Noelle and Fournier

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER (NO. 2)

[2007] FamCA 1048

FAMILY LAW – CHILDREN – Stay Application – mother unsuccessfully applied to adjourn final hearing of parenting case and then declined to participate in the balance of proceedings at first instance – determination at first instance made in favour of the father with the effect of reversing a very established status quo in relation to daughters aged 8 and 11 years – mother appeals and seeks stay pending appeal – relevant considerations discussed and applied – distinction drawn between “satisfactory” arrangements pending appeal and children’s best interests – stay refused.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Sampson & Hartnett (No 3) [2007] FamCA 373
Sampson & Hartnett [2007] FamCA 732
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422
Clemett and Clemett (1981) FLC 91-013
House v the King (1936) 55 CLR 499 at 504-505

APPLICANT:

Ms Noelle

RESPONDENT:

Mr Fournier

INDEPENDENT CHILDREN’S LAWYER:

McBain Lawyers

FILE NUMBER:

MLF

6279

2003

DATE DELIVERED:

10 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hoult

SOLICITOR FOR THE APPLICANT:

Donald S Lampe

COUNSEL FOR THE RESPONDENT:

Mr Schetzer

SOLICITOR FOR THE RESPONDENT:

Pearsons Schetzer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McBain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hale & Wakeling

Orders

I dispense with the operation of the Family Law Rules 2004 to such extent as is necessary to enable the mother to rely on her application filed 24 August 2007 (in which she seeks a stay pending appeal of the operation of orders made be me on 23 August 2007) notwithstanding that such application was filed prior to any Notice of Appeal having been filed.
That the mother’s application filed on 24 August 2007 be dismissed.
I dispense with any requirement under the Family Law Rules 2004 for applications or responses to be filed or served in relation to costs and I direct that any dispute over costs be dealt with by written submissions.
That any party wishing to seek costs of or incidental to the mother’s application file and serve submissions in writing to that effect by not later than

28 September 2007 including, but not limited to, an itemised memorandum of the costs sought calculated in accordance with the scale set out in the Family Law Rules 2004.
In the event that any party seeks costs against another party, the party against whom costs are sought file and serve any written submissions in opposition thereto by not later than 15 October 2007.
I direct that my Associate review the file on 22 October 2007 to ascertain whether there is any dispute in relation to costs and, if so, to draw same to my attention.
That the Court certifies that it was reasonable to employ an advocate.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Noelle & Fournier.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6279 of 2003

Ms Noelle

Applicant

And

Mr Fournier

Respondent

REASONS FOR JUDGMENT

Introduction

This matter comes before me as the mother’s application to stay the operation of final parenting orders which I made on 23 August 2007 in relation to S born in April 1996 and T born in June 1996.
The final hearing of the competing applications for final parenting orders commenced before me on Monday 13 August 2007, estimated to take 5 days. The father represented himself. The mother represented herself although a

Mr Gunasekera attended court seeking that I permit him to withdraw as solicitor for the mother, he having only filed a Notice of Ceasing to Act on the proceeding Thursday, 9 August 2007. I did not excuse him until the end of the day. Ms Dellidis of Counsel, appeared on behalf of the independent children’s lawyer.
The father and the independent children’s lawyer were ready to proceed with the final hearing.
The mother sought an adjournment of the final hearing for three reasons. First, she said that she wanted to obtain legal representation. Second, she said that on the preceding Monday her partner, Dr W, had detected a 3 cm lump in her left breast and that she had an appointment to undergo investigative medical procedures, including perhaps a biopsy, an ultrasound and some aspiration, at 11:45am on the Wednesday of the week of the trial. Third, she had been served late with affidavits upon which the father sought to rely.
I refused the mother’s application for an adjournment. My decision in that regard is published as under the case neutral citation [2007] FamCA 845. The mother was in court to hear the reasons for my decision and remained in court until I adjourned for the day at about 3:30pm.
The last hour or so of the sitting on 13 August 2007 was spent organising the trial for which evidence was to commence the following day and to proceed for the rest of the week, save that we would have all of Wednesday off because that was the day that the mother’s pathology testing was to be done.
Following my refusal of the adjournment and in the course of discussions about admissibility of evidence, cross examination and order of witnesses, the mother stated that she would not participate any further in the hearing. She acted as she said and did not participate or attend court for the balance of the hearing on 14 and 16 August 2007 or on the date to which the matter was adjourned for judgment, 23 August 2007.
On 23 August 2007, I handed down my judgment[1] and pronounced final orders. The effect of the orders was to impose an entirely new parenting regime. The orders brought to an end a long standing status quo, whereby the girls had lived with their mother in Melbourne and spent very little time with the father, in favour of a situation where the children were to move to live in Adelaide with the father and his wife and see the mother for more than half of the school holidays and on some weekends during school term time subject to the mother taking advantage of the provisions in the orders for her to do so.
[1][2007] FamCA 875
Because I was satisfied that the mother was unlikely to co-operate with implementation of the orders, I included a recovery order which was stayed until mid-day that day. It was my intention that, if the mother handed the children over voluntarily or permitted them to be collected from school, the recovery order would not be executed. However, she did not attend court to receive judgment and could not be contacted. The independent children’s lawyer ascertained from speaking directly to the children (I think the child S) that neither of the girls were at school and they were at home in the care of a babysitter whilst mother was at work. The mother was at work but could not be contacted by the independent children’s lawyer.
I directed that the independent children’s lawyer advise the girls’ babysitter by telephone of the fact that orders had been made which changed the living arrangements of the children, inviting her to contact the mother and to make arrangements for the children to be collected from her specifying that, in the event that the children were not made available, the Australian Federal Police were authorised to collect them. The independent children’s lawyer did so. However, when later that day he attended the mother’s home with members of Victoria Police and the father, the mother and the children were not present. The independent children’s lawyer still could not contact the mother but did manage to make contact with her partner, Dr W who was advised of the outcome of the case and requested to facilitate the collection of the children. Later in the afternoon, I refused an ex parte oral application by the independent children’s lawyer for an order that a warrant issue in respect of the mother personally so that she could be apprehended. The children could not be located for the balance of 23 August but they were collected from the office of the mother’s solicitor, Mr Donald Lampe, on the afternoon of Friday 24 August 2007 by arrangement between that firm and the Federal Agents assigned to the matter. The father and his wife then left Melbourne with the girls and returned to Adelaide, where the girls remain.
The mother seeks a stay of my final orders pending appeal. The present application was filed on 24 August 2007. In the mother’s affidavit sworn on

