Nineth and Nineth (No 3)

[2010] FamCA 1216

FAMILY COURT OF AUSTRALIA

NINETH & NINETH (NO. 3) [2010] FamCA 1216

FAMILY LAW – STAY

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

JRN & 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: Ms Steiner

FILE NUMBER: LEC 421 of 2008

DATE DELIVERED: 23 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 23 December 2010

REPRESENTATION

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

THE RESPONDENT: No appearance

THE INTERVENOR: No appearance

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

Orders

IT IS ORDERED THAT

1. The further hearing of the Application for Stay be adjourned to 4.00pm on 20 January 2011 in the Brisbane Registry of the Family Court of Australia.

2. The Orders made by Justice Murphy on 17 December 2010 be further stayed until 10.00am on 21 January 2011.

3. For the purposes of the further hearing of the Application for Stay, but only for the purposes of the further hearing of that application:

   a.The filing of the documents referred to in the orders made by Justice Murphy on 20 December 2010 shall be effected by forwarding the documents by email to the Associate to Justice Murphy by 4.00pm on 14 January 2011;

   b.Upon email notification from the Associate that the documents have been so filed (sent, in the case of the Respondent and Intervenor to the email …) an unsealed copy of each of the documents together with the orders of 20 December 2010 and these orders, shall be effective for service upon the Independent Children's Lawyer and each of the mother and the maternal grandmother;

4. Service of all documents required to be filed by the orders of 20 December 2010 and these orders be effected personally upon the Respondent and Intervener by 4.00pm on 18 January 2011 and, for that purpose (but without limiting that requirement), attempts be made to effect personal service at:

   …, E;

   …, E; and

   …, E.

5. The usual rules with respect to filing and service of documents be dispensed with in respect of the Application for Stay, but only for the purpose of the further hearing of the Application pursuant to these orders.

6. Subsequent to the further hearing of the Application, and irrespective of its outcome, the documents earlier referred to shall be filed in accordance with the Rules and for all future purposes the date of filing of the Notice of Appeal shall be taken to be the date appearing as the filed date of the sealed copy of same.

7. The Applicant shall pay each and all such filing fees as might be applicable (or seek a waiver of same as the case may be) upon the filing of the documents in accordance with the preceding paragraph of these orders.

IT IS NOTED THAT

(a)Time between the child J born … August 2005, and all parties to these proceedings over Christmas and up to the further hearing of this matter shall be significant time.

(b)The orders for filing and service personally of unsealed documents, has been ordered today, so as to best facilitate the hearing on 20 January 2011, and in light of the non-appearance of the Intervener and Respondent.

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

And

MS F NINETH

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have determined to continue until 10.00am on Friday 21 January 2011, an order for stay pending a prospective appeal made by me on what was, in effect, an ex parte basis on 20 December 2010.

2. That order will be made notwithstanding the highly unusual circumstances in which the initial application was made and the highly unsatisfactory circumstance that these proceedings today are conducted in the absence of the mother and maternal grandmother. The order will also be made notwithstanding the fact that Rule 22.11 of the Family Law Rules 2004 has not been complied with.

3. The order will also be made notwithstanding the fact that an additional highly unusual circumstance is that a Notice of Appeal has not yet been filed, despite an order to that effect being made by me on 20 December 2010. 

4. The primary and overriding reason why I have determined to make that order is that the best interests of the children require, in my view, a proper analysis and determination of the prospects of any appeal (among the other considerations relevant to the exercise of the discretion to stay).

5. The attempt to make orders and deliver reasons after a trial prior to Christmas, resulted in those orders and reasons being delivered on the afternoon of 17 December with a prospective changeover on 20 December 2010. That produced significant difficulties to each of the parties in respect of compliance.  It is necessary to briefly refer to the unusual circumstances in which the application was initially made, the initial orders made and the determination just referred to, arrived at.

