Pavlis & Pavlis (No 2)

[2021] FedCFamC2F 617

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Pavlis & Pavlis (No 2) [2021] FedCFamC2F 617

File number(s):	PAC 287 of 2021
Judgment of:	JUDGE STREET
Date of judgment:	17 December 2021
Catchwords:	FAMILY LAW – INTERIM PARENTING – Application to stay interim orders – whether the stay should be granted – whether the refusal to grant stay will make the appeal nugatory – best interests of the children – application for stay dismissed.
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia Act 2021 (Cth), s.38 Federal Circuit and Family Court of Australia Rules 2021 (Cth), rr.10.13, 13.10
Cases cited:	Samaras & Allen [2021] FedCFamC1F 20 Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 House v The King (1936) 55 CLR 499 EJK & TSL (2006) FamCA 730
Division:	Division 2 General Federal Law
Number of paragraphs:	49
Date of hearing:	17 December 2021
Place:	Parramatta
Counsel for the Applicant:	Mr Guterres
Solicitors for the Applicant:	First Choice Family Lawyers
Counsel for the Respondent:	Ms R Dart
Solicitors for the Respondent:	Monardo Legal

ORDERS

SYG 287 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS PAVLIS Applicant
AND:	MR PAVLIS Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	17 DECEMBER 2021

THE COURT ORDERS THAT:

1.The mother’s Application in a Case for a stay filed on 13 December 2021 be dismissed.

2.The application for costs by the respondent father in respect of the application in a case filed13 December 2021 is reserved until the final determination of the proceedings.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Pavlis & Pavlis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is an application in a proceeding filed on 13 December 20121 by the applicant mother for a stay of Order 14 as to the place of changeover and Order 22 as to overnight time of the Orders made by this Court on 3 December 2021 (“the December Orders”). The respondent father opposes the application.

   Principles

2. The statutory power for the granting of the stay is found in s 38 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“The FCFCOA Act”), as well as the power found in r 13.12 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth).

3. The principles governing a stay are not, in substance, in dispute and were identified in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 and, most recently, have been usefully summarised by the Full Court of the Family Court in Samaras & Allen [2021] FedCFamC1F 20 (“Samaras & Allen”). Relevantly, in paragraph 28, 29 and 30 as follows:

   28. The Full Court in Aldridge (supra) set out the following relevant principles relating to an application for a stay of parenting orders:

   (a) The onus to establish a proper basis for the stay is on the applicant for the stay. However, it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;

   (b) A person who has obtained a judgment is entitled to the benefit of that judgment;

   (c) A person who has obtained a judgment is entitled to presume the judgment is correct;

   (d) The mere filing of an appeal is insufficient to grant a stay;

   (e) The bona fides of the applicant;

   (f) A stay may be granted on terms that are fair to all parties - this may involve a Court weighing the balance of convenience and the competing rights of the parties;

   (g) A weighing of the risk that an  appeal  may be rendered nugatory if a  stay  is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a  stay ;

   (h) Some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;

   (i) The desirability of limiting the frequency of any change in a child's living arrangements;

   (j) The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   (k) The best interests of the child the subject of the proceedings are a significant consideration.

   29. Litigation in parenting matters has a special character. Austin J observed in Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251; at [134]:

   It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter parties in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS [1994] HCA 29; (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child's best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child's best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the Court's discretionary judgment about how the child's interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).

   30. For this reason, and in connection with the grant of a stay pending appeal , McClelland DCJ pointed out in Pointer & Cheadle [2020] FamCA 327 at [14] that:

   Consideration of the first four of the criteria adumbrated in Aldridge (supra) is in the context where the focus of the Court in making parenting orders is on the best interests of the child. In that context, as stated by the High Court in M v M (1988) 166 CLR 69 ("M v M") at 75 to 77, "[p]roceedings for custody or access are not disputes inter partes in the ordinary sense of that expression". Accordingly, it may be inappropriate to characterise the outcome of parenting proceedings as a victory for one or other of the parties.