24 August 2007
, filed in support of the stay application, she deposes:-
[13]. Whilst I appreciate that the Court has made orders and those orders should be complied with, I wish to appeal the orders of Justice Bennett or at least consider my legal options in relation to an appeal of the order of Justice Bennett.
The matter was first returnable before me on Monday 27 August 2007. By this stage the mother had not served the father and nor had she filed a Notice of Appeal against my orders made on 13 August 2007 (refusing the adjournment) or 23 August 2007 (final parenting orders). I declined to deal with the matter until a Notice of Appeal was filed and indicated that I would be disinclined to deal with it ex parte in any event. I adjourned the stay application to last Friday, 31 August 2007. I also said I would dispense with the operation of such Rules of Court as are necessary to enable the mother to rely on her application filed 24 August 2007, notwithstanding that that it was filed prior to any Notice of Appeal. It appears that I did not pronounce an order to that effect so, to regularise matters, I do so now.
The mother’s Notice of Appeal was filed on 28 August 2007. It is drawn as an appeal solely against my final parenting orders made 23 August 2007 although the majority of the grounds of appeal are directed at my refusal of the mother’s adjournment application on 13 August 2007. More likely than not, the explanation lies in the fact that it appears that the mother’s representatives were not aware that I had made discrete orders on 13 August 2007. I do not know why they were not aware, the reasons would have been sent to the mother at her address for service and, of course, any solicitors on her behalf can inspect the Court file. Sensibly, this was not raised as an issue on the present application, which I now determine as if the mother’s appeal is in respect of both of my orders.
On 31 August 2007, the father was represented. Mr Hoult, of counsel, appeared as counsel for the mother. Mr McBain, formerly the independent children’s lawyer, sat in the body of the court, the order requesting his appointment having been discharged as part of the final orders. I made an order requesting that Victoria Legal Aid re-appoint him as independent children’s lawyer to represent the children’s interests on the stay application. Victoria Legal Aid has actioned the request promptly but, instead of

re-appointing Mr McBain, appointed Mr Andrew Hale, solicitor. Mr Hale is a well respected and very capable practitioner who is frequently involved in proceedings as an independent children’s lawyer but, with respect, he does not have the benefit of Mr McBain’s familiarity with the proceedings. It is unlikely that Mr Hale has established a relationship with S and T whereas Mr McBain is a person with whom the girls are familiar whom they identify as being part of the legal proceedings between their parents. All parties, through their representatives, have expressed their concern to me about the change in representation of the children’s interests. Following my determination of the present application, I assume that Mr Hale’s appointment will cease because the proceedings in which his appointment was requested will be at an end. However, I record here the concern expressed by the parties that, in the event that the Full Court, seeks the involvement of an independent children’s lawyer on the appeal, due consideration be given by Victoria Legal Aid to the re-appointment of Mr McBain in that capacity. In any event, Mr Hale retained Mr McBain to appear on the present application before me.
The mother’s application for a stay specifies certain orders but today she amends that to seek orders that, between now the determination of her appeal, the children reside with her and spend time with the father in accordance with the regime which I have ordered to apply to her time, being paragraphs 4 to 16 of the Order made 23 August 2007.
The father opposes the mother’s application but indicates that he will consent to an expedition of the appeal process.
The independent children’s lawyer opposes the mother’s application but indicates that he will consent to an expedited appeal.