6. On 17 December 2010, I made orders and delivered reasons for judgment after a trial that took place over two days on 25 and 26 October 2010.  The effect of those orders was to facilitate, via orders for parental responsibility, the maternal grandmother making decisions in respect of a child, J, including decisions as to with whom and where the child would live from time to time, and the extent of, and manner in which, his involvement in matters relevant to his Aboriginal heritage would be undertaken.

7. The orders provided specifically for the child to be given into the care of the maternal grandmother on Monday, 20 December:  that is they provided for that changeover to occur on the next working day after those reasons were delivered, 17 December being a Friday. 

8. I should also point out that the orders and reasons were given in the afternoon of that day, and that the parties and the solicitor for the applicant aunt and the Independent Children’s Lawyer respectively live and practise in New South Wales which is, of course, in a time zone an hour later than Queensland.  The result is that the orders and reasons were, in New South Wales, received very late in the afternoon.

9. Given the geographic distance separating the parties from Brisbane, where the trial was heard and the orders and reasons delivered, the parties and/or the practitioners, as the case may be, were excused from attendance at the handing down of the judgment.  Orders were made facilitating the delivery of the judgment and orders via email.

10. On Monday, 20 December, at about 9.45am Queensland time, an email was received by my associate from the solicitor for the applicant aunt.  So as to provide proper context for the unusual orders being made in this case, that (and ensuing emails have been marked as an exhibit in these proceedings; respectively exhibits 1 through 7. 

11. It is to be noted that the email of 20 December 2010 (Exhibit 1) was back-copied to the Independent Children’s Lawyer but was not back-copied to any email address (or, I gather, otherwise sent) to the mother or the maternal grandmother. 

12. It is, to say the least, highly unusual and wholly undesirable for a party to communicate with the chambers of a judge in circumstances where an application is in effect being made without any documents having been filed in the manner just indicated. Procedures exist for ex parte applications for that reason (among others).

13. It is important, I think, to quote from that train of emails.  The first email (Exhibit 1) is as follows:

    Dear Ms [Associate],

    Thank you for your email communication of 17 December 2010.

    We note that order 5 of His Honour's judgement requires our client to transfer [J] into the care of Ms [Moldow] by 4pm today.

    This office received His Honours judgement at 3:21pm on Friday 17 December 2010.

    We hold instructions to request that the matter be listed before His Honour at the court's earliest convenience so that our client may seek a stay of His Honour's orders.

    Given the limited time frame we would ask for the courts leave to attend by telephone when the matter is listed (2pm Queensland time today would be suitable to us). However we have attempted to contact the Independent Children's lawyer but have been unable to ascertain her availability.

    Thanking you in anticipation,

    Geoff Donaghy

    G J DONAGHY & COMPANY

14. Notwithstanding the highly unusual manner in which an “application” was made for what was, in effect, an ex parte order (the proper procedure for which is enshrined in the Rules), the fact that the judgment was delivered late on Friday afternoon, the email early the following Monday, and the proximity to Christmas, and notwithstanding the very significant fact that the mother and grandmother were unaware of any such “application” (or indeed, it seems, unaware of any communication being forwarded to the judge’s associate by one of the parties) I considered that I should nevertheless make an order in the terms effectively sought by the applicant.

15. However, as the email from my associate to the solicitor for the aunt of 20 December 2010 at approximately 12.11 (Exhibit 3) makes abundantly clear, those orders were made subject to a number of significant restrictions referred to in that email. 

16. Moreover, an attempt was made by my associate to have the mother made aware of what had occurred in the email.  It seems to me a great pity that no such attempt was apparently made in respect of the first communication. 

17. My associate also back-copied that email (Exhibit 3) to the relevant Registrar who might otherwise have been the proper conduit for an ex parte application if it had been made in accordance with the Rules.

