Partridge and Kennedy (No. 2)

[2010] FamCA 1185

FAMILY COURT OF AUSTRALIA

PARTRIDGE & KENNEDY (NO. 2) [2010] FamCA 1185

FAMILY LAW – ORDERS – STAY - application for a stay of interim parenting orders – discretion to grant or refuse a stay depends on the circumstances of the case – where refusal to grant a stay may render appeal nugatory – where a stay may negatively impact the child’s relationship with the father – other factors considered and weighed – application for a stay dismissed

Friscioni & Friscioni [2009] FamCAFC 43

Legal Aid Commission Act 1979 (NSW) s 57

APPLICANT: Ms Kennedy

RESPONDENT: Mr Partridge

FILE NUMBER: (P)SYC 4821 of 2010

DATE DELIVERED: 21 December 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Ryan J

HEARING DATE: 13 December 2010

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT:

Macpherson & Kelley

(Ms Musgrave)

Orders

1. That the mother’s application for a stay of orders made 8 November 2010 is dismissed.

2. Within 28 days the father shall file and serve written submissions in support of his costs application.

3. Within 28 days thereafter the mother shall file and serve written submissions in reply.

4. The father shall make any response to the mother’s submissions within a further 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Partridge and Kennedy(No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: (P)SYC4821 of 2010

Ms Kennedy

Applicant

And

Mr Partridge

Respondent

REASONS FOR JUDGMENT

1. On 8 November 2009 I heard and determined interim parenting applications between the parties.  In short, the orders made provision for the parties’ daughter M, born in March 2005, to begin overnight time with the father commencing 10 January 2011.  There are in place final orders made on 12 April 2006, which, amongst other matters provided the child would be begin overnight time with the father in May 2009.  That has not happened.  My orders also altered the collection point from where the mother would receive the child from the father and, in the period prior to 10 January 2011 to an extent increased the frequency of the child’s weekend time with the father.

2. On 22 November 2010 the mother filed a Notice of Appeal.  The order she seeks is: 

   That the orders made 8 November 2010 be made void and replaced by the interim orders of 25 October 2010 then that the matter be heard again by a different Magistrate allowing cross examination of witnesses and introduction of other evidence. 

3. On 6 December 2010 the mother filed an Application in a Case seeking a stay.  The orders sought by her in her stay application are: 

   1.That Orders made on 8 November 2010 by Justice Ryan are stayed pending the outcome of Appeal filed 12 November 2010.

   2.That Orders made on 8 November 2010 by Justice Ryan are replaced with Orders made 25 October 2010 by Justice Boland.

   3.I would like to get back the Order made 25 October 2010 by Justice Boland.

4. Reference to Boland J should be reference to Ainslie-Wallace J. 

5. On 25 October 2010, by consent, Ainslie-Wallace J made the following orders:

   UPON APPLICATION made to the Court AND UPON HEARING the legal representatives for the parties PENDING FURTHER ORDER AND BY CONSENT IT IS ORDERED:

   1.That order 4(e) of the Orders made 12 April 2006 amended 5 June 2006 and 26 September 2006 be suspended.

   2.That the Father to have contact with [the child] as follows:-

   (i)Each alternate Saturday and Sunday from 9.30 am to 6.30 pm on Saturday and 9.00 am to 6.00 pm on Sunday commencing on 6th November 2010.

   (ii)For the purpose of giving effect to this Order the Father shall collect and return [the child] from [F Markets, L].

   3.That the Respondent Mother to immediately provide to the Father the current landline telephone number (noting the Mother has provided No. …) for the residence of [the child] and all or any change to the landline telephone number.

   4.That the Father be permitted to telephone [the child] on the landline telephone provided pursuant to Order 3 between 6.30 pm and 7.00 pm on Monday and Wednesday of each week and the Mother shall ensure [the child] is available and encouraged to receive such telephone calls.

   5.That the Mother be and is hereby restrained from having [the child] attend upon any psychologist or psychology clinic or counsellor without an order of this Court or the written consent of the Husband.