The legal principles

The effect of the mother’s application, if granted, will be to, inter alia, postpone the operation of my parenting Order made 23 August 2007. Whilst it has its origin in the appeal process it is an interim parenting order. The granting of a stay is discretionary but various authorities inform me of matters which it is appropriate for me to take into account in the exercise of my discretion. I will discuss them briefly here.
In the recent decision of Moore J in Sampson & Hartnett (No 3) [2007] FamCA 373 (a copy of which I provided to all representatives at the commencement of today’s hearing), her Honour states:-
[4]. The language of some of the authorities relevant to the discretion to grant or refuse a stay of orders pending appeal are not particularly apt when addressing parenting orders dealing with children’s arrangements [eg. preserving the subject matter of the litigation] but the principles have been adapted for that purpose and are discussed by the Full Court in Clemett and Clemett (1981) FLC 91-013. At p 76,175, Nygh J., who gave the leading judgment, referred to the first instance decision of Carlin and Carlin (1977) FLC 90-320 per Watson SJ. and expressed his agreement with what had been said there; namely:
‘Without in any way fettering discretion it seems to me that I should in this case consider (a) the rights of the children (see section 43); (b) the delays as to appeal; (c) whether refusal of a stay renders a successful appeal nugatory; (d) the hardship to the successful respondent in comparison to the hardship of the appellant; (e) the grounds of appeal.’
[5]. But Clemmet went on to add:
‘Whilst we agree with the considerations as set out….in Carlin…..we must stress that the most important of them is the one listed by him as the first: “the rights of the 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.’
[6]. Mr Lloyd, counsel for the mother, relied on two other cases as a basis for principle. CSN v JBN (1998) FLC 92-833 [Full Court], I think it fair to say, emphasises the importance of the desirability of limiting the frequency of changes for the children in the future, a consideration which did not form part of the trial judge’s decision in that case. Hock Hing v Foster (No 1) (1989) 13 Fam LR 79 is a decision of Kirby P [as he then was] sitting as President of the Supreme court of New South Wales Court of Appeal and again, amongst other things, places some significance on the undesirability of moving a child from the custody of one parent to the other in circumstances where it would be a relatively short time [6 weeks] before the expedited appeal would be heard in that case and the child had been in the care of one parent for 20 months.
[7]. Bearing in mind the best interests of the child is the paramount consideration, these decisions indicate that other relevant considerations, some of which are interlocked or overlap, are these:
·the delay in applying for a stay;
·the bona fides of the applicant in making the application and/or in bringing the appeal;
·the time it is expected the appeal will be heard and determined;
·the merits of the grounds of appeal;
·the child’s arrangements if the stay is granted or is refused;
·the impact, including the frequency, of changes for the child if the stay is granted or is refused;
·whether the child’s present circumstances [pre-order] are satisfactory;
·any hardship suffered by the parties as a result of granting or refusing the stay;
·whether refusing a stay will render a successful appeal nugatory by making it impossible or impracticable to restore the appellant’s position.
Subsequently the Full Court[2], found that a change in circumstances had arisen since her Honour’s refusal, expedited the substantive appeal and allowed an appeal against her Honour’s refusal to grant the stay. In deliberations,

Coleman J (with whom Thackray and Mushin JJ agreed) expressly approved of Moore J’s analysis of the applicable law.
[2] [2007] FamCA 732 (a copy of which was also provided to all representatives)
I, with respect, also adopt Moore J’s analysis and will apply it to a determination of this application.
In determining what is in the best interests of the children I am, as with any

other interim parenting order, guided by the legislative pathway as described by the Full Court in Goode & Goode[3]. The process may be abridged because I made extensive findings at first instance in respect of which the applicant for a stay does not seek to adduce any further evidence at this stage but I still must have regard to the objects of the legislation, the primary considerations found in s 60CC(2) and such of the additional considerations in s 60CC(3) as are relevant.
[3] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422
All parties conceded that the cases to which I have referred encapsulate the legal principles applicable to this case.
In the decision under appeal, I found the arrangements for the children, as they existed prior to me making the orders under appeal, to be arrangements which were inconsistent with the best interests of the children having regard to the considerations in s 60CC(2) and (3). In the present application it was not contended on behalf of the mother that there is a distinction between a best interest scenario under s 60CC and a satisfactory scenario as discussed in Clemett and Clemett[4]. However, I think that there is a distinction between the best interests and satisfactory. The former incorporates the best result that can be achieved in the circumstances of a particular case and the latter represents what could otherwise be referred to as adequate. Accordingly, I proceed on the basis that the best interests of the children is the paramount but not sole consideration and that other relevant considerations include whether the arrangements prior to my final orders were satisfactory or, put another way, would be good enough to get by on until the appeal is determined and/or the final outcome is known.
[4] (1981) FLC 91-013

Evidence

None of the parties adduced, or sought to adduce, evidence as to the best interest considerations relevant to the mother’s application for a stay and for other orders which would impose a new (interim) parenting regime to operate either until further final parenting orders are made or until my orders are operational.

The only evidence adduced by the mother specifically for the stay application is the mother’s affidavit sworn 24 August 2007. Disregarding formal parts, conceded facts and those parts specifically in support of the mother’s application for the stay application to be determined ex parte, it is brief enough to recite in full. Relevantly, the mother deposes:-
[6]. When these proceedings commenced before Justice Bennett on the

13^th August I had lawyers acting for me, being Gunasekera & Associates. However, prior to the commencement of these proceedings Gunasekera & Associates indicated they would no longer act for me. On the first day of this hearing before Justice Bennett I sought an adjournment on the basis that I wished to obtain legal representation and this adjournment application was refused.
[7]. I was distraught as a result of the order of Her Honour and consequently failed to attend for the duration of the proceedings. I realise now that this is a mistake.
[8]. On the 23^rd August this year Her Honour made an order that the children live with the father and also made consequential orders for time for the children to spend with me. Further, the Court made an order for recovery of the children and this is included in paragraph 18 of Her Honour’s orders.
[9]. I was not aware of the nature of this order until around midday on the 23^rd August.
[…]
[12]. I have a copy of the Judgment of Her Honour and I have handed this to Mr. Lampe. However, I appreciate that Mr. Lampe has not been able to digest the Judgement let alone all the material that has been filed in this case. For example, there have been three previous welfare reports prepared in this matter.
[14]. I seek an urgent stay of the orders to enable my Solicitors to read all of the material in this case and prepare an effective stay application to be heard by this Court.
[…]
[16]. This Affidavit, whilst it appears to be brief, will be expanded upon once my Lawyers have had an opportunity to effectively digest all of the material.
[17]. I reiterate that the children have lived with me all of their lives and the orders that Her Honour have made are drastic.
Counsel for the mother did not seek to rely on any affidavit evidence filed on behalf of the mother in the substantive proceedings.
The father did not adduce additional evidence for this application.
The independent children’s lawyer did not seek to adduce further evidence.
I have recited facts above, most of which occurred on 23 and 24 August 2007, for which there is no evidence. They are relevant matters of which I was informed by the independent children’s lawyer (Mr McBain) from the bar table on, or since, 23 August 2007. For the purpose of the present application they are agreed facts.
The transcript of the proceedings on 13 August 2007 was not to hand (because no one has ordered it). Counsel for the mother volunteered that his submissions as to the first four grounds of appeal relied upon by the mother would likely be assisted by having a transcript of the proceedings on 13 August 2007. In lieu of the transcript, some parts of the audio recording of 13 August 2007 were played in court and, otherwise, Mr Hoult said that he would not take issue with my recollections of events as I discussed them with him, at least for the purpose of the present application.