18. Significant in that respect, as has been seen, the email provides for the filing of a number of specific documents, not the least of which was a Notice of Appeal. The importance of the filing of that document in the context of a stay is made clear by the clear provisions of rule 22.11 of the Family Law Rules 2004. That the filing of a notice of appeal was a prerequisite under that rule to an application for stay was pointed out in that email correspondence to the solicitors for the aunt. (Exhibit 3 follows.)

    Dear Mr Donaghy,

    Thank you for your e-mail.

    It would appear that no Notice of Appeal has been filed.  The filing of same is a pre-requisite for the making of an application for stay.

    Your e-mail makes reference to attempts to contact the ICL, but no reference is made to attempts to contact either of the other parties.  It would appear they do not have notice of your having corresponded with me.

    His Honour has indicated that:

    1.A copy of your e-mail to me and this reply shall be filed and served forthwith;

    2.A Notice of Appeal should be filed and served by 4.00pm today (Queensland time);

    3.An Application in a Case seeking a stay and supporting affidavit should be filed and served by 4.00pm today (Queensland time);

    4.Subject to compliance with each and all of those requirements, an application for stay will be heard at 3.30pm (Queensland time) on Thursday 23 December;

    5.All parties will have leave to appear by telephone at the hearing of that application.

    No application has been made for an ex parte order for stay, nor is there an application for other urgent hearing.

    His Honour has determined that, in light of the circumstance that his Honour’s orders were made on Friday afternoon and required changeover by 4.00pm today and given the circumstance that [J] has erstwhile resided in your client’s care, he will treat your e-mail as an ex parte application for stay and, for the purposes of that ex parte application, dispense with the requirement for a Notice of Appeal to have been filed prior to it being heard.

    In respect of that ex-parte application, his Honour will forthwith issue the following orders which will be forwarded by e-mail and fax as the case may be:

    1.Until 10.00am on 24 December 2010, the Orders made by Justice Murphy on 17 December 2010 be stayed.

    2.The applicant aunt shall file and serve forthwith a copy of the e-mail forwarded to the Associate to Justice Murphy and this e-mail in reply.

    3.The applicant aunt shall file and serve by 4.00pm today (Queensland time):

    a.A Notice of Appeal;

    b.An Application in a Case seeking a stay; and

    c.An affidavit in support of that application.

    4.Subject to compliance with each and all of those requirements, the aunt’s application for stay will be heard at 3.30pm (Queensland time) on Thursday 23 December.

    5.Leave is given to all parties to attend the hearing of the application for stay be telephone.

    Regards,

    […]

    Associate to Justice Murphy

19. Approximately an hour later, a further email from my associate to the solicitors (again back-copied to those persons to which reference has just been made) was forwarded, enclosing a formal copy of the orders to which the earlier email had referred (Exhibit 4).  It provides:

    TO:

    Mr Donaghy (solicitor for the applicant aunt)

    Ms Steiner (ICL solicitor)

    Ms [F Nineth] (mother)

    Ms [Moldow] (maternal grandmother)

    As foreshadowed in the email sent earlier today, I have attached a scanned copy of the orders made in chambers today, staying the orders made by Murphy J on 17 December 2010, pending the hearing of the stay application (if such is filed in accordance with the attached orders) at 3.30pm (Qld time) on Thursday 23 December 2010.

    It would be appreciated if all parties could send a return email of their name and phone number on which they will be available at that time, should the hearing proceed.

    The sealed orders will be sent out in today's mail.

    Regards,

    […]

    Associate to Justice Murphy

20. On 20 December 2010, the solicitor for the aunt acknowledged in an email that the Rules did indeed provide for the filing of a Notice of Appeal as a prerequisite to the making of an application for stay. Exhibit 5 provides:

    Dear Ms [Associate],

    Thank you for your latest email.

    We appreciate your efforts in bringing this matter to His Honour's attention so promptly and the orders that were made.

    Unfortunately we are in the position of not yet obtaining a grant of legal aid for the drafting of a Notice of Appeal and supporting documentation. It had been our intention to obtain a stay of 28 days of His Honour's orders for us to consider and if appropriate then lodge an appeal. However we accept your comments in you earlier email about the filing of a notice of appeal is a pre-requisite for the making of an application for stay and I apologise for my error.

