Parsons & Anor and Masson

[2017] FamCA 1148

FAMILY COURT OF AUSTRALIA

PARSONS AND ANOR & MASSON [2017] FamCA 1148

FAMILY LAW – ORDERS – Stay – Where the applicant mothers applied for a stay of orders made 3 October 2017 [as amended on 30 November 2017] – Where orders were made in relation to Christmas 2017 and term time commencing in 2018 – Where a successful appeal would permit international relocation and reduce time with the respondent  – Where the granting of a stay would not render the appeal nugatory or pointless – Concluded that having constant changes in the arrangements for the children may not be in the children’s best interests – Concluded that if the appeal is successful it may be the children’s last opportunity to spend Christmas in Australia with the respondent father – Ordered that the provision for Christmas holiday time with the respondent father is not suspended – Ordered that until further order the increase in term time arrangements with the respondent father be suspended and the current time arrangements are to continue.

Family Law Rules 2004 (Cth) r 22.11

JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
Clemett & Clemett 1981 FLC 91-013

APPLICANTS: Susan Parsons & Margaret Parson

RESPONDENT: Robert Masson

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3963 of 2015

DATE DELIVERED: 18 December 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 18 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms McMahon

SOLICITOR FOR THE APPLICANTS: McDonald Johnson

COUNSEL FOR THE RESPONDENT: Ms Lawson

SOLICITOR FOR THE RESPONDENT: Steiner Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The operation of Order 10.2 made on 3 October 2017 [as amended on 30 November 2017] is suspended until further order.

2. The operation of Order 10.1 made on 3 October 2017 [as amended on 30 November 2017] continues until further order.

3. The Application in a Case filed 31 October 2017 is otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parsons and Anor & Masson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  SYC3963/2015

Susan Parsons & Margaret Parsons

Applicants

And

Robert Masson

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application by Susan Parsons and Margaret Parsons for a stay of orders made in this Court on 3 October 2017. I will refer to the applicants as Susan and Margaret for the same reasons as I referred to them that way in the reasons for judgment.

2. The children who are the subject of the parenting orders are girls now aged 10 and nine.

3. Susan is the parent and biological mother of both children. Margaret is the parent of the younger child.

4. Robert is the parent and biological father of the older child.

5. The Application in a Case was filed on 9 November 2017 and is supported by two affidavits; a substantial affidavit by Susan Parsons and an affidavit by Margaret Parsons concurring with the contents of Susan Parsons’ affidavit.

6. The application is opposed by the respondent to it, Robert Masson; who again, I will refer to as Robert for the reasons stated in the judgment.

7. The Independent Children's Lawyer (“ICL”) also generally opposes the stay, but raised for consideration a stay of the term time arrangements due to commence in Term 1 2018.

8. The application for a stay sought a global stay of the judgment, which I took to mean all orders made.

9. At the commencement of submissions, counsel for the applicants properly refined the application to a stay of orders relating to this Christmas being Order 10.4.1 and Order 10.2 relating to term time arrangements.

10. Order 10.4.1 is for the children to spend time with Robert from midday on 25 December 2017 to midday on 29 December 2017.

11. The term time arrangements see an increase from four nights a fortnight to five in a pattern that was set out for 2017 of one night on Monday night and alternate weekends from Friday to Monday morning. Order 10.2 sees the same pattern, but extending on the alternate weekend to Tuesday morning.

12. The trial in this matter came before me over five days in March and April 2017.

The Law

1. The law in relation to stays is as follows: 

   There are no criteria in the rules for the granting of a stay.

2. Rule 22.11 of the Family Law Rules 2004 sets out the matters for consideration.

3. The making of a stay is not a parenting order, so best interests of children need not be regarded as paramount. However, the decision of the High Court in 1998 in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 is authority for the proposition that children’s interests must always be in the mind of the Court as third parties affected by the making or refusing of a stay.