Findings of fact

Any findings of fact that I make on this present application for a stay of my previous orders, are made on a balance of probabilities.
Any statements of fact on this present application are findings of fact.

Discussion

The gist of the mother’s case is that I was wrong not to grant her an adjournment and that the final parenting orders which I went on to make in her absence represent such a drastic change to a long standing status quo that the operation of those orders must be postponed until the Full Court can dispose of her appeal.
I required Counsel for the applicant mother to direct his submissions to the legal principles discussed above and for the father and the independent children’s lawyer to make submissions only on those factors with which they took issue or which they contended were relevant but not covered.
There is no issue concerning any undue delay in the mother’s application for a stay. In fact, it was filed prematurely. The mother’s affidavit in support of the application makes it clear that she was seeking a stay of the recovery order even before it was executed.
It was not contended that the mother has any ulterior purpose in these proceedings. There is no issue as to the bona fides of the applicant on the stay or the appeal. I accept that the mother has an arguable appeal.
I am required to give consideration to the time it is expected that the mother’s appeal will be heard and determined. The mother is required to submit a

pre-argument statement by 18 September 2007. In the ordinary course a Directions Hearing will take place four weeks later, which brings us to last full week in October, 2007. The mother will then be given about 6 weeks to prepare and file the appeal books. It seems, therefore, that in mid-December 2007, the Appeals Registrar would be in a position to allocate this matter to an available listing in the Full Court. By that stage the next sittings will be in February/March 2008 but that is not to say that a listing will necessarily be available having regard to matters already allocated and to be allocated.
It was also conceded by all parties that whilst the determination of the appeal is relevant, I should also take into account consequences, in terms of time, of the appeal being successful. The mother declined to participate in the last two family reports prepared in January and July 2007. She filed a number of affidavits in the week before the trial commenced but that evidence was not tested and the hearing was conducted without her participation. There is a dearth of evidence on the part of the mother. If her appeal succeeds, the most likely outcome is that the matter will have to be re-heard. A re-hearing is likely to require yet another family report and further evidence on behalf of the parties even if only to up date the evidence which they have already filed.
I take into account the very real possibility that the stay for which the mother now applies may, if granted, operate until the determination of the re-hearing of the matter. It would be unreasonable to speculate that could occur any sooner than about 12 months from now and it could be considerably longer.
The above timeframe is absent any application for expedition of the appeal.
Counsel for the mother informed me that no application to expedite the appeal had been filed or drawn and that, at that time, his instructing solicitors had no instructions to prepare such an application. That is a pity because when the matter was before me on 27 August 2007, I mentioned to Mr Hoult that enquiries ought to be made about the availability of hearing time in the forthcoming sittings commencing in Melbourne on 10 or 11 September 2007 or inclusion of the matter in any sittings in Adelaide. I raised the likely time of the appeal listing again on 31 August 2007.
Consequent on enquiries which were made by the parties of the Appeals Registrar on 5 September 2007, counsel for the mother informed me that he is instructed that his client will be filing an application to expedite the appeal in the next day or two with a view to that application being listed before a member of the Appeal Division next week. He is instructed to seek that a Full Court be convened to hear the appeal in October or November 2007. He concedes that these are merely instructions. As matters stand, no transcript has been ordered much less obtained and, as the mother only participated in one-third of the proceedings but was not present for any of the evidence, he and his instructor will be hard pressed to prepare a pre-argument summary without instructions or a transcript. He says that preparations will begin in earnest but conceded that a determination of the present application must be in the context that the appeal has not been expedited.
I consider the merits of the grounds of appeal. In considering the merits I do not purport to prejudge the outcome of the appeal. I also consider the grounds of appeal in the best light possible for the appellant. That does not mean, however, that I must accept that any or all grounds will be made out. The applicant’s notice of appeal sets out a number of grounds of appeal which

I propose to comment on in the order in which they appear.
The first ground is:-
1). That the learned Trial Judge failed to in the proper exercise of her discretion to accede to the Appellant’s application for an adjournment to enable the Appellant to obtain independent legal advice and representation.
Counsel for the mother does not contend that I erred in the exercise of my discretion by taking into account matters which I ought not to have taken into account or by failing to take into account matters which were relevant. What is contended is that my decision not to grant the adjournment was manifestly wrong because I should have afforded the mother an opportunity to obtain legal advice. The mother deposes:-
[6]. When these proceedings commenced before Justice Bennett on the 13^th August I had lawyers acting for me, being Gunasekera & Associates. However, prior to the commencement of these proceedings Gunasekera & Associates indicated they would no longer act for me. On the first day of this hearing before Justice Bennett I sought an adjournment on the basis that I wished to obtain legal representation and this adjournment application was refused.
I raised with Mr Hoult that the mother’s version does not accord with my recollection. Mr Gunasekera did not, as best I recall, withdraw on the morning of the first day of trial. He had filed a Notice of Ceasing to Act on the preceding Thursday, together with the four or so affidavits drawn by him and settled by counsel for the trial. I was informed that the mother had been seeking alternative legal advice on the Tuesday 7 August when she spoke to