    After receiving your email we contacted Legal Aid and have been advised that even if we do file an application for legal aid today it will not be determined prior to 4pm today.

    We are therefore unable to meet His Honour's timetable.

    However we would seek the courts indulgence that having made an ex parte order number one staying the orders til 24 December 2010 that the stay be extended until 13 January 2011.

    The extension is sought on the basis of:

    1.  our client's need to obtain a grant of legal aid;

    2.  the child has resided with our client for the majority of his life and we would submit that no prejudice would flow to any party or the child should the extension be granted;

    3.  our client reside in [E] western New South Wales and in the time available prior to the Christmas New year shut down will be unable to attend our office to swear an affidavit in support of any appeal.

    A copy of my earlier email to yourself and this email has been forwarded to the independent children's lawyer, Ms [F Nineth] and Ms [Moldow] at the above email addresses. We have been unable to contact the mother and maternal grandmother by telephone.

    Thanking you in anticipation,

    Geoff Donaghy

    G J DONAGHY & COMPANY

21. So much is, I would have thought, in any event, clear from the general law and cases specific to this jurisdiction relating to the matters to which regard should be had in exercise of the discretion in the granting of a stay.  One of the matters relevant to the exercise of that discretion is the merits of an appeal and the context in which that appeal should be seen (for example, whether it could be said that the appeal has merit or is filed solely for the purposes of delay and the like).

22. That such a determination cannot be made without a Notice of Appeal should, as it seems to me, be obvious.  Moreover, it needs to be pointed out that here, not only was no formal Notice of Appeal filed, but no indication whatsoever of the grounds of the prospective appeal was provided in the communication.  Indeed, as reference to Exhibit 5 will make clear, the solicitor there says:

    It had been our intention to obtain a stay of 28 days of his Honour’s orders for us to consider and, if appropriate, then lodge an appeal.  However we accept your comments… (emphasis added).

23. As I said to the solicitor for the aunt during the course of argument, it seems to me, with great respect, that this puts the cart before the horse. 

24. The solicitor was at pains to say during the course of argument that he held “firm instructions” to appeal the decision.  Whether that is now the case (or was then) it is not what is conveyed by Exhibit 5.  What is conveyed by Exhibit 5 is that a stay was being sought so that an appeal could be considered.  It seems to me that is the antithesis of why a stay should be granted.

25. The solicitor says that he took Exhibit 6, being an email communication from my associate to him dated 20 December 2010, as in effect being a “waiver” of the requirements of a specific order made on 20 December to which reference has been made.  I find it, with respect, difficult to understand how that assertion can be made either as a matter of general principle or by reference to the terms of Exhibit 6 itself. 

26. During the course of argument, I made specific reference, for example, to the concluding paragraph of that email. Exhibit 6 is as follows:

    Dear Mr Donaghy,

    I note your comments with respect to the difficulty you have in obtaining legal aid.  It is noted that both the grandmother and mother represented themselves during the proceedings.

    A hearing will be held at 3.30pm on Thursday, 23 December 2010 to consider:

    a)    What appears to be an application for extending the current ex parte orders beyond 23 December 2010 to 13 January 2011; and

    b)   If this stay is granted, all parties' proposals for the time [J] is to spend with all parties between now and 13 January 2011, including, of course, time over Christmas.

    It is expected that any such applications made on Thursday, 23 December 2010, (including with respect to time) will be on notice to all other parties.

    Regards,

    […]

    Associate to Justice Murphy

27. Nevertheless, on 21 December 2010, the email comprising Exhibit 7 was received from the solicitor for the aunt which purported to confirm instructions “to make an application to the Court for a stay…” and that same email referred, as was requested, to specific proposals for time that the child should spend with the respective parties during what might conveniently be described as the Christmas period and, in the interim, until such time as proceedings could be determined. Exhibit 7 provides:

    Dear Ms [Associate],

    As you are aware I act on behalf of Ms [G Nineth].

