Nineth and Nineth

[2011] FamCA 128

FAMILY COURT OF AUSTRALIA

Nineth & Nineth [2011] FamCA 128

FAMILY LAW – CHILDREN – Stay of orders pending appeal

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Clemmett & Clemmett (1981) FLC 91-013
Donnell v Dovey (2010) 42 FamLR 559
Hort & Verran [2009] FamCAFC 214
In re CP (1997) FLC 92-741
JRN and IEG (1998) 72 ALJR 1329
K & B (2006) 37 Fam LR 1

APPLICANT: Ms G.Nineth

RESPONDENT: Ms F. Nineth

INTERVENOR: Ms Moldow

INDEPENDENT CHILDREN’S LAWYER: Burridge Harris & Flynn Solicitors

FILE NUMBER: LEC 421 of 2008

DATE DELIVERED: 20 January 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 20 January 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Donaghy of G.J. Donaghy & Co.

THE RESPONDENT: In person

THE INTERVENOR: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Steiner of Burridge Harris & Flynn Solicitors

Orders

IT IS ORDERED THAT

1. The Application for Stay filed on 17 January 2011 be dismissed.

2. Ms G. Nineth shall effect the transfer of the child J born … August 2005 into the care of the grandmother Ms Moldow by not later than 4.00pm on Friday 21 January 2011.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 421 of 2008

Ms G. Nineth

Applicant Maternal Great-Aunt

and

Ms F. Nineth

Respondent Mother

and

Ms Moldow

Intervener Maternal Grandmother

EX TEMPORE

REASONS FOR JUDGMENT

1. On 17 December 2010, I made orders and delivered reasons in relation to a parenting dispute, the trial of which had occurred on 25 and 26 October 2010.  The orders and reasons were delivered late in the afternoon about a week before Christmas (noting that New South Wales, where the parties and the respective legal practitioners reside and practise, was an hour ahead). 

2. Those orders contemplated that the great maternal aunt who had erstwhile had the full-time care of J, transfer him into the care of the grandmother, Ms Moldow, by not later than 4pm on 20 December 2010.  The proximity of that changeover date to Christmas will also be noted. 

3. Notification was received, although not in the proper form, from solicitors acting for the great maternal aunt (who I shall call in these reasons “the aunt”), of an intention to appeal the orders made by me and to seek a stay of those orders pending that appeal. 

4. On 20 December 2010 and on 23 December 2010, despite the significant deficiencies in form, I granted what might be called for convenience “temporary stays” in respect of the orders. 

5. The unusual orders made on 23 December and the unusual circumstances which led to those orders are the subject of ex tempore reasons for judgment given that day.  Those reasons for judgment should be read in conjunction with these current reasons. 

6. One of the unusual features of the hearings which occurred on 20 and 23 December 2010 was that neither the mother nor the maternal grandmother, who each represented themselves during the course of the trial, were present for the hearing of those applications, nor, it should be noted, had they been served or otherwise given notice of that prospective application. 

7. For the reasons given on 23 December 2010 I determined to hear and to grant that “temporary stay” notwithstanding that very significant fact and notwithstanding the plain non-compliance with the Rules by the applicant aunt. 

8. By orders made on that day, I determined to have the mother and grandmother personally served with relevant documentation so as to facilitate their attendance at the further hearing of the application which took place today. 

9. As it transpired, each of the mother and maternal grandmother appeared today by telephone, as did the solicitor for the aunt and the independent children’s lawyer, Ms Steiner.  Neither the mother nor the maternal grandmother filed any material in respect of this application. 

10. Pursuant to orders made by me on that day, the aunt filed and relies upon an Application in a Case, an affidavit by her solicitor, Mr Donaghy, and a Notice of Appeal containing seven grounds. 

11. The principles relevant to the granting of a stay are well-established and well understood. Insofar as they pertain to parenting proceedings, it is sufficient, I think, to mention the seminal decision of the Full Court delivered by Nygh J in Clemmett & Clemmett (1981) FLC 91-013. In a familiar passage in that judgment, his Honour said:

    Whilst we agree with the considerations as set out by Watson SJ in Carlin & Carlin (1977) FLC 90-320, we must stress that the most important of them is the one listed by him as the first: “the rights of children.” This must outweigh any presumption which might apply in non custody matters that a party is entitled to “the fruits of the litigation.”