4. The applicant mother’s submissions acknowledged the above principles but advanced a characterisation of a forum stay order not being a parenting order. The applicant mother submitted that the appellate stay order sought should not be characterised as a parenting order and therefore, it was submitted that the best interests of the children are not the paramount consideration, but may merely be relevant. The principles summarised in EJK & TSL (2006) FamCA 730 at [83] concern forum and anti-suit orders and are accordingly distinguishable from the present case.

5. The above principles in Samaras & Allen, supra, and the passages cited as to an appellate stay application arising from a matter under Part VII proceedings are binding and accordingly the paramount consideration remains the relevant child or children’s best interests.

   Slip Rule Contentions

6. There has been a suggestion in the application and applicant mother’s submissions that it was necessary to correct two of the Court’s orders, being Order 15 and Order 24 of the December Orders under the slip rule, r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The parties, at the commence of this hearing, agreed that the suggested correction in relation to Christmas Day in Order 15 of the December Orders was not the subject of a slip rule requirement and it was accepted that Order 15 was correct. The Court would not have been minded to exercise any power in respect of the slip rule in relation to Order 15 because it reflected the intention of the Court. No further issue was advanced by the parties in regard to Order 15.

7. The second slip rule issue concerned the reference to Easter Sunday in Order 24 of the December Orders.  Order 24 referred to Easter Sunday in the parenting matter, where the parties, both of them, are Greek Orthodox.  There was a suggestion advanced by counsel for the applicant mother that this might be confusing to the parties in the context of the order made and that it might not be clear that it applies to the Greek Orthodox Easter Sunday.  Order 6(c), made by the Registrar on 29 April 2021 (“the April Orders”), expressly referred to the Greek Orthodox Easter Sunday.  The Court’s reasons made it clear that the Court was concerned with special days for the parties to the proceedings in the context of making Order 24.  The Court does not regard the suggested clarification to Order 24 by adding the words “Greek Orthodox” so as to make clear that it was referring to the Greek Orthodox Easter Sunday as a necessary clarification.  Order 24 correctly reflects the intention of the Court and applies to the Easter Sunday that has significance to the respective parties. In these circumstances, there is no error or uncertainty in respect of Order 24 and no need to apply the slip rule. 

   The Evidence

8. The applicant mother, accompanying the application in the case, put on an affidavit sworn 10 December 2021, which referred to the children and set out circumstances that occurred following the hearing on 3 December 2021. In the affidavit at [6], the applicant mother described the circumstances as being, “very distressing for me and the children.”  Reference was made at [7] to communications between the respondent father to this application, and the children before the applicant mother had returned home to see the children.  The applicant mother asserted at [6] that the reactions had been “dramatic, extreme and concerning”.  The applicant mother identified at [7] that when she returned home, the children were being cared for by their maternal grandmother and that she found all four children on the phone with the respondent father. 

9. The mother identified at [8] that the two older children had said that the respondent father “was really excited and he was talking really nicely on the phone…” The children then asked the applicant mother what had happened. 

10. The applicant mother is the subject of Order 7 of the April Orders, made by a registrar, not to discuss the substance of the proceedings with the children.  Whilst it is always difficult dealing with children in relation to the existence of parenting orders, the orders bind the parents, not the children.  The form of both the April Orders and December Orders were clear and each had attached a notice in relation to steps that might be taken by the mother in relation to the adjustment necessary in complying with the Court’s orders. 

11. Nothing in the applicant mother’s affidavit identifies either an understanding of the force of the injunction in relation to Order 7 of the April Orders, made by consent by the registrar, in respect of the restraints of discussing the subject matter of the proceedings with the children or an understanding of the annexure to the orders or, indeed, an understanding of the December Orders and its annexure.  That is most unfortunate because it is apparent that, from the applicant mother’s affidavit, that the applicant mother’s communications to the children, effectively ignored Order 7 of the April Orders, and engaged in purporting to explain the December Orders inaccurately and to the detriment not only of the children but also to herself and to the detriment of the respondent father.  Court orders only bind the parties, in this case, the parents to the proceedings, not the children. 