    I have been instructed to make an application to the court for a stay of His Honour's orders and I note that the court has forwarded copies of the email communications between this firm and His Honour's Associate.

    To confirm my client's stay application is listed before the court at 3.30pm (Queensland time) Thursday 23 December 2010 with the parties being granted leave by the court to attend by telephone.

    I am instructed to put the following proposal for [the child] to spend with yourself and Ms [F Nineth] over the Christmas New Year period as follows:

    1.  Christmas day 1pm to 6pm

    2.  10am 27 December 2010 to 4pm 28 December 2010

    3.  10am 2 January 2011 to 4pm 3 January 2011

    4.  And then for each 2 days per week until [the child] commences school in late January 2011.

    Would you please consider our proposal and advise if it is acceptable by return email.

    Yours Faithfully,

    Geoff Donaghy

    G J DONAGHY & COMPANY

1. Unfortunately, the proceedings before the Court today take place in circumstances where both the solicitor for the aunt and the Court have attempted to make telephone contact with the mother and maternal grandmother but where neither have been successful. 

2. The Independent Children’s Lawyer advises the Court that on Tuesday, 21 December 2010, she managed to contact the grandmother, at which time, the ICL Ms Steiner, made the grandmother aware of the orders made on the 20^th and, in broad terms, aware of the fact that an order for stay had been made until Thursday, and an application for further stay foreshadowed.

3. It is by no means clear why neither the Court, nor anyone else, has been able to make contact with either the mother or the maternal grandmother but, as Ms Steiner advises the Court, telephone contact with either or both of those parties has been historically somewhat sporadic. 

4. Whilst not strictly parenting proceedings or an application for a parenting order, the interests of children are directly relevant to applications for a stay. Although Division 12A may not, strictly speaking, be applicable, I considered, in the urgent circumstances otherwise indicated by these reasons, that I should receive information in the manner in which I have just referred to from Ms Steiner and, to a lesser extent, from the solicitor for the aunt, during the course of argument. 

5. The Court, then, is faced with what is, in effect, an ex parte application to extend the order for stay made on 20 December. 

6. It is requested to do so, notwithstanding the fact that a Notice of Appeal has not been filed and notwithstanding the fact that no information of any type is put before the Court by the solicitor for the aunt as to what the prospective grounds of appeal might be.  So much is, to say the very least, contrary to the Rules, and contrary to principle and the ordinary considerations relevant to the grant of a stay.

7. Notwithstanding those very troubling matters and notwithstanding non-compliance (or no apparent attempt at compliance) with the usual procedures set forth clearly in the Rules for the making of ex parte applications which require a party to justify, by reference to the urgency of the matter, why such an application should be considered, I nevertheless considered that it is appropriate to proceed to determine the application in the manner in which I have. 

8. I have done so by asking the solicitor for the aunt to outline what the prospective grounds of appeal would be, to be contained in a formal notice.

9. I have very much in mind the principles which might ultimately be applicable to the exercise of the discretion to grant a stay if and when the proper material relevant to the determination of that application, is put before the Court.

10. Not least, I have in mind what Kirby J said in a parenting case in which an application was made for special leave to appeal to the High Court JRN & IEG (1998) 72 ALJR 1329:

    Should not a stay be granted? The principles which govern the determination of stays in this court are not in doubt. They are stated in Jennings Construction Ltd v Bergundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 … in [Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 464] I drew attention … t 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 cases 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.

11. His Honour referred to the fact that the best interests of children or the welfare of children “should always be in the mind of the Court” when making an order affecting their interests. 

12. His Honour’s comments apply, in my respectful view, notwithstanding the fact that an application for stay is not a parenting order, and, consequentially the statutory provisions relating to the paramountcy of the best interests of children have no direct application.