4. The filing of a Notice of Appeal does not stay the operation or enforcement of the orders appealed from. In this matter, the appeal was filed by Susan and Margaret on 31 October 2017.

5. The onus rests on the applicants as to why a stay should be granted. There are some considerations raised by authorities which I will look at now.

Considerations

Would the appeal be rendered nugatory or pointless if a stay was not granted?

1. It would not, in my view. And there was no submission to the effect that it would. The appeal relates to asserted errors of law, errors of fact and procedural unfairness. There are 39 grounds of appeal.

2. The granting of the stay would see orders varied.

3. If the stay is not granted, the orders would operate until an appeal and would either be changed or confirmed. Likewise, I do not see that hardship would be caused by the refusal of the stay.

4. The applicants pursued relocation from Australia to New Zealand and wish to continue to do so in their appeal. They also appeal against an increased period of time for the children with Robert, both during term times and in holidays.

5. There are also legal findings about who is a parent and other matters, all of which will have to be dealt with in the appeal.

The entitlement of the other party to an application in a stay

1. In this case the respondent to the appeal is the party entitled to the fruits of the judgment. The relevant part of the orders in that respect is increased time both during term times and in holidays.

2. Findings were made about the strength and importance of the relationship between the children and Robert and with his mother.[1]  Findings were also made about a deficit in the capacity of the otherwise exemplary parents who are the applicants to understand that the children define their family to include Robert and his partner and Robert’s mother, whom they refer to as “Nana”[2] and that they do not define their family just as themselves and their two mothers.

   [1] Reasons for Judgment dated 3/10/2017, par 445

   [2] Reasons for Judgment dated 3/10/2017, par 469

3. Counsel for the respondent correctly submitted that her client should have the benefit of that finding.

Are there merits of the appeal?

1. No concession by the respondent to the appeal was made as to whether or not there was an arguable case, there not having yet been the opportunity to fully analyse all of the grounds of appeal.

2. In my view, there is at least an arguable case. The grounds are not based exclusively about weight given to evidence. There are questions of law and fact which are at least arguable.

Will there be delay in the disposition of the appeal? 

1. The appeal, I am told, is to be heard in March 2018.

2. If the appeal is entirely unsuccessful, the children’s time would progress in accordance with the orders during term and in holiday times. They would remain living in Australia subject to agreement otherwise.

3. If the appeal was successful in whole or in part, the matter could be determined or remitted for further hearing.

Conclusion

1. I consider that the ICL is right to have highlighted the progression to five nights out of 14 as an issue. In the decision in Clemett & Clemett 1981 FLC 91-013, the Court was urged to consider the rights of children in relation to frequent changes in custodial arrangements. This is not such a case in terms of weight. Custodial arrangements at the time that decision was made referred not only to where children live, but the authority to make decisions about them. Nevertheless, not having constant changes in arrangements is an important aspect of children’s best interests.

2. The increase in time in accordance with the orders for the balance of Term 4 has already occurred. There is, in my view, some disadvantage in moving, according to the orders, to five nights per fortnight with the possibility alive of reverting back as a result of a successful appeal to the proposed two nights per fortnight. A delay in progressing to five out of 14 nights is less significant than that potentially disruptive change.

3. In relation to holiday times, holidays are proposed by both the applicants and the respondent in any event, relocation or not. However, provision was made for Christmas and I do not propose to suspend that order.

4. If the appeal in terms of relocation was successful, this would be most likely be the last time the children were in Australia for Christmas. It represents an opportunity to spend time with Robert, his mother, Ms F, known as Nana, and others in Australia. One week out from that day, preparations will have been made.

5. The submission is that the children will not spend the whole day as they have every Christmas of their lives with their mothers. I have no reason to doubt that that is so and will most probably be felt as a sad loss for the mothers. For the reasons given in the judgment, the children will likely very much enjoy contact with Robert, his partner Greg, and members of their respective families as they have done on other occasions as set out in the reasons.

1. Orders are made accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 18 December 2017.

Associate: 

Date:  18 December 2017