    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 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.  In this case, we are satisfied that the appellant is appealing seriously on the merits of the case that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father.

12. Although that decision is now more than 25 years old, the same principles, and in particular the prominent emphasis on the best interests of the relevant child, have been reinforced by later decisions.  It is, I think, necessary to refer to only two.  The first in time is what was said by Kirby J in JRN and IEG (1998) 72 ALJR 1329 ‑ a parenting case in which application was made for special leave to appeal to the High Court. His Honour said:

    … the principles which govern the determination of stays in this Court are not in doubt, they are stated in Jennings Construction Limited & Burgundy Royale Investments Pty Ltd (1) (1986) 161 CLR 681 … [i]n [Bryant & Commonwealth Bank of Australia (1996) 134 ALR 460 at 464]. I drew attention … to the fact that different considerations may apply in respect of the operation of the criminal law or in respect of laws designed to protect the public. In my opinion, some adaptation of the rules stated in the case as governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and in particular children whose welfare must always be in the mind of a Court in making an order affecting their interests.

13. Later the Full Court of this Court in K & B (2006) 37 Fam LR 1, held at [24]:

    There is no dispute in this case that the appeal is based on substantial grounds that it is brought bona fide and is not a mere delaying tactic, that expedition of the appeal is sought and it can be dealt with within a reasonable period of time.  In the circumstances, the question of the circumstances of the child at the time the orders were made required careful and weighty consideration.

14. Mr Donaghy, the solicitor for the applicant aunt submits ‑ correctly, in my view – that, although the onus is on the applicant to establish those matters necessary for the exercise of the discretion in favour of granting the stay, the grant of such a stay is not dependant on the matter being either special or exceptional.  Equally, stays are not granted lightly or as a matter of course.

15. It is fundamentally important to bear in mind in this application, that J is still very young.  He was born in August 2005 and is currently aged about five and a half.  As was made clear in the trial reasons, his day to day care has been, for a very significant period of time, provided by the applicant aunt. 

16. There was discussion at the trial, and there was reference in the family report, about assertions made in respect of what might be described as the day to day care and the provision of day to day necessaries such as appropriate food and the like when in the aunt’s care, but a specific finding was made at the trial that there ought be no concerns in that respect.  Indeed it was a matter effectively conceded by the mother and maternal grandmother during those proceedings. 

17. Thus, it seems to me plain, on the evidence before the Court at the trial, that it cannot be said that J is at risk of harm if he remains in his aunt’s care. 

18. Important considerations otherwise referred to in Clement and the other authorities referred to need to be considered.  I have in mind, in particular, that it is particularly desirable that the frequency of changes in custodial arrangements should be avoided to the extent that it is possible. 

19. Secondly, it is necessary for the Court to consider whether the appeal is based on substantial grounds or is brought other than bona fides or as a mere delaying tactic.  I have no doubt that the appeal in this case is not a mere delaying tactic on the part of the maternal aunt.  I do not consider that to be the appeal’s purpose.  I accept that the maternal aunt seeks to bona fide challenge the orders made by me after a trial.  In that respect the aunt places emphasis on the fact that the child has been with the aunt for a very considerable proportion of his life.

20. I propose, then, to refer specifically to the grounds of appeal in terms of assessing whether the appeal “appears to be based on substantial grounds.”  Of course, the reference to that issue in a decision about whether a stay ought be granted is not, and plainly should not be, a substitution for what will ultimately be a decision by the Full Court in respect of the merits of each of the grounds and the totality of the grounds in any appeal. 

21. It is necessary though, in the exercise of the discretion as to whether to grant a stay to balance the potential merits of the appeal against the prospect of a judgment delivered after a trial not being carried into effect. 

22. In that respect it is, in my view, very significant that the decision in Clement and, indeed, the other authorities to which I have referred, refers to whether the appeal “can be dealt with within a reasonable time” and that the appropriateness of the stay in children’s cases can be seen to be referenced to whether the existing circumstances continue “for at least a short period.” In Clement, for example, can be seen that a central component of the decision was that the appeal had in fact been expedited and could be heard within a reasonable time. 

23. The material before the Court on this application does not reveal that any inquiries had been made of the Appeal’s Registrar for the Northern Region to ascertain when this appeal would likely be heard.