13. These matters were also referred to in a decision of the Full Court in K & B (2006) 37 Fam LR 1 where the Full court 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 these circumstances the question of the circumstances of the child at the time the orders were made required careful and weighty consideration.

14. In that respect, it is important to point out, as I did in my reasons for judgment, that J has been in the primary care of his aunt (the applicant for the stay), for effectively the whole of his life.  The orders made by me effect a significant change for the child and contemplate his day-to-day care being undertaken by his grandmother and mother. 

15. That consideration is, in my view, directly relevant to, but not necessarily determinative of, whether a stay should be granted today. 

16. It is also important to record the proposed grounds of appeal as outlined by the solicitor for the aunt today. Again, I make the point that the Court heard today, for the first time, what those grounds might be.

17. It is said that the first ground will be that there was error on my part by receiving into evidence comments attributed to Mr P by the report-writer, Ms D (paragraph 46 of the reasons). It is suggested, I gather, that the evidence of Mr P was “not before the Court” and because Mr P was not available for cross-examination his evidence was not tested and that, as a result, there was error on my part in using Mr P’s evidence in the manner in which I did so in the reasons. 

18. It is said that Ground 2 will assert error on my part in my giving “excessive weight” to the evidence of the family report-writer and, in so doing, failing to give appropriate weight to the fact that cross-examination of her made reference to the aunt taking little interest in J’s Aboriginality or educating him in matters relevant to his Aboriginal heritage.  It is said that the aunt and the report-writer “spent a significant amount of time discussing Aboriginal issues” and that this is a matter that was not taken into account, or not taken into account sufficiently, in the reasons. 

19. It is said that Ground 3 will assert error in that Ms D failed to accord sufficient weight to the mother’s partner’s criminal record and history of domestic violence, and that, in turn, I failed to accord sufficient weight to that fact.

20. The next ground, it is said, will assert error in my failing to consider what was described in the submissions as “the assault” by the mother’s partner on the child in July 2010.  The “assault” referred to is, it is said, constituted by actions taken by Mr F in response to what he perceived to be inappropriate sexual movements or actions undertaken by the child toward his sister.  It is said that in failing to consider that aspect, insufficient weight was given to the Primary Considerations and, in particular, that Consideration relating to protection from harm.

21. The final Ground will assert, it is said, error on the basis that insufficient weight was given by me to “the relocation issue”. This was explained as the reasons and orders giving insufficient weight to the fact that the grandmother might relocate to the Coffs Harbour area and, as a result, the aunt, who had been J’s carer for most of his life, would, in reality, spend little time with him. 

22. It is, of course, an invidious position for a trial judge to sit in judgment on the prospect of appeal or to comment upon errors alleged to have been made by him or her.  That, though, is not, at heart the task, or the focus, in applications for a stay. 

23. The discretionary considerations relevant to the granting of a stay relate to the potential merits of asserted errors in seeing a judgment being set aside, balanced against the desirability of orders made after a trial being carried into effect.

24. As things stand today, by reference to the arguments advanced by Mr Donaghy, I have to say that I am less than persuaded of error in the sense just described.  I note, in particular, that all of the potential grounds of appeal, with the possible exception of the first, might be said to relate to weight. 

25. However, I accept, firstly, that the trial was conducted in difficult and unusual circumstances, to which reference is made in the reasons.  Secondly, I accept that, as Mr Donaghy submits, the child has been living with his client for some considerable period of time. 

26. It is not those matters, per se, which persuade me that I should extend the stay for a period of approximately three weeks or so, so much as the fact that the alleged errors and other issues relevant to the exercise of the discretion should be given proper consideration and, by reason of the anomalies in the manner in which the “application” is currently made, I don’t believe that it is possible to do so today. 

27. Obviously, I am also anxious to hear from the mother and grandmother, although their self-represented contributions to the trial were noted in those Reasons.