12. The reason why Order 7 of the April Orders was made by the registrar is so that parents are not trying to explain what is happening in the proceedings to the children, either accurately or inaccurately as it is only the parents who must comply with the orders or take steps identified in the annexure. Order 7 prevents the parents either miscommunicating the substance of what the Court has done or aggravating and exciting the children in relation to the orders of the Court, which are binding on the parents.  It is most unfortunate that the applicant mother did not carefully read the April Orders or the December Orders or the annexures and refrain from engaging the children with what is happening in the proceedings. It is more unfortunate that in engaging with the children about what is happening in the proceedings, the applicant mother did not understand either the restraint that operated on her in relation to communications with the children, did not understand the December Orders and did not take any of the steps identified in the annexure to the respective orders.  Whilst I have no doubt that it was in the heat of the moment of the inquiry as to what happened, and with the best blinkered intentions, the applicant mother proceeded to engage in an explanation that was inaccurate, in relation to the December Orders, to the children.  The applicant mother and the respondent father only are bound by the parenting orders. The explanation and the inaccurate explanation of the December Orders should not have been given to the children by the applicant mother.

13. The impact of the erroneous explanation by the applicant mother was no doubt influenced by the applicant mother’s distress, anxiety and ‘complex grief reaction’ as described by Dr AA in the Child Inclusive Assessment at [95], and exacerbated the steps that need to be taken by the applicant mother to comply with the December Orders unless the Court’s orders are stayed.  The Court accepts readily that it was not an intentional departure either from Order 7 of the April Orders, made by the registrar, or an intentional misunderstanding of the December Orders. The engaging in the explanation and the erroneous nature of the explanation is most unfortunate because what it did, which the applicant mother failed to comprehend, was  incorrectly understand the nature of the orders concerning the children and then communicate  her erroneous understanding to the children who are not, themselves, bound by the orders.  It also reflects no reading, by the applicant mother, of the whole of the April Orders or the December Orders or the annexure to the orders, which should all have been read by the mother in understanding and complying with both the April Orders and the December Orders that bind her, and in understanding the steps that she could take, in relation to the counselling bodies that were identified in the annexure to the respective orders, in respect of which, it is not apparent, any step was taken by the applicant mother. 

14. In these unfortunate circumstances, the applicant mother’s affidavit then goes on to purportedly explaining the nature of the December Orders inaccurately to the children. At [8-9] the applicant mother explained “that there had been a ruling of some changes to sleeping arrangements on certain days” and at [9] “that every second fortnight they would be spending time with their father from the conclusion of school on the Friday until the commencement of school on Monday”. The explanation was not correct and should not have occurred.

15. The applicant mother purports to record the reactions of the children in relation to her erroneous explanation of the Court’s December Orders.  The applicant mother identifies at [12] “extreme frustration and anger” by the two older boys.  The inaccurate explanation by the applicant mother was primarily the source of that frustration as well as their desire to identify and protect their mother as well as each other.  It is very important to understand that, as a parent, emotions must be controlled and, as a parent, one must try and ensure that steps are not taken, even well-meaningly, that unintentionally engage in controlling behaviour because of emotions like grief or fear which can, unintentionally, adversely impact on the children and can cause a group reaction of the children, as well as a group aggravated situation. 

16. There is a very broad meaning of child abuse, and it extends to controlling behaviour, which can be unintentional or intentional.  The Court readily accepts that the applicant mother did not engage in any intentional controlling behaviour, but it is apparent from the mother’s affidavit that she did not manage well her emotions, her grief or her reaction to the orders that bind her, and that exposing the children to her emotions, her grief and her reaction, on the face of her affidavit, clearly distressed the children. 