Mr Olazego. These matters are canvassed in my reasons for decision delivered on 13 August 2007 in particular, paragraphs 3 to 7 inclusive and paragraph 37. The clear import of the mother’s responses to several matters raised during her application for an adjournment was that she did not want Mr Gunasekera to act for her because she considered that he was not competent and had not given her the correct advice over the years. That was a judgment which the mother is entitled to make. However, it appears that she had decided as early as the preceding Tuesday to change solicitors. That being the case, it was her responsibility to change to a firm of solicitors who could represent her effectively or to be prepared to represent herself.
In the absence of any specific indication from the mother of how my discretion miscarried, I am left to consider that her case must be founded upon the oft quoted principle in the High Court decision in House v the King[5] where Dixon, Evatt and McTeirnan JJ said:
It may not appear how the primary judge has reached the result embodied in his orders, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
I am not persuaded that such a ground can be made out in the circumstances of this case.
[5] (1936) 55 CLR 499 at 504-505
The second ground of appeal is:-
2). That the learned Trial Judge in refusing the Appellant’s application for an adjournment failed to take into account the Appellant’s anxiety regarding her tentative medical condition.
It should be apparent from my reasons delivered on 13 August 2007, that

I accepted the mother’s “tentative medical condition” notwithstanding the lack of evidence in that regard. It is clear at paragraphs 8, 26 and 36 of the reasons that I took her anxiety into account.
Somewhat unexpectedly it is contended by counsel for the mother that I had accorded the mother’s medical condition excessive weight. I infer from the next ground of appeal that the mother continues to maintain that she has a lump in her breast which required investigation. I say that it is a matter of inference because, still, there is no evidence about the condition, the detection of the lump, the referral, the results of the investigations or the extent to which the mother was able to function in the week of the trial evidenced by her attendance at work and the like. Mention of her “tentative medical condition” is also conspicuously absent from her affidavit in support of the application for a stay in which she deposes to her lack of legal representation as being the reason for which she sought an adjournment.
Whilst the mother’s affidavit sworn 24 August 2007 may have been prepared in haste, it contemplates further evidence being adduced. In particular:-
[14]. I seek an urgent stay of the orders to enable my Solicitors to read all of the material in this case and prepare an effective stay application to be heard by this Court.
[…]
[16]. This Affidavit, whilst it appears to be brief, will be expanded upon once my Lawyers have had an opportunity to effectively digest all of the material.
However the mother adduces no further evidence in the present application. As counsel for the father submitted, it is now a month since the mother detected the lump in her left breast and a week and a half since she filed an application for the stay. She has had more than adequate time to put on evidence in relation to her medical condition and/or the sequence of events pertaining to it leading up to the trial and her alleged incapacity. She has not done so.
In the context of the mother’s application for a stay, I cannot identify how my acceptance of the mother’s “tentative medical condition” caused my discretion to miscarry.
The third ground of appeal is:-
3). That the learned Trial Judge did not explain to the Appellant that the Court would assisted by evidence as to her current medical health status and anxiety and the impact this would have on the mother presenting her case before the court and on her ability to make reasoned Judgments.
The merits of this ground are not apparent to me in the absence of the mother adducing evidence for the present application in relation to “her current medical health status and anxiety and the impact that this would have [had] on the mother presenting her case before the court and on her ability to make reasoned judgments”.
As indicated, I accepted the mother’s statements about her tentative medical illness. That is why the court did not sit on this matter on the Wednesday of the week of the trial. I did not explain to her that she may assisted by obtaining evidence about her anxiety and the extent to which she may be impaired in the conduct of her proceedings. However, even with the attention of the mother’s practitioners clearly focused on this issue since at least the 24^th of August 2007, no such evidence is adduced now. Mr Hoult contended that such evidence may be adduced on the appeal (presumably in the context of an application to admit further evidence). However, in the context of the present application I can only infer that such evidence as may be available to the mother and those that advise the mother does not assist the mother’s case before me.
The mother appeared lucid on 13 August 2007. She conversed with relative ease and was fairly clear in expressing her views. For example, in the context of me asking the mother whether she wanted the trial to start on the afternoon of 13 August 2007 or at 10am the following day, the mother responded:-
“I don’t know I will only go ahead with this matter on my own terms and with legal representation[6]”.
[6] the relevant part of the audio recording was played in court for the current proceeding
The fourth ground of appeal is:-
4).That the learned Trial Judge failed to explain to the Appellant that non participation in the proceedings may have the ultimate effect of the Respondent’s application being successful.
Counsel for the mother contends that the mother’s level of anxiety on