24. Each of the parties was given the opportunity to have the Regional Appeal’s Registrar give evidence in Court. All consented to my providing information to them without the necessity for the registrar to give evidence in the proceedings.  The information provided by the Appeal’s Registrar in relation to the hearing of the appeal is that this appeal would not be heard any earlier than August or September 2010 and was likely to be heard after that.

25. Accordingly, even if the Full Court were to adhere in this particular case to the guidelines which all judges of this Court seek to comply with, that a judgment be delivered within three months of the date of hearing, the appeal would not be heard and determined until at best late this year and, more likely, early next year. 

26. Thus, at the time when the appeal was heard and determined, the orders would be some 12 months old at best, and perhaps older.  In my view that is a very significant consideration in the exercise of the discretion in this case. 

27. That is all the more so, in my view, given at least one of the issues which emerged during the trial and about which specific findings were made.  Those specific findings are not challenged in the prospective appeal. It is important to reiterate them here.

28. At paragraph 76 of the reasons for judgment, I said this:

    It will have been seen that reference is made to, for example, “the willingness and ability of the [aunt] to facilitate a close and continuing relationship between the child and other persons who are significant to his care, welfare and development.”  It will be appreciated that this is not the wording of section 60CC(3)(c); that subsection confines itself to that willingness and capacity in “parents” and speaks of facilitating a relationship with the other “parent.”  However the terms of section 60CC(3)(c) and other subparagraphs like it just quoted are in the circumstances of this case plainly relevant as considerations by reason of section 60CC(3)(m) and the expressions are used in that sense. 

29. As part of the judgment’s conclusions I said, at paragraph 125:

    I assess the grandmother as being the person most likely to make genuine and likely continuing attempts to maintain a relationship between [J] and the aunt.  I consider that the aunt is extremely unlikely to do so if [J] was to live with her unless time occurs in accordance with what she determines should occur and in a manner which she determines.  The mother is, in my view, intellectually committed to ensuring a relationship between [J] and the important people in his life, but I doubt her ongoing capacity to do so on a practical level at all with the aunt and if previous conflict with the mother was to erupt, that is:  “Her words are likely to be louder than her actions.”

30. I repeat that this finding is not challenged in any ground of the appeal. 

31. In these proceedings, the Independent Children’s Lawyer expresses concern about the extent to which there has been time facilitated by the aunt with the grandmother and mother in, firstly, the approximate six-week period between the trial concluding was heard in October and judgment being delivered, and secondly, in the period between 17 December and 25 December 2010. The solicitor for the aunt indicates that his instructions are that time was facilitated on Christmas Day and again in the last few days. 

32. In that intervening period there has, of course, been very significant flooding not only in South East Queensland but also in the northern rivers of NSW.  Mr Donaghy indicates that his client found it necessary to see her son who was situated, I gather, in one of those flood-prone areas and was absent for about three weeks or so during January.  The mother and grandmother appear to accept that. 

33. The grandmother does however say that in the period between the trial and the delivery of the judgment that very little time had been spent by her with J.

34. Certainly that was a major concern to me as the reasons for judgment reveal.  I do not propose, in the course of these reasons, to make any findings about what the aunt did or did not, or could or could not, have done in respect of the amount of time.  I accept, for the purpose of these reasons, that in the period between Christmas Day and the last few days there has been no opportunity for time to occur by reason of the matters that her solicitor raises on her behalf. 

35. I remain concerned, however, in a more general sense about the aunt’s willingness to facilitate time, as I flagged clearly in the reasons for judgment.

36. Specifically, in respect of the grounds, it is appropriate, I think, to quote them and to look at each in turn.  The grounds of appeal as drafted are as follows:

    (1)His Honour erred in failing to properly consider section 60CC(2)(b) of the Family Law Act 1975.

    (2)His Honour took into account irrelevant considerations in reaching his decision, namely, the Christianity of the applicant maternal great aunt.

    (3)His Honour erred in the exercise of his discretion by accepting and placing weight on the family report.

    (4)His Honour denied the applicant maternal great aunt procedural fairness by relying upon the evidence of [Mr P].

    (5)His Honour took into account irrelevant considerations by placing weight on academic research.

    (6)His Honour failed to give proper consideration to the impact upon the child in changing longstanding living arrangements.