17. The applicant mother has to understand that it is not easy to manage and control emotions, and it involves changing one’s underlying assumptions or expectations.  The underlying assumption inherent in the applicant mother’s reaction is that the children would only be spending time, in terms of the two younger children, with the respondent father in the daytime and not spending overnight time. The December Orders did not accord with her expectations.  It is always important to understand that if parenting orders have been made, they are binding on the parties to the proceedings.  Whatever assumptions or expectations the applicant mother might have had, she has to accommodate the reality of those binding orders, subject to steps of the kind that have taken in these proceedings.  In relation to those assumptions and expectations, the applicant mother needs to take steps to manage her emotions, grief and reactions so as not to expose the children to the behaviour, stress, grief and aggravation of the kind that is set out in her affidavit.

18. The applicant mother has also annexed to her affidavit some supporting material including a letter from Ms CC, Y’s psychologist and Ms DD, Z’s psychologist. These annexures are in relation to the two elder children, and included third-party assertions, in relation to the two younger children and, in particular, W.  For the reasons the Court has identified, it was most unfortunate that that is the course that was taken in response to the inquiry as to what happened and to which the mother should have declined to discuss the orders with the children. Whilst no doubt well-intended, the departure from the restraint in relation to not discussing the subject matter of the proceedings which includes the orders with the children, has given rise to a communication by the applicant mother, which did not reflect the Court’s December Orders, and resulted in an exacerbation in terms of stress, anxiety and adverse reaction by the children, no doubt, in part, reflective of the distress and grief that they observed in their mother. 

19. The applicant mother’s affidavit at [42–45] proceeds to identify what occurred at the changeover at Suburb T and identifies, with all four children attending the changeover, a level of unfortunate distress.  It is well within the mother’s power at the time of changeover to ensure that the two elder children are left with the maternal grandmother or someone else, rather than being taken on mass to attend a changeover in circumstances where it is apparent that there was an elevated level of distress.  The applicant mother has expressed concerns in relation to the younger children engaging in overnight access with the respondent father and has identified steps being taken to appeal the Court’s orders of which will take six to nine months, and of which she will undertake to seek expedition. 

1. The respondent father to this application has also put on an affidavit sworn 16 December 2021, which identifies concerns in relation to the conduct of the applicant mother, and the confrontation with one of the two elder boys over the telephone and adds an observance as to a significant and positive change in the children’s behaviour when they are not in the presence of their mother.  The respondent father did identify that the changeovers have been particularly confronting since commencing at Suburb T McDonald’s, a location at which the respondent father expressly observed at [8] he feels  “safer and less stressed” which he sees as being of benefit for the children. 

2. The respondent father observed at [8] that the changeovers may improve if the mother “actively encouraged and supported” the children to enter his care, “facilitated a quick and easy changeover rather than to remain passive and cause the children unnecessary distress by prolonging the changeover”.

3. The respondent father observed  at [9] that once W and X, who are the two younger children, are in the car and away from their mother, he sees an “immediate change in their personality and attitude” and observed that they “immediately settle and are happy” to be with him. 

4. The respondent father did identify what occurred, to his observation, on 9 December 2021, when he attended the changeover and identified the events that occurred on 10 December 2021 and his proceeding to McDonald’s at Suburb T in the hope that the children would see him and that this did not occur.

5. The respondent father identified at [13] that, on 15 December 2021, he collected the two younger children at McDonald’s Suburb T, and whilst the changeover was “problematic”, as soon as away from the mother, the respondent father observed an “immediate change in the personality and attitude of the children”.  The respondent father expressed at [14] concern as to whether there is a genuine encouragement being made by the applicant mother for the children to spend time with the father. The respondent father expressed concern in relation to a prolonged changeover, and that the children become “emotionally heightened as they perceive that this is how Christella (the mother) expects them to behave”. 

6. The respondent father made reference at [15] to the children at his home, spending time with his parents, their paternal grandparents and observed a concern in relation to the consequences of being deprived of the benefit of the December Orders. The respondent father observed concern at [16] of the further impact it would have on his relationship with the children, which, he contends, would not be in their best interests and that a stay of the orders will reinforce to the children defiance and inappropriate behaviour, which, he believes, has been encouraged and supported, so as to achieve a child controlled outcome.  The respondent father referred to this inhibiting the children being in a settled and normalised parenting regime going forward, which is of obvious benefit and in the best interests of the children. 