13 August 2007
was such that the mother failed to comprehend the significance of the proceedings and the implication of the orders that could be made in the event that she failed to participate at the hearing.
This is a ground that I am unable to assess favourably in the context of the present application in the absence of any expert evidence as to the mother’s level of anxiety and the affect of any such anxiety upon her level of functioning. Before leaving my consideration of the apparent merit of this ground, I note that on various occasions on 13 August 2007, the mother referred to the matter proceeding without her on an “undefended” basis. Variously, our discussion included the interchanges to the following effect:-
a)The mother: “I thought this case was about the kids not me I have not actually heard that I have been a bad mother to the girls … I am not in the right mind to sit and come and listen to what’s happening I would not be in the right mind. I would rather just go on with the case on an undefended basis”.
b)I stated to the mother that, in the event that she chose not to participate in the proceedings, I would take the mother’s participation into account and that it would reflect on the discharge by her of her responsibilities in relation to the children. I suggested that she only needed to read the family reports to find out that the principal criticism of her parenting was her apparent inability or refusal by her to permit the children to have a meaningful relationship with the father and that one purpose of the trial was to determine whether that was so.
c)I addressed her, “do not be under any misapprehension that your failure to appear or that your failure to participation will result in anything other than final orders”.
d)The mother said that she objected to the reports because “lots of things are taken out of context”. I said that was why she had an opportunity to cross examine the author of the reports, Ms B, to which the mother said “I am not capable I don’t know the law”. I said “you have had a long time to get prepared for this hearing, all you have to do is ask questions, the independent children’s lawyer will I expect ask questions in a fair and even handed manner which will get any responses favourable to you but nobody knows your case as well as you do”.
e)I asked the mother whether she wanted the matter to proceed that afternoon or wished to spend the rest of the afternoon organising her case. The mother informed me “I can not proceed with this matter without counsel”. I indicted that I would adjourn until 10am the following morning to enable her to get counsel but that “you should be prepared to run the matter yourself. If you are not here the matter will proceed in your absence.
f)In the context of the independent children’s lawyer having made application to have an Adelaide based legal practitioner be cross examined by telephone, I asked the mother if she had any objection and the mother responded “I have no problems your Honour because I will not partake, I would rather leave it, my presence is not going to make no changes”. I addressed her that: “it is a matter for you I think that you are significantly underestimating yourself but that is something that I can not be satisfied on the evidence if you are not here tomorrow”.
The mother’s fifth ground of appeal is:-
5). The learned Trial Judge failed to explain to the Appellant the weight that may or may not be accorded to the Appellant’s affidavit evidence if the Appellant did not participate in the proceedings.

I understood it to be conceded by Mr Hoult that this ground would appear to lack merit having regard to the fact that I had discussed evidence with the mother variously but including following interchanges and discussions:-
a)I stated: “If you fail to attend Court and your witnesses are not available for cross examination the risk that you run is that I will treat their evidence as being untested and not give it the same degree of weight that I would and do give to people that come to Court and can be asked questions and are tested … so that does not put your case in a very good position.”
b)“If you are not here the matter will proceed in your absence … it also means that if you do not attend you will not be able to run the fairly obvious case which is that, for some reason you may not have facilitated a relationship between the children and the father in the past but that you would do so in the future. If you are not here to say that no one will run the case for you, in fact your absence will speak volumes, that is, show me fairly clearly that you won’t do it in the future.”
c)
I enquired of the mother whether she required a particular witness for cross examination being the person who had supervised some time that the father had spent with the children. The mother responded “I’m going to leave that to my solicitor in the future because if we are ever going to appeal this case I can’t take no position at this stage because

I don’t understand the legal procedures.” I informed the mother “well if you don’t accept her evidence you get to ask her questions it is not a difficult procedure and you can have all afternoon and Mr Gunasekera (her former solicitor) is still siting next to you”.
The sixth and final ground of appeal is:
6). The learned trial Judge failed to give appropriate weight to:
a) The fact that the children have lived with the Appellant off (sic) [all] of their lives.
b) The father’s attitude to parenting.
c) The impact on the children of a change of in their living arrangements.
d) The respondent’s move to [regional Victoria] in 2005 and Adelaide in 2006.
e) Cultural issues relating to the Appellant and her lack of understanding of the Australian legal system.
f) The fact that the children spent time with the husband in April and June 2007.
This is the only ground of appeal which is directed to the substantive proceeding. It is expressed to be in six parts. It appears that the mother will argue that the outcome of the case is not sustainable given the body of evidence which was before the Court and my assessment of that evidence.
Paragraphs 150, 151, 155, 156 and 161 of my reasons for judgment are relevant to grounds 6(a) and 6(c) and I elsewhere discussed the father’s attitude to parenting such as at paragraphs 178, 179, 193 to 196.
The father’s evidence about going to regional Victoria (paragraphs 58 and 59 of my reasons) and Adelaide (paragraphs 81 to 86 of my reasons) was not challenged at trial and I accepted it, as should be evident from paragraphs 193 to 195 of my reasons for judgment and more generally from paragraphs 131 and 132 of my reasons.
I assessed the level of co-operation rendered by the mother in the context of the children spending time with the father in April and June 2007, as should be obvious in paragraph 166 of my reasons for judgment and elsewhere.
I considered cultural issues pertaining to the children in the context of

s 60CC(3)(g). In the present application, the mother does not adduce or identify any evidence about cultural matters which she contends ought to have been taken into account by me or would or could have been before the court had she stayed and participated in the hearing.
As to the mother’s “lack of understanding of the Australian legal system”. The mother has had extensive proceedings in this court.
On 29 March 2007 the mother failed to appear at a telephone mention convened to confirm the readiness of the matter for trial fixed for 19 April 2007. I ordered, inter alia, that if the mother failed to appear at the final hearing then the other parties would have leave to apply to proceed on an undefended basis. On 19 April 2007 the mother did appear and with counsel but the matter was only resolved on an interim basis. On 13 August 2007, the mother freely used the terms “undefended basis”, “unopposed” and “appeal” in appropriate context.
There was also frequent reference by the mother during her adjournment application to s 60CC. On the Thursday of the week preceding the final hearing, the mother’s partner (who was also present with her in court on