   6.That the Father's Amended Applications for Contravention filed 18 October 2010 and variation of Orders made on 12 April 2006 and amended on 5 June 2006 and 26 September 2006 filed on 16 September 2010 be stood over until 2 November 2010.

   7.That the Mother's Response to the Father's Application for variation of Orders filed 24 September 2010 be stood over until 2 November 2010.

   8.That the parties' costs of and incidental to the Applications pursuant to Orders 6 and 7 be reserved.

6. Notified of the stay application, I directed that it be listed for hearing at 2.15 pm on 13 December 2010.  Because I heard this matter in Sydney and had returned to my home registry, the hearing was set up to occur by video link between Newcastle and Sydney.  In listing the matter for 13 December 2010, I considered this gave both parties sufficient time to prepare for the stay hearing.  The father attempted to file a response to the mother’s stay application and affidavit on 10 December 2010.  His documents were rejected because they offended the rule in relation to the cut off time for filing documents prior to a hearing.  As the matter had been brought on with short notice to the father, I would have anticipated compliance with this rule would be dispensed with.  In any event, it was not and the father was given leave to file his response and affidavit in Court.  The mother relied on an affidavit in reply to the father’s affidavit which was sworn by her on 13 December 2010.  She was given leave to file that affidavit in Court.

7. In any event, the father seeks the dismissal of the stay application and costs. 

8. At the stay hearing, the mother appeared unrepresented.  Although she did not request it, when I directed her stay application be listed I asked the registry to make a Japanese interpreter available.  The mother requested that her partner J join her at the bar table.  I allowed him to do so.  The majority of the hearing occurred without the mother seeking assistance from the interpreter.  As was plain on the last occasion, when the mother corrected the interpreter as he translated her words from Japanese to English, the mother’s command of spoken English is sound.  Her written outline of case document filed in this hearing demonstrates also that she has a sound grasp of written English. 

The applicable law

1. A stay is not ordered as a matter of right.  A ground for it must be established and the discretion to grant or refuse a stay will depend on the circumstances of the particular case. 

2. In Friscioni & Friscioni [2009] FamCAFC 43 the Full Court considered an appeal against a refusal to grant a stay of parenting orders. In dismissing an appeal against a refusal to grant a stay, their Honours set out the principles relevant to such an application. Their Honours said:

   53.This is an appeal against a discretionary judgment and in determining such an appeal there is a strong presumption in favour of the correctness of the decision.  The limits on interference by an appellant court with such a judgment are well established in the authorities.  It is not enough that the appeal court considers that, if it had been in the position of the court below, it would have reached a different outcome.  It must be established that there has been some error made in exercising the discretion.  It may be shown that there has not been a proper exercise of judicial discretion if in making the decision the primary judge acted upon a wrong principle; was guided or affected by extraneous or irrelevant matters, was mistaken as to the facts, did not take into account some material consideration or gave inadequate weight to relevant considerations.  It may not appear how the result embodied in the order was reached, but if upon the facts the result is unreasonable or plainly unjust it may be inferred that in some way there has been a failure properly to exercise the judicial discretion: House v The King (1936) 55 CLR 499 (per Dixon, Evatt and McTiernan JJ) at 504-5.

   54.There can be no stay of proceedings or the enforcement of a decree pending an appeal unless an order is made to the contrary and the mere filing of an appeal is not sufficient to ground a stay.  This recognises that the successful litigant should not be deprived of the benefit of the litigation unless it is appropriate: Kelly and Kelly (1981) FLC 91-007 per Fogarty J. Thus the making of an order for a stay is wholly discretionary and the circumstances that would justify an order for a stay depend on the circumstances of each case. The onus of establishing a proper basis for a stay is on the applicant for the stay. Factors that may be taken into account in exercising the discretion are well settled and include what has been described as a “substantial factor” Trahn and Long (No 2) (supra) namely whether there is a real risk that to deny a stay would render a successful appeal nugatory or would make it impossible or impractical to restore the situation.  However the hardship that would be suffered by an unsuccessful applicant for stay must be weighed against the hardship that would otherwise be suffered by the unsuccessful respondent to the application.  In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 Brennan J at 685 included as factors relevant to take into account “whether the grant of a stay will cause loss to the respondent; and …where the balance of convenience lies”: see also De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678 per Gummow J. Other considerations are the grounds and merits of the appeal, any undue delay between the time the original order was made and the filing of the application for a stay; the bona fides of the applicant for the stay and the length of time it will take for the appeal to be heard: Carlin and Carlin (1977) FLC 90-320; Kelly v Kelly (supra); Clemett and Clemett (supra); Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (supra); De Lewinski v Director General, New South Wales Department of Community Services (supra); and JRN & KEN v IEG & BLG (supra).  Some of the factors have been variously expressed.  For example, in Clemett Nygh J identified as a factor whether the appeal was not a mere delaying tactic.  In Trahn and Long (No 2) in relation to consideration of the merits of the appeal the Full Court described it as “some preliminary assessment of the strength of the proposed appeal-whether the appellant has an arguable case”: see also JRN & KEN v IEG & BLG (supra) per Kirby J at 1332.