28. Balancing all of the considerations relevant to the application today, it seems to me appropriate that an opportunity should be afforded to the aunt to put before the Court on oath all such matters as she says are relevant to the exercise of the discretion to grant a stay. Secondly, there should be appropriate consideration of that material and grounds of appeal contained in a properly filed Notice which contain grounds that are properly particularised such as to properly qualify as such.

29. In that respect, Mr Donaghy indicates to the Court that he is able to have the material required in the orders of 20 December filed by 4.00pm on Friday, 14 January.  It is a difficult time of year in which, I accept, solicitors’ offices close and non-usual arrangements are made. That is true not only of solicitors, but also for the parties potentially affected by orders. 

30. It is the combination of those factors that persuade me that I should, notwithstanding the anomalies and unusual features of the procedures adopted in this case and the failure to comply with the Rules of Court with respect to applications including, it needs to be said, the making of applications which are alleged to be urgent and which are alleged should be heard on an ex parte basis, have not been complied with.

31. I have foreshadowed a number of orders which are, of themselves, somewhat unusual: 

    8.For the purposes of the further hearing of the Application for Stay, but only for the purposes of the further hearing of that application:

    a.The filing of the documents referred to in the orders made by Justice Murphy on 20 December 2010 shall be effected by forwarding the documents by email to the Associate to Justice Murphy […] by 4.00pm on 14 January 2011;

    b.Upon email notification from the Associate that the documents have been so filed (sent, in the case of the Respondent and Intervenor to the email […]) an unsealed copy of each of the documents together with the orders of 20 December 2010 and these orders, shall be effective for service upon the Independent Children's Lawyer and each of the mother and the maternal grandmother;

    9.Service of all documents required to be filed by the orders of 20 December 2010 and these orders be effected personally upon the Respondent and Intervener by 4.00pm on 18 January 2011 and, for that purpose (but without limiting that requirement), attempts be made to effect personal service at:

    […, E];

    […, E]; and

    […, E].

    10.The usual rules with respect to filing and service of documents be dispensed with in respect of the Application for Stay, but only for the purpose of the further hearing of the Application pursuant to these orders.

    11.Subsequent to the further hearing of the Application, and irrespective of its outcome, the documents earlier referred to shall be filed in accordance with the Rules and for all future purposes the date of filing of the Notice of Appeal shall be taken to be the date appearing as the filed date of the sealed copy of same.

32. I have an expectation that the solicitor for the aunt will, presumably through the vehicle of a relevant agent, effect personal service and that I should allow the greatest amount of time to him to allow that to occur. 

33. It is because I don’t want there to be any delays in process that might affect that happening, that I have made the unusual orders that I have in respect of filing and service. 

34. I have made it plain during the course of argument and discussion that it will be necessary for the aunt to formally file, and pay any applicable filing fee, after the proceedings in January, irrespective of the result of those proceedings. 

35. For those reasons then, against that unusual background, I make the highly unusual orders to which I have earlier made reference.

36. I note that there are specific proposals for time made in Exhibit 7.  The best I can do in the current circumstances in which I have not heard from the mother or grandmother and where I have no evidence that they are even aware of these specific proposals, is to make it abundantly plain to you, Ms Steiner, and to you, Mr Donaghy, that I have an absolute expectation that there will be full and free time facilitated between J and all – I repeat – all of the parties to these proceedings. 

37. It should not be expected by your client, Mr Donaghy, that the times proposed by her are the times that should occur or the only times that should occur.

38. I delivered, I think, at least one earlier set of reasons in this case prior to the trial where I set out, in what I considered to be very clear terms, the profound concerns that Ms D had about the fact that J, at that time, didn’t even know that he had a mother. 

39. It will be abundantly plain from the trial reasons, none of which apparently related to any prospective appeal, that that relationship should flourish.  I make it as clear as I can that there should be significant time spent by J with all of his carers, including on specific special days such as Christmas Day until this matter is heard in about three weeks time.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 23 December 2010.

Associate: 

Date:  19 January 2011