13 August 2007
) discussed the significance of s 60CC, on oath, as is referred to at paragraph 173 of my reasons for judgment.
My assessment of the mother is that she is an intelligent woman who holds a responsible position as a lecturer in nursing. She is comfortably enough equipped and experienced to understand that if she did not participate in the proceedings or appear to put her case, my determination may be unfavourable to her.
Having seen and heard the mother and entered into discussion with the mother on 13 August 2007, I am far from persuaded that she lacks a necessary understanding of our legal processes such as would render her incapable of proceeding with her own case or understanding the consequences of a failure to present a case.
I adopt, with respect, Moore J’s statement in Sampson & Hartnett (No 3)[7] that an assessment by the trial judge of “the merits of the appeal … may seem to be a difficult factor …, but of course it is to be approached with a fresh look at the reasons and the readiness to objectively identify a legal argument in light of the grounds foreshadowed”. That is what I have attempted to do in the present case. However, when I look at the grounds of appeal individually none impress me as strong. When I look at the grounds cumulatively, they do not improve. However, absent an application to expedite the appeal, the appellate process has only just begun. For whatever reason, transcript has not even been ordered much less examined with an eye to error on my part. My assessment of the merits of the appeal (as currently framed) is a factor to which I am not prepared to accord significant weight in my determination of the present application.
[7][2007] FamCA 373, paragraph 19
It was conceded by counsel for the mother that hardship to the parties and the potential for the appeal to be rendered nugatory were not factors relevant to my determination of the present application.
I consider the best interests of the children.
There were discussions and submissions in relation to the considerations in

s 60CC (2) and (3), the relevant parts of which overlapped with the discussion of whether the children’s arrangements prior to my final orders were satisfactory and what the arrangements there would be for the children if the stay is refused or granted.
Very significantly it was conceded by counsel for the mother in the present application that “we don’t say that there are unsatisfactory arrangements for the children in the father’s household”.
The mother does not contend that her failure to participate in the substantive proceedings precluded her from putting relevant evidence before the court or that there are facts which I have not taken into account. She does not adduce evidence touching on best interest considerations in support of her application for a stay or the imposition of new interim parenting orders to operate until my final parenting orders are revived or her appeal is allowed and, perhaps, alternative final parenting orders are made. Hence, for the present application, my assessment of a number of the relevant best interest considerations involves matters about which I made factual findings at the trial.
Counsel for the mother did not seek to address me on the views of the children (s 60CC(3)(a)), the nature of the girls’ relationships with each of the parents or others (s 60CC(3)(b)), the capacity of the parents to meet the girls’ needs

(s 60CC(3)(f)), the children’s maturity and background (s 60CC(3)(g)), family violence (s 60CC(3)(j) & (k)) or, most notably, parental responsibility

(s 60CC(3)(i)) and the willingness of each parent to facilitate and encourage the girls’ relationship with the other parent (s 60CC(3)(c)).
It was conceded by the mother that the impact, including the frequency, of changes for the girls is equivalent if the stay is refused or granted.
If a stay is refused the girls will continue to reside in Adelaide with their father, to attend school there and see their mother for most of each school term holiday and some of the long summer school vacation as well as have regular contact with her by telephone and such other time as the mother seeks to take advantage of given the orders that she can elect to take weekends in Melbourne or Adelaide during term time. I have found those arrangements to be the best arrangements which can be put in place for the children on the evidence presented in this case. I also found that it was necessary to move the children as soon possible.
I found that it was unsatisfactory for the girls to remain living with the mother for a further five weeks.
The evidence of the family consultant, which I discuss at paragraph 152 of my reasons for judgment, was that a period of three months would be an unacceptable time for the children to remain in the mother’s household prior to the children going to live with the father. Given my earlier assessment of the time in which this matter can be concluded, I must assume that if I grant a stay, the children would remain in the mother’s household for well in excess of

3 months.
I have made adverse findings in relation to the mother’s parenting of the girls. They were not findings made in a vacuum, it was my assessment of evidence including evidence of conduct by the mother. In the context of the present application the mother has elected not to adduce any evidence about what circumstances within her home would be different from those which I found to exist at the time of the trial. Those circumstances were ascertained, at least in part, from evidence given by the children’s teacher who has contact with the girls on a day to day basis and the family consultant, Ms B, who saw the girls in late June 2007. During the last assessment process, the family consultant confirmed that her assessment of the apparently co-dependent and emotionally damaging relationship between S and the mother (discussed at paragraph 136 to 141 of the reasons). However, I was also informed by the material filed on behalf of the mother, such as the material which I evaluated at paragraphs 106 and 213 to 215 and 71 to 73 of my reasons for judgment.
If I granted a stay now, the children would return to that environment for an indeterminate number of months, if not a year, pending the determination of any appeal and, assuming the appeal is successful, re-hearing. I have found that the best interests of the girls is to have a home base with the father from which they can spend time and communicate with the mother on a predictable, regular and frequent basis.
There was no dispute that they already have a strong relationship with the mother. Before it is too late, the girls need to consolidate the positive relationship which they have with the father which, I have found to be, is a relationship which the mother has not only failed to encourage and promote but that she has sought to undermine and to sabotage.
The relationship which the girls will have with the father when they live primarily with him and his wife will be qualitively different from the nature of the relationship which they could have with him if they merely spend time in his household on a holiday basis.
In the context of the final disposition of the matter I considered whether a viable alternative would be to leave the children residing primarily in the mother’s household but order that they spend most of their school holidays with their father[8]. That is precisely what the mother now proposes would occur by the postponement of the final orders and imposition of the regime of time and communication which I have put in place for the girls to have with her but she now applies for them to have with the father. At the final hearing,
[8] Reasons for judgment delivered on 23 August 2007, paragraphs 147, 148 and 203