   55.In cases where a stay is sought of parenting orders pending an appeal against those orders it has long been recognised that there are other factors that may be relevant.  This was recognised by Kirby J in JRN & KEN v IEG & BLG (supra) who said at 1332: “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”.  In other words it is important to consider the “consequences for a child of granting or refusing a stay”: EJK and TSL (No. 2) (supra) per the Full Court (Coleman, May and Boland JJ) and K and B (2006) FLC 93-288 at 32 per the Full Court (Warnick, May and Boland JJ).

   56.In Clemett and Clemett (supra) Nygh J said at 76,175:

   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.

   57.In Trahn and Long (No 2) (supra) the Full Court included as “principles” the following:

   ·the desirability of limiting the frequency of any change in a child’s living arrangements may support the granting of a stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings.

   It may be that these are not separate factors but that in the context of consideration of the best interests of a child it is desirable to limit the frequency of changes in the living arrangements for a child.

Grounds of appeal

1. The grounds of appeal are set out below:

   1.I made my initial application for legal aid on Sept 2010. However these application was refused because it requested assistance for both contravention and child access actions bought by the applicant father. The letter of decline indicated that I should reapply for assistance regarding the child access matters only. On Monday 4 October 2010 I rang the Legal Aid Commission and was advised that I could not apply for the same matter twice and that the correct procedure was to file an appeal under Section 56 Legal Aid Commission Act 1979. I lodged an appeal on 7 October. The Family Law Magistrate was told that the appeal was was being reviewed by the legal aid review committee however chose to disregard LEGAL AID COMMISSION ACT 1979 – SECT 57 which states that

   Where it appears to a court or tribunal, on any information before it:

   (a)      that a party to any proceedings before the court or tribunal:

   (i)has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

   (ii)intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

   (b)that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

   (c)that there are no special circumstances that prevent it from doing so,

   The court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

   The Applicant Father’s solicitor has been allowed to minapulate court hearing which has had two effects.

   Firstly the legal aid commission have not been able to respond to provide assistance in such a short period of time

   Secondly because I have limited financial resources and legal aid has not been decided I can only afford legal representation for one hearing.  The courts willingness to accommodiate the request of the Applicant Father’s Solicitor at short notice and allowing her to change the subject matter of the hearings from contravention to child access has made it impossible to organise private legal representation effeciently.  One the one occasion I could afford legal representation I chose to use it for a contravention matter which was scheduled for 25 October 2010 hoping that legal aid representation could be arranged by the time child access issues were scheduled for hearing.  However the Applicant Father was allowed to Stay the contravention hearing and present child access issue.  On this case I was represented and sensible court orders were issued so that the father would resume daytime access while legal aid was sorted out.  On 8 November the Applicant Father’s solicitor was allowed to take advantage of the fact that I was not legally represented to obtain final orders with out due process.  I am generally concerned that every request made by the Applicant Father’s solicitor was accepted by Justice Ryan and that I was not consultated or allowed to response to any of these requests.  It was clear that Justice Ryan and the Applicant Father’s solicitor were known to each other by the informal discussions that took place.