   Consideration and Findings

7. Mr Guterres of counsel for the applicant mother, has helpfully provided the Court with written submissions, identifying the background to the proceedings and the applicable law, in relation to which the Court has already referred.  There is a notice of appeal that has been filed, and the grounds have been the subject of some submission, in relation to the potential strength of the appellant challenge.  The appellant challenge is one in relation to which the principles in House v the King (1936) 55 CLR 499 applies, in relation to the matter of discretion, and of course, there must be adequate reasons, notwithstanding the statutory permission of short form reasons in the context of the interim parenting orders made.

8. Mr Guterres advanced first that the appeal, he contends, would be rendered nugatory, if a stay was not granted, and particularly, in relation to the two orders that are the subject of challenge being the changeover location and the overnight time.  The contention advanced in relation to overnight time is that it is likely to adversely impact upon the children’s emotional wellbeing, and that if the Court declines to grant a stay, the mother’s appeal would be rendered nugatory if the outcome of the appeal which it seeks to prevent has been realised.  There is little force in this nugatory contention, as there is obviously a need for a changeover location to be identified and overnight time is also inevitable.  

9. The Court’s reasons identified a level of conflict in the vicinity of the matrimonial home, and the location which was the subject of the proposed changeover by the mother was in the vicinity of the matrimonial home.  The Court identified the expert observation that was made, in relation to the problems identified in relation to the location and the conflict that it appears to have escalated between the parties.  Whilst the Court accepts a possibility of success in relation to that challenge, in respect of the changeover, the Court does not regard the argument as being one in which there was no evidence to support the Court’s reasons, or that the reasons did not adequately address why the order was made.

10. Accordingly, the Court does not regard the grounds, in relation to the changeover, as being ones that could be said to have a strong prospect of success and the Court assesses the prospects of success to be weak.

11. The second challenge is in relation to the time, specifically the overnight time with the two younger children and the respondent father.  It is not appropriate for this Court to descend into each of the arguments that might be advanced on the appeal.  However, it is the case, as the counsel for the respondent father pointed out, that these are not proceedings in which there was not inevitably going to be overnight time spent with the father, with all four children, and the Court did identify and follow the statutory pathway, on the face of its reasons, in relation to the interim parenting orders. The Court also identified the evidence and gave paramountcy to the best interests of the children.

12. The high point of Mr Guterres appellant challenge is the absence of express reference by the Court to the expert’s support for the continued living arrangements, in terms of the two younger children as well at the present time.  The Court clearly took into account that report, and clearly, on the face of its reasons, took into account the whole of the observations made in the making of the December Orders.  It was not necessary for the Court to refer to every piece of evidence, and moreover, it is apparent that the Court identified undertaking, in the circumstance of the notice of risk, an evaluation of whether there was an unacceptable risk, and made findings in that regard which, as counsel for the respondent father points out, are not challenged. The Court assesses the prospects of success in relation to overnight time to also be weak.

13. Whilst it may be that Mr Guterres succeeds on his appellant challenge, the Court again regards the challenge in relation to Order 22 of the December Orders in respect of overnight time as having little prospect of success.  Mr Guterres does identify that the ultimate consideration is the best interests of the children.  That’s a factor to which the Court will return.  It’s suggested by Mr Guterres that the impact over a short period of six to nine months would be remedied by the daytime contact that would take place with the father, and that that daytime is still sufficient to support a meaningful relationship.  The statutory provisions, as the Court correctly identified, require the Court to take into account advancing the significant and meaningful time spent with the father, in circumstances where the Court is not making an order for equal time.