I concluded that it was not viable or in the best interests of the girls to permit them to continue to reside primarily in the mother’s household even with a regime of time and communication which the Court could enforce. This was principally because I was satisfied that the mother was not prepared to facilitate or encourage the children’s relationship with the father. Part of my reasons stated :-
[144]. The family consultant made the following observations in her final report:-
There appears have been no issues with the quality or style of

[the father’s] parenting. Although alleged, there is no evidence that the children have ever been at risk from their father. He presented on al three occasions when interviewed as a loving, caring father. Why then has he not been allowed to share his daughters’ loves and contribute to their emotional well being? Perhaps part of the answer lies in [the mother’s] experience and memories of an unhappy marriage. She stated with honesty during interviews for the first Family Report that she had never loved [the father], and she believed implicitly that he married only to beget children, implying that he never loved her either, a point which he vehemently denied.
What followed the separation seems to have been a passionate and single minded desire to remove the children’s father from their lives. [The mother] has re partnered on at least two occasions and encouraged or insisted that the girls call those men “dad”. Not only would this be resulting in a sense of confusion for the girls, but it is completely emotionally destabilizing and grossly unfair. The Consultant made this comment in the first report with reference to

Mr [E] – [the mother’s] first partner, and apparently history is repeating itself with her second known partner, [Dr W], it also remains unclear whether or not [the mother] has any intention of nurturing in the girls a sense of belonging to their Cameroon culture. Every child has the basic right to maintain and develop links with their cultural heritage.
Two years have passed since the Consultant first met the girls which equates to approximately twenty percent of their lives. They have spent time with their father nine times in four years. The Court has attempted to rectify the situation by making appropriate Orders to allow [the father] to increase his time with his children. However, [the mother] has historically totally disregarded Court Orders, with apparent impunity, and there is absolutely no evidence to suggest that she will voluntarily alter her behaviour in the future.
This Consultant stated in the last report in September 2006 that “given the failure of the last Court Order, one would be reluctant to recommend a repeat of a slow incremental contact plan again, and

[the father’s] application to have the children live with him, and see their mother on a regular basis is not without merit. Perhaps it might be the only way that the court can ensure that the children have access to their father”. In the Consultant’s opinion, the question now before the Court is not whether the children’s time with their father should be increased, but whether or not they should live with their father in Adelaide.
[145] I accept the family consultant’s opinion and accord it considerable weight. Like the family consultant, I can not fix on any reasonable expectation that the mother’s refusal to permit the children to have a relationship with the father will change into the future. If she wanted to impart that message, then she should have participated in this hearing. She should have welcomed the opportunity to see the family consultant in June 2007. She should not, for instance, have contacted the school after the girls’ mid-term reports had been released and, again, tried to change the family name by which they are known from the family name of the father to her grandfather’s name.
[146] I have considered how the mother’s failure to facilitate and encourage a close and continuing relationship between the children and the father will impact on the girls in the future. I conclude that if the girls remain living with the mother, they will not be able to have a close and continuing relationship with the father.
In the context of whether I ought to have delayed the changeover between households by five weeks to permit the participation of S in a school musical I made the following finding:-
[156] … I do not accept that no significant damage can be done over the next 5 weeks such as would further erode the girls’ ability to consolidate their relationship with the father. In my view, a further 5 weeks after this decision is not merely a prolongation of a dynamic which has existed over the last 4 years. I am confident that the time between the pronouncement of my orders and the change in living arrangements will be qualitatively different to what the girls have previously experienced with the mother. My assessment of the mother in court (not on oath) is that she does not expect that there will be a change in the living arrangements of the girls. It follows that she will not have prepared herself, let alone them, for that significant change. I am satisfied that the mother has done all that she can to erase and undermine the girls having a meaningful relationship with the father up until now. I conclude that it is more likely than not that, when the mother is faced with a determination that [S and T] will be living for most of the time in Adelaide, her determination to frustrate any smooth transition for the children will result in a multiplication and intensification of effort directed at undermining any happiness which the girls can have with the father and his wife in the immediate, short and long term. I know it is a harsh finding but it is one to which I have given much thought.
If I grant the stay and impose the parenting regime for which the mother now applies and her appeal fails, absent any application based on a change of circumstances, the regime set out in final orders would then be implemented. However that will be an indeterminate time away and, I am satisfied, that at that stage, it is likely to be too late. The operation of orders can be put on hold but the perceptions and experiences of children can’t be stayed. In real terms, during the period for which my final parenting orders are postponed, there will be nothing to moderate or rectify the deficit which I have found to exist in the mother’s parenting capacity, vis a vis, her ability or preparedness to permit a meaningful relationship between the girls and the father.
I also accept the submission of the independent children’s lawyer to the effect that the change which has been brought about by the recent implementation of my orders is going to benefit to T educationally in a way that cannot happen at D School, being the school she attended when she lived with the mother. My findings in that respect are set out in paragraph 161 of the reasons. If I were to grant the stay, T would be deprived of that benefit which would be an unsatisfactory outcome for her.
Having regard to my earlier findings and the evidence adduced on the current application (such as it is), I am comfortably satisfied that the arrangements to which the children would be returned if I granted the stay are neither satisfactory within the meaning of Clemmet’s case nor consistent with the best interests of the children. In other words, the arrangements for the children in the mother’s household are not satisfactory or good enough to get by on until the appeal is determined.

Conclusion

I have no doubt that the mother wants to be reinstated as the parent with whom the children live. However, in the context of the present application, the mother has not constructed a case which I am able to assess favourably in light of the paramount consideration of the best interests of the children or any of the other considerations discussed above.
For the above reasons, I dismiss the mother’s application.

I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 10 September 2007

[2007] FamCA 1048

10 September 2007

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Appeal

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Procedural Fairness

Stay of Proceedings