    (7)In considering the relevant section 60CC matters his Honour erred, and his discretion miscarried, by placing emphasis on the mother’s and/or maternal grandmother’s future intentions as opposed to their actual conduct as a parent and/or caregiver towards the child.

37. By way of initial observation it might be observed that many, and perhaps all, of the grounds challenge the weight given to either particular aspects of the evidence or given to one primary or additional consideration over another. 

38. The Full Court that hears this appeal will, of course, be bound by a long line of decisions of the High Court of Australia in respect of Courts of Appeal sitting in appeal from discretionary judgments.  Those principles had been quoted frequently and at length by many full Courts over many years and is a consideration that needs to be borne in mind in a general sense with respect to the grounds about to be discussed.

39. Ground (1) refers to the primary consideration of, described broadly, “Protection from harm.”  The ground can be seen to contain an unparticularised assertion of failing to consider that specific primary consideration.  It suggests in terms (see the words “Failing to properly consider”) that insufficient weight was attached to that specific part of the process mandated by Part VII of the Act and section 60CC in particular.  It is important to understand that the somewhat unusual terms of the order made in this case, namely, an order that parental responsibility be vested in the maternal grandmother, as distinct from either the mother or the aunt, was made in lieu of an order (that otherwise could have been made) that the child live with the mother.

40. It is, in my view, plain from the reasons that one of the reasons, indeed a seminal reason why that is so, is precisely because significant weight was attached to section 60CC(2)(b) and, in particular, the potential for harm created by the mother’s relationship with Mr F.

41. Two specific references to the reasons will suffice.  At paragraph 83 of the reasons I said this:

    83.The matters just described cause significant concern about the stability that might be afforded to [J] in the full-time care of his mother and all the more so in circumstances where she says she intends to form a permanent relationship with [Mr F] and for them to live in [a town on the north coast of New South Wales], a significant distance from [E, the town in northwest New South Wales] where the grandmother is residing in a household of four young children and a new baby.

42. That comment is made consequent upon a discussion of some of the evidence in respect of violence perpetrated by Mr F and specific reference to his criminal history which extended back to 1994.

43. Insofar as the ground specifically refers to section 60CC(2)(b) of the Act, the Reasons include:

    84.Plainly enough, those concerns relate to the primary consideration [ie section 60CC(2)(b)] just referred to but they also relate to the parenting capacity of the mother (and her prospective live-in partner) as well as the “maturity” of the mother and her partner and the attitudes to the child and responsibilities of parenthood demonstrated by the mother. All are important additional considerations.

1. In respect of that topic, when discussing ultimate findings made in the case, I said specifically by reference to the nature of the order made (which did not permit J to live with his mother and Mr F):

   137.I consider such an order facilitates the best and safest opportunity for [J] to develop a relationship with his siblings and the best chance for an appropriate relationship between [J] and his siblings to flourish.  It allows a relationship between [J] and his mother to find proper expression while, at the same time, allowing some, as it were, oversight of the progress which, it is to be hoped, the mother continues to make in distancing herself from the mistakes of the past.  It also allows a similar degree of oversight in respect of the progress in the relationship between the mother and [Mr F].

2. The reference in that paragraph to the “best and safest” opportunity for J will be noted.

3. Ground (2) suggests that the judgment “took into account irrelevant considerations in reaching [my] decision, namely, the Christianity of the applicant maternal great aunt.” 

4. I confess that I am somewhat baffled by this ground.  It was an accepted fact at the trial that the aunt’s religion (Christianity) was a central facet of her life.  It was an accepted fact at the trial, that her religion provided the framework for her moral and ethical, as it were, positions and was a very important component of the discipline and morals practiced by her in her parenting of J.  That was to be contrasted with the position of the mother and grandmother for whom religion (whether Christian or any other) did not predominate but, in respect of which, the identification with Aboriginal identity was of fundamental importance.

5. It seemed to me plain then, and seems to me plain now, that this quintessential difference was a primary issue in the trial and, as I said in the reasons, was directly related to a number of specific considerations, not least among them section 60CC(3)(b), (c), (d), (g) and (h). 