   Even when an emergency solicitor was found by a legal aid support group after the hearing had commenced Justice Ryan would not allow him time to prepare.  When he requested a short adjournment so he could read the file Justice Ryan gave him just 10 mins, however after receiving his unprepared submission she did not give her ruling until 4 hours later.  I submit this was unfair as he could have represented me in a more satisfactory manner if he had been allowed to prepare properly.

   Therefore I was not properly represented which was a denial of Natural Justice and resulted the issuing or orders that I believe are not in the best interests of my child.

   2.The magistrate did not give adequate consideration to the fact that English is not my native language and when I requested assistance from a friend who could help me form my arguments under the Mechenzie rule it was denied.

   3.On occasions the magistrate allowed Applicant Father’s solicitor to interrupt my interpreter when he was speaking.  On one occasion she completed my sentence differently to the words I had said to the interpreter and in a way that altered the meaning of what I had said to the Applicant Father’s advantage.

   4.The matter was listed as contravention hearing however the magistrate allowed Applicant Father’s solicitor to request orders for Child Access issues.  This meant I was not prepared when the Applicant Father’s solicitor was.

   5.Magistrate has allowed interim orders made that include overnight visitation.  Therefore, not allowing cross examination of witnesses or the fair introduction of other evidence on the subject of overnight visitation until after the visitation has taken place.

   6.My child has been denied the opportunity to be represented by an Independent Child lawyer.

   7.Family Court Consultant report said overnight access should not be attempted for some considerable time.  I was not allowed to cross examine consultant to determine what period ‘some considerable time’ was.

   8.Interim orders had been made on 25 October 2010 that excluded overnight visitation to allow full examination (including cross examination of psychologist) to be heard.  Magistrate overruled these interim orders to allow orders granting overnight visitation based only on affidavit evidence at the Applicant Father’s solicitors request.

   9.The magistrate did not give adequate consideration to previous AVO in this matter.  The magistrate has not correctly evaluated the concept that children are best placed in shared care against the safety and well being of the child.  Her decision has placed the child at risk.

   10.The magistrate critised me for not encouraging my five year old daughter to sleep at the Applicant Father’s house even though I had made my best effort which was difficult because he had abused my other daughter when she was five.  This was why all my children were included on the AVO.

   11.The magistrates orders do not have regard to possible psychological harm to my child or that the Applicant Father’s previous behaviour was psychologically damaging to my other children.  The Applicant Father provided no evidence that he had taken steps to control his behaviour.

   12.The magistrate did not give adequate consideration to opinion of the Family Court Consultant.

   13.The maigistrate did not give consideration to the poor attendance record for visitation of the Father.

   14.When determining visitation schedule the magistrate gave consideration to Applicant Father’s work commitments but did not consider my work commitments or my responsabilities to my other children.

   15.When determining visitation schedule the magistrate gave consideration to the Applicant Father’s work commitments but did not consider my work commitments or my responsibilities to my other children.  As previously made known to the court my job requires that I work in the evenings as a [music] teacher.  I work from my home to ensure [the child’s] safety I do not get quality time with her after school during the week.  Under the current orders I get just two days a month of quality time with my daughter this is clearly inequitable.  The father has been consistently been able to avoid all his school holiday and week evening responsibilities and I have been forced to compensate for his shortfall as a parent.  These orders continue to allow this to happen and increase his portion of quality time.  This is clearly unfair and against the concept of equal responsibility parenting.

   16.The current court orders have no regard for the physical and mental safety of my other daughter when I need to pick [the child] up from [C] which is near to the fathers residence.  She is just eleven and psychologically effected by the behaviour of the Applicant Father.  She is scared to be near the Applicant father so I believe it is unreasonable to take her to the exchange venue at [C].  I now have to leave my eleven year old child unattended for two hours or force her to the psychological stress of meeting the man who was abusive to her.

Discussion

1. Before considering these in sufficient detail to enable the Court to form a preliminary assessment of the merits of the appeal, as I said to the mother during the hearing of her stay application, matters claimed by her in relation to the Court’s conduct and processes are, to the Court’s knowledge wrong.  For example, in ground 1 where the mother claims I refused her solicitor’s request for time to prepare and “when he requested a short adjournment so he could read the file Justice Ryan gave him just 10 minutes”, is wrong.  In this hearing I understood the mother to agree that the transcript was likely to show her solicitor requested half an hour to prepare.  His request was granted and indeed because of other court business, he had longer than 30 minutes before the matter was called on. 

