant

And

MR FRANKHAM

Respondent

REASONS FOR JUDGMENT

Delivered Ex-tempore

In the matter of Frankham & Naparus, I in fact have two applications before me today. I firstly have an application by the mother who today appears in person for a stay of my interim orders of 9 June 2020 pending her appeal against such orders, I also have before me but will leave in abeyance for the moment an application by the father for a recovery order in respect of the parties’ daughter, X, born in 2015. So X is five years of age.
The relevant background facts as far as I can recall and extract are these: that the parents have been engaged in parenting proceedings in respect of X in the Melbourne registry of the Federal Circuit Court now for some years; Substantially, the mother seeks an order that she be permitted to relocate with X to Western Australia with X living in her primary care; From 30 April 2018, as far as I can understand, there are the most recent of interim orders in respect of X providing for X to spend time with the father on an increasing regime towards alternate Saturdays and Sundays.
On 22 to 25 October 2018 a final hearing proceeded before her Honour Judge Mercuri whereupon her Honour made orders, inter alia for X to live with the mother with graduated alternate weekend time with the father and specifically that the mother be restrained from relocating the child to Western Australia. The mother appealed her Honour’s decision and on 18 February 2020 their Honours in the Full Court handed down orders and reasons on the appeal. The appeal was effectively successful and the orders of her Honour of November 2018 were discharged and the application was remitted for hearing before another judge of this Court, in that case being me.
That obviously and clearly left in force the most recent interim orders of 30 April 2018. It seems not disputed that on 5 April 2020 the mother unilaterally moved herself and X to Western Australia and arguably only a day – if not a day, then only a matter of days – prior to the state lockdown of borders due to the COVID-19 virus. As I have said, the trial was remitted for hearing before me and listed for hearing for three days duration on 9 June 2020. The trial could not and did not proceed on that day for a number of reasons.
As I have already said in interrupting the mother’s submissions, the Court file shows a telephone conversation with her then-solicitors on the record being a complaince check and the indication from the mother’s solicitors during that complaince check was that the mother would be seeking an adjournment for a face-to-face hearing and did not want to proceed by Microsoft Teams, which of course at that stage was the only way in which trials before this Court were proceeding due the COVID-19 virus. In any event, there were also other difficulties in the trial proceeding with that the affidavits of both parties have been filed only a matter of days prior to the trial contrary to the procedural orders. Further, there was an addendum report by the family reporter, Mr D, dated as recently as 25 May 2020 indicating that he had not been able to observe X with the father, which was understood to be a crucial part of the reporting process.
Significantly, on 24 April 2020, the mother then represented by solicitors, had filed an Application Initiating Proceedings but also seeking interim orders inter alia that she be permitted to remain in Perth with X. That was clearly unambiguously an interim application aimed at legitimising the unilateral relocation of X and her prima facie breach of extant interim orders providing for time between X and her father.
On the adjournment of the trial which, as I have already indicated, was, effectively inevitable for a number of reasons, including the request of the mother through her lawyers that this trial be held face-to-face, not by Microsoft Teams, without objection from either party or the independent children’s lawyer, I proceeded to hear the mother’s interim application. That application was opposed by both the father and the Independent Children’s Lawyer.
At the conclusion of the submissions interim orders were made on 9 June 2020 providing inter alia that the mother return X to Victoria within seven days of removal of the border closure or travel restrictions. It is this order from which the mother appeals and now argues for a stay of those orders. The father and the Independent Children’s Lawyer oppose the making of the stay order. They have made short submissions accordingly.
It is well-established that the fact of the institution of an appeal with the Full Court does not operate as a stay. The basic principle enshrined in the rules is that there be no stay of enforcement of an order pending appeal unless the contrary was ordered. It follows that the determination to order a stay or not to so order is a wholly discretionary exercise of the Court.
Fogarty J in the well-known decision of Kelly & Kelly[1] succinctly stated the relevant principles and process by noting that a stay should not be granted as a matter of course but only when appropriate circumstances are established.
[1] (1981) FLC 91-007
The consideration as to whether to grant a stay usually involves a consideration and balancing of two or three competing factors. Firstly, the well-recognised principle that a successful litigant or a party having the benefit of Court orders should not be deprived of the fruits of those orders. Secondly, and as relied upon by the mother in the matter now before me, the Court is to consider whether the risk that a successful appeal would be rendered nugatory by a denial of the stay. Thirdly, it is generally accepted that the Court in considering an application for a stay is also to consider the prima facie merits of the appeal.
In the matter now before me, the mother has filed and relies on an affidavit in support of her application. That affidavit was sworn 18 June 2020 and the contents are read into evidence. The mother has made submissions elaborating on and in support of the contents of that affidavit. On my understanding of her submissions and that material, she argues, firstly, that the stay is filed to avoid the appeal being rendered nugatory.
Secondly, she argues that the Court gave insufficient weight to a mental health report indicating that her own mental health has improved since her return to Perth. Thirdly, she argues that on the appeal she hopes to successfully argue that the family report of Mr D to be ‘inaccurate, misleading and biased’.
On reflection and consideration, I do not accept that any successful appeal by Ms Naparus would be rendered nugatory by a refusal of the stay as opposed to inconvenienced. The one simply does not follow from the other. I am of the view that the mother perhaps misunderstands the concept of nugatory. Noting that she has no current legal right to be in Western Australia with the child. To the contrary, the extant interim orders provide for time for the child with the father in Victoria. And the mother is prima facie in contravention of those orders.
Secondly, and as a balance, the father has the right to the benefits under the extant interim orders. But, more appropriate and importantly, perhaps, indeed, the child X has a right to spend her time with her father under those extant interim orders.
Thirdly, and whilst it is always a difficult exercise for a judge at first instance to subjectively – or, perhaps more appropriately, objectively comment on the prima facie merits of an appeal, it is difficult in this particular case to see that the mother’s appeal has a strong prima facie merit. In making that comment I note the following: (1) she left Victoria apparently without the permission of the father and arguably did so during the time of COVID-19 virus and perhaps with the knowledge of, or reasonably to have expected that it would be probable of there being pending lockdowns of state borders. Secondly, she acted prima facie in breach of interim parenting orders.
Taking all of those matters into account and in an application where the exercise is a discretionary one, I am not persuaded in these circumstances that the mother has made out a case for a stay of the interim orders and that those orders will, therefore, remain in full force and effect and the mother’s application for a stay is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate:

Date: 6 July 2020