6. It is to be noted in particular that, as section 60CC(3)(g) of the Act provides, the Court must take into account, if relevant, “the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.”  I again make the point that the aunt is not, of course, a parent, but the trial was, properly, conducted on the basis that those relevant section 60CC considerations were effectively as applicable (in deciding best interests) to the aunt in her position as the significant carer for J as they were to a parent if the parenting dispute was between two parents.

7. I reiterate that, in my view, they are, in any event, directly relevant by reason of section 60CC(3)(m) of the Act.  In relation to this ground and this issue, I said in the reasons:

   67.The aunt predominates her [Christian] faith ahead of her Aboriginal identity and the importance of that for [J].  The aunt is a pastor within that religion and “lives it” in the sense that it provides the framework for her values, moral judgments and the cultural milieu within which she has raised and would continue to raise [J].  Examples emerged during the hearing.  One is that the aunt would not countenance [J] attending a non-Christian school despite the fact that it would mean his attending a different school to his siblings (if all continued to live in [E, the town in northwestern New South Wales]).

   68.It is clear that each of the mother and the grandmother identify much more strongly with their Aboriginality and Aboriginal culture.  I am not convinced that the same applied – at least on an intellectual level – to [Mr F] but I not that he shares the same cultural heritage as the mother and grandmother.

   69.Obviously the difference between the parties just described is central to an issue which the Act mandates is vital to a decision in this case.

8. As I say, in light of the position this issue occupied at trial, and referred to in ground (2) in the whole of the context of the reasons for judgment, I remain baffled by ground (2). 

9. Ground 3 is, plainly, an attack on the weight attached to particular evidence, in this case, specifically, rather remarkably as it seems to me, the family report.  The ground does not particularise any error said to emanate from the weight placed on the family report. 

10. In oral argument the argument as it emerged would appear to be that I erred in taking account of what Ms D had to say in respect of the role of Aboriginality and the lack of role of Aboriginality, as it were, in the life of the aunt and also in some specific factual respects.  I repeat the earlier comments made in respect of grounds of appeal that simply attack weight attached to particular evidence at the trial.  I think that this ground, with great respect, has negligible prospects of success.

11. Ground 4 attacks the reliance by me on evidence of Mr P.  It is said in the ground that the aunt was denied procedural fairness by my reliance upon Mr P. 

12. The evidence of Mr P insofar as it was contained in the family report of Ms D was objected to.  I overruled that objection.  I did so not necessarily because the Act now permits evidence to be given by way of hearsay, but because I considered that the evidence of Mr P may have relevance with respect to the issue of “Aboriginality” which was plainly a central issue in the proceedings. 

13. I explained the circumstances in which Mr P’s evidence was taken in, in that way, in the reasons when attempting to articulate why, despite what I referred in the reasons to as a “lacuna in the evidence” and, in particular, reference is made to paragraph 45 of the reasons.

14. However, it is central, in my view, to observe what in fact was said about Mr P’s evidence in respect of a ground which asserts procedural unfairness to the aunt.  I said this:

    88.I referred earlier to [Ms D’s] comments about [Mr P] and the context of providing information about culture.  [Mr P] is also reported by [Ms D] as making a number of comments adverse to the aunt.  He had supervised and facilitated three visits between the aunt and [J].  He described the aunt’s presentations and his dealing with her to [Ms D] as “abusive and hostile.”

    89.[Mr P] was not a deponent in these proceedings, nor were arrangements made to receive oral evidence from him.  He was then not cross-examined.  The report of his comments contained within [Ms D’s] report is the only evidence I have from him.  That report gives me the strong impression that he is a person partial to the mother and the grandmother.  I consider that his comments have about them a strong flavour of partiality and equally antipathy towards the aunt.

    90.I propose in those circumstances to attach no weight to his evidence insofar as it applies to or purports to describe the aunt or his interactions with her (noting that the aunt denies the descriptions of the behaviour as given by [Mr P] to [Ms D]).  I do, however, propose to attach weight to the evidence of [Mr P], unconnected with the aunt, and confine to those matters earlier referred to.

    The reference to “earlier referred to” is a reference in particular to paragraph 45 and the context there referred to namely evidence about “Aboriginality.”  I consider that the Full Court is unlikely to find merit in this ground and I do not regard it as a “substantial ground” of appeal. 