2. Next, the mother asserts the father’s solicitors were able to manipulate the Court processes beforehand, including on 25 October 2010 so that he could stay the contravention hearing and present child access issues.  The record discloses the mother was represented on 25 October 2010 and orders made that day were entered by consent.  In addition, on each occasion the matter had been before the Court both matters were listed, as they were on 8 November 2010.  In relation to the mother’s claim, “I am generally concerned that every request made by the applicant father’s solicitor was accepted by Justice Ryan and that I was not consulted or allowed to respond to any of these requests.  It was clear that Justice Ryan and the applicant father’s solicitor were known to each other by the informal discussions that took place”.  The record will show that other than for brief opening exchanges when the matter was first called on 8 November 2010 the mother was represented.  Again, the transcript will speak for itself.  I note no application was made on 8 November 2010 that I disqualify myself.  The nature of the exchanges between bench and bar table, are matters of record and I do not accept others would characterise these in the manner alleged by the mother. 

3. The balance of ground 1 alleges error in refusing to grant the mother’s application to adjourn the hearing. When the matter came before me, this was the third time the father’s application in a case and contravention applications were listed for hearing. Having read the considerable affidavit material filed by each of the parties identified in their case outline documents, it was apparent there was a serious issue which involved a child not spending time with a parent in accordance with orders. So that it is clear, the mother had, without authority stopped the child’s daytime contact to the father on 20 June 2010 and it was only after he commenced these proceedings she agreed to re-establish day visits. The orders, as has been mentioned, provided overnight time should have commenced in May 2009. In circumstances where both parties had filed a significant volume of material, there was a Children’s and Issues Assessment and a report from a psychologist the mother obtained, I was very concerned the child’s interests required the matter proceed. When the matter commenced the mother indicated she wished the proceedings to be adjourned pending decision by the Legal Aid Review Committee, her application for legal aid having been refused. The mother was informed her application for an adjournment was unlikely, on the information then known to the Court, to be granted. However, the matter was stood down and, when the proceedings resumed Mr Maspero appeared for the mother. He had no prior knowledge of the matter. Mr Maspero made submissions in support of the mother’s adjournment application and, with respect, approached the issue as if the Court was obligated to adjourn the hearing. In my view, the submissions made by the mother and Mr Maspero failed to adequately address s 57 of the Legal Aid Commission Act.

4. Ground 2 complains the mother, for whom Japanese is her first language, was denied assistance from a McKenzie Friend.  The mother was assisted by an interpreter and, from when the matter was stood down, a lawyer.

5. Ground 3 alleges that the father’s solicitor was allowed to interrupt the mother’s interpreter and complete the mother’s sentence.  I do not recall this occurring and it will be a matter for the transcript.

6. Ground 4 asserts that the father’s contravention application and not child access issues were listed for hearing.  According to the mother this meant she was not prepared when the applicant father’s solicitor was.  The record discloses this submission is wrong in fact.  Both contravention and interim parenting applications were listed, as they were on each of the prior occasions when this matter was before the Court.

7. Ground 5 complains error because cross-examination of witnesses did not occur, yet orders were made which “allowed interim orders made that include overnight visitation.”  Le Poer Trench J made orders which required overnight visitation commence in May 2009.  Cross-examination is not common in interim proceedings.

8. Ground 6 complains the child has not been represented by an Independent Children’s Lawyer.  The appointment of an Independent Children’s Lawyer is discretionary.  The judges, who considered this matter before listing it for hearing before me evidently, did not consider the child’s interests required the appointment of an Independent Children’s Lawyer.  Nor, was I discomforted determining the matters at issue without an Independent Children’s Lawyer. 

9. Ground 7 complains the mother was denied the opportunity to cross-examine the family consultant.  While I do not recall a request being made for cross-examination, again, I observe, cross-examination on interim applications is rare.