14. The order as to overnight time, in relation to the two younger children, was one in which the Court came to view as in the best interests of those two children, individually, in the context of the evidence before the Court.  Mr Guterres contends that the Court must consider the possible outcomes for the children if the applicant mother’s contentions are correct, in terms of succeeding in the appeal.  If the applicant mother were to succeed in the appeal, it would be still inevitable that there will ultimately be orders made, in due course, for overnight stays for all four children with the father.  The Court’s current orders, the subject of appellate challenge, only concern the two younger children because of the obvious risk that was identified in respect of the two older children.

15. It is most unfortunate that the attitudes of the two older children, on the evidence of the applicant mother, have obviously had an impact on the third son, but it is not appropriate, given the age of the third son, for his views to be ones, communicated through third parties, which should tip the best interests of him, as weighing in the granting of a stay, in respect of the overnight time with his father, which reflects significant and meaningful time for the advancement of this relationship.  The observations made by the respondent father as to the change of attitude of the children when the mother is not there are entirely consistent with the orders that have been made, advancing the best interests of the two younger children, despite the applicant mother’s view to the contrary at this interim stage. Nor should the views of the two older children be allowed to dictate the best interests of the two younger children.

16. The Court is not satisfied that there has been any challenge to the Court’s findings of fact in relation to there being no unacceptable risk in respect of the proposed orders including overnight access for the two younger children.  It is important that the applicant mother take steps not to facilitate a form of group behaviour that seeks to encourage the two older children to assert a role that they do not have in relation to the two younger children.  It is for the applicant mother to comply with the Court’s orders.  It is essential that the applicant mother, with the benefit of the lawyers who are with her now, is taken carefully through the December Orders and to have explained in full each of the orders that have been made and the parenting orders factsheet annexed to the orders including April Orders made by the Registrar.

17. The Court accepts that there has been no relevant delay in the making of the application for a stay and whilst the Court does accept that the applicant mother has a genuine belief in the steps that she has taken for the reasons the Court has just identified, she misconstrued the Court’s orders, erroneously engaged in an explanation to the children that was inaccurate and should not have given an explanation, elevated their distress and anxiety, and did not engage in trying to ensure that she was controlling her emotions and, most importantly of all, did not comprehend that it is for her to comply with the Court’s orders which binds only the parties to the proceedings unless the Court makes an order to the contrary. 

18. To the extent that the applicant mother needs to undertake some assistance, in terms of managing the stress placed upon her to comply with the Court’s orders and to control her emotions, she needs to take steps of the kind that are identified in the annexure to the Court’s orders, which was not done. Further, the applicant mother needs to try and ensure that she has taken steps also in relation to understanding that she needs to shift her expectations or assumptions as to what it is that she can or cannot control and that she is bound by Court orders and to put at the forefront the best interests of each of the children separately.   Hopefully, the applicant mother will have absorbed the force of the observations made by the Court that in the interim, in relation to changeovers, it may well be appropriate, where all four children are not going to the respondent father but only the two younger are to spend time overnight, that she leaves the two older children in the care of their maternal grandmother or another person. 

19. The Court accepts that, in this case, as identified by the Full Court in Samaras & Allen at [28], to which the Court has referred, there is no onus on the party moving for a stay and that, ultimately, it is the best interests of each child that is the paramount consideration in relation to the making of the stay. In relation to the reference to onus, the Court accepts that, in principle, there is no such onus, given the paramount considerations of the child, but it is of considerable importance that there are reasoned December Orders in relation to which the respondent father is entitled to the benefit of that judgment.

20. It is not a judgment just in favour of the respondent father in terms of a location for changeover or in terms of overnight access. It is orders that the Court made on the basis of applying the statutory criteria in order to advance the best interests of the children. Accordingly, it is both the respondent father and the children who are, at the moment, unless the Court grants a stay, entitled to the benefit of that judgment. To the extent relevant, the Court does not start with an assumption that the judgment is incorrect. As the Full Court identified  in Samaras & Allen at [28]:

    (d) The mere filing of an appeal is insufficient to grant a stay. 

21. In relation to the bona fides of the applicant mother, the Court does accept the bona fides but for the reasons expressed, the bona fides are based on misunderstandings by the applicant mother that has exacerbated the circumstances and impacted adversely on the children significantly and most unfortunately. The Court has tried to explain in these reasons the need for the applicant mother to try and understand that when bound by Court orders, steps must be taken to comply with them.  The bona fides of the applicant mother in terms of being a genuine appeal are not in dispute; however, the conduct of the applicant mother is relevant. The applicant mother’s conduct as explained above does not weigh in favour of a stay. 

22. The Court has taken into account, as identified in Samaras & Allen at [28], that a stay can be granted on terms. This is not a case where there has been an argument in relation to terms. The Court must, however, weigh the balance of convenience and the competing rights of the parties. There is an interesting consideration in the context of competing rights. The parties do not have rights in respect of the children, they have parental responsibilities and each of them must adhere to their parental responsibilities to advance the best interests of the children.

23. The use of the expression, “balance of convenience”, and, “competing rights”, is more intended to focus on the impact of the parenting orders in the particular circumstances of the particular case and, most importantly, the balance of convenience in relation to the best interests of the children.  In the present case, this is one where, as the Court has identified, inevitably, there will be overnight access for all four children.  The balance of convenience, in all the circumstances and in advancing a meaningful relationship with the respondent father for the two younger children, and considering the best interest of the children weighs in favour of refusal of a stay. 

24. The risk factor advanced in relation to the appeal being rendered nugatory if a stay is not granted is a generalisation that needs to be understood in the context of each particular case. There may be circumstances in which it is patent that the nature of the order is one where appellate rights will, in fact, be without any impact and the appeal rendered completely nugatory. In the present case, the two older children are undergoing family therapy to advance the significant and meaningful time that they spend with the respondent father which, inevitably, will result in overnight access for the two older children, as well as the two younger children. This is not a case where the concept of the appeal being rendered nugatory has easy application in relation to the overnight access, as overnight access with their father is inevitable in respect of all four children.

25. In relation to the changeover, there was always going to have to be a changeover location and it is difficult to see how an appeal can be said to be rendered nugatory when there is to be a changeover location. The dispute about where the location is, does not mean that this falls within the type of concept in respect of which the proposition of the appeal being rendered nugatory should be given much weight. The Court does accept that if the appeal were to succeed, it is possible that an appellant Court could make different orders in relation to changeover or overnight time or remit the matter for another Court to determine those questions. That does not, however, mean that the appellant rights have been rendered nugatory. It would, however, mean that that there would be a change in the arrangements to which the Court will further refer.

26. The Court does not regard the submissions advanced in relation to the appeal being rendered nugatory as outweighing the other considerations to which the Court has referred and, ultimately, does not outweigh the best interests of the children in respect of which, the Court is of the view, the best interests of the children are not advanced by the granting of a stay.  In relation to the preliminary assessment of the strength of the appeal, the Court has already made reference to the weak strength of the appeal.  Whilst it is not suggested that there is no arguable case, the strength of that arguable case is not one which the Court regards in the present circumstances as weighing in favour of the grant of a stay.

27. The next factor identified in relation to the desirability of limiting the frequency of any change in a child’s living arrangements is a factor that weighs heavily in favour of the refusal of a stay.  As the Court has identified, it is inevitable that all four children will have to spend overnight time with the respondent father to advance significant and meaningful time and to advance the best interests of the children.  To grant a stay would immediately interfere with the living arrangements that the Court has put in place in respect of overnight time for the two younger children which, as the Court has identified, would in any event inevitably be put in place.

28. It would be most unfortunate in these circumstances for a stay to be granted that disrupts the arrangements already now in place, which the Court is satisfied are in the best interests of the two younger children.  The Court has taken into account that the appeal can be heard within six to nine months, and that the applicant mother has identified an intention to seek expedition.  Those steps do not of themselves identify a basis as to why it is in the best interests of the children to grant a stay, and for the reasons the Court has identified, the Court is satisfied it is in the interests of the two younger children to advance a meaningful relationship with their father, and in these circumstances, that includes the