15. The fifth ground attacks as irrelevant “academic research” referred to in the Reasons.

16. I find this ground somewhat baffling in light of what at least three decisions of the Full Court have said, all of which are quoted at some length in the reasons for judgment (Donnell & Dovey, Hort & Verran, and In re CP.)  As I made plain in the reasons, there was a lacuna in the evidence similar to that which was described as such in Donnell & Dovey. As was made clear in the reasons, that difficulty needed to be balanced against what I regarded as the necessity to hear and determine the proceedings in J’s best interests (something specifically referred to within Division 12A of the Act).

17. Contrary to that which is asserted in the ground, reliance was not placed on “academic research.”  As the reasons made clear, reliance was placed on evidence before earlier decisions of this Court, something specifically referred to as permissible in section 69ZX(3) of the Act to which light and shade is given when reference is had to the Explanatory Memorandum accompanying the Reform Act which introduced section 69ZX(3). 

18. Mr Donaghy submits in effect that Courts should be very cautious about accepting expert or “academic” evidence in that respect. Plainly that is correct.  Nevertheless, the section, as the Explanatory Memorandum makes clear, is inserted with a clear legislative purpose and that is to facilitate evidence being given that might otherwise be extremely expensive and burdensome upon both the Court and the parties in proceedings where that evidence might be relevant.

19. It is, in my view, precisely why the Full Courts in the cases to which I have referred, and others, have referred to that research and that evidence in that manner.  In light of what the Full Court has made abundantly clear should be before the Court in cases of this type, that ground 5 can be said to be a “substantial ground” of appeal. 

20. Ground 6 is purely and simply, as it seems to me, an attack on weight.  It is asserted that there was a “failure to give proper consideration” to the long-standing living arrangements. 

21. Reference to the reasons will make it abundantly clear that the Court was very well aware of, and concerned about, the fact that J had been living with the aunt for a considerable period of time. Specific reference was made, for example, in that respect, to section 60CC(3)(d) of the Act which mandates the Court considering the likely effect of change.  I don’t regard that ground as being “substantial” in the sense used by the Full Court in Clement either.

22. The meaning of ground 7 eludes me somewhat.  The suggestion is, it seems, that too much emphasis was placed on “future intentions” as opposed to “actual conduct as a parent.”  It seems to me axiomatic that parenting decisions must almost always be about “future intentions.”  Indeed, they have at their centre, as section 60CC makes abundantly plain, the necessity for Courts to make predictions about the future.  That’s what parenting proceedings are about. 

23. As explained by the solicitor for the aunt, it seems that the suggestion is that insufficient weight was given to the fact that the mother’s parenting (and inferentially the grandmother’s “parenting”) left a significant amount to be desired and greater weight ought to have been given to that consideration as opposed to, in effect, taking them at their word about improvements in that parenting and their plans for the future.

24. Again, ground 7 seems to me to be purely an attack on weight given to parts of the evidence and the evidence as a whole and, in my view, cannot be said to be “substantial” in the sense referred to in Clement. 

25. Taken together, it seems to me that the grounds cannot be said to be “substantial” despite the fact that I accept the aunt brings the appeal bona fide and not as a mere delaying tactic. 

26. The solicitor for the aunt submits that if the stay is not granted, then the appeal will be rendered nugatory and that this ought be an important consideration.  There is little doubt that the prospect of an appeal being rendered nugatory is a powerful and important consideration in the exercise of the discretion.  It is, however, as Clement and other decisions make it clear, but one of the considerations relevant to the exercise of that discretion.

27. As that decision makes clear, and as many other authorities make clear, the predominant consideration in respect of a stay, (although not of itself a “parenting order”) should be a consideration of the relevant child’s best interests.  A number of matters directly relevant to J’s best interests are dealt with in the reasons and none of those insofar as the grounds in the notice of appeal reveal them are attacked in the appeal.

1. I have already referred to what I regarded in the reasons and continue to regard as a powerfully important consideration and that is the willingness and capacity of the aunt to facilitate a meaningful relationship between J and his mother and grandmother. 

2. Other considerations are also evident, directly relevant to section 60CC and an ultimate decision about J’s best interests are also revealed in the reasons. 

3. It seems to me that the exercise of the discretion in this case ought involve a balancing of all of the matters to which I have referred.  In my view, when that is done, the balance weighs in favour of refusing the stay and I so order.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 20 January 2011.

Associate: 

Date:  3 March 2011