10. Ground 8 asserts the orders made on 25 October 2010 “excluded overnight visitation” prior to cross-examination.  The orders make clear these were interim orders intended to operate until there was a further hearing, which at that stage was anticipated for 2 November 2011. 

11. Grounds 9 – 16 assert either failure to consider relevant matters, weight and consideration of irrelevant matters.  When regard is had to the affidavit material, it is difficult to see any of these grounds would be likely to attract appellate intervention.

12. Putting aside the Court’s refusal for the mother’s adjournment application when the grounds are matched with what occurred on 8 November 2010, my knowledge of the evidence and the reasons, I am unable to find they are based on substantial grounds, at least as presently drafted. 

13. In relation to the ground, which asserts error in refusal of the mother’s adjournment application this too raises a matter of discretion, which, in the context with which it was exercised, would seem unlikely but might nonetheless attract appellate intervention.   

14. As for bona fides, I have reservations about the mother’s bona fides and whether her appeal is merely a delay tactic.  As to the latter, I am somewhat disquieted by the increasingly extravagant allegations of risk while, simultaneously the mother seeks orders which would have the child spending unsupervised time with the father.  The mother’s conduct of the stay and the material she relied upon raised serious questions about whether she does support the child spending time with the father overnight and thus the appeal is part of her strategy to delay compliance with orders initially made by Le Poer Trench J and as varied by me.  The inclusion in the grounds of appeal of factual misstatements also raises questions about the mother’s bona fides in bringing the appeal.  My point being if the mother believed she had grounds for an appeal, she would not have presented material in her notice of appeal, which she knows, is untruthful.  Thus, while I cannot find the mother lacks bona fides, that her appeal is more than a delaying tactic is open to question.

15. The mother has not delayed in bringing her appeal or her application for a stay.

16. If the 25 October 2010 orders were continued, refusal of the stay would render a successful appeal nugatory. 

17. However, in consideration of the child’s best interests, two judges have ordered she spend overnight time with the father.  There is hardship to him and not insubstantial risk of harm to him and the child developing a meaningful relationship if the commencement of overnight time is further delayed.  In my reasons, I found the child is not at risk with the father and that “unless positive steps are taken now to progress the child’s time with the father, there is a great risk to the longevity of their relationship and a serious impediment of their relationship becoming one which is meaningful and valuable to the child.   The father’s proposal provides a well paced and sensitive age appropriate response to the child’s situation.” 

18. I do not accept there would be hardship caused to the mother if a stay was refused.  Nor do I accept the mother’s contention the child is at risk if the 8 November 2010 orders operate. 

19. As to when the appeal is likely to be heard, the mother had not made inquiries from the Appeals Registry.  The father’s solicitor had and informed the Court she understood the mother’s appeal would be listed in about 12 months.  This accords with the Court’s understanding.  Although it is feasible the mother could apply for expedition of her appeal, I have reservations about whether such an application would be successful and whether, as an appellant, the mother could be relied upon to do all that is required of her expeditiously.  If, for example, in order to prosecute her appeal the mother is reliant upon her being granted legal aid, clearly, there are matters beyond her control that would stand in the way of her being able to prosecute her appeal expeditiously.

20. When these matters are considered and weighed, it is my view that the stay should be refused.  In saying that, I accept others may assess the mother’s grounds of appeal more favourably to her than has been my assessment.  It may be the case her appeal has greater bona fides than was apparent.  Hardship factors favour the father and child, as does his right to have the benefits of the orders I made.  I would be very concerned for the impact on the child’s relationship with the father were the 8 November 2010 orders stayed.  As I explained in my reasons, even potentially reverting to day only contact between the child and father would “deny the child the opportunity to experience her father in a real parenting role”.  Thus, although refusing the mother’s application for a stay may render her appeal nugatory the weight of the factors falls in favour of her application being dismissed.  In my view, this delivers the best outcome for the child.

21. Written submissions as to costs of the stay application will be directed. 

22. For these reasons, I make the orders identified at the beginning of this judgment.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 November 2010.

Associate: 

Date:  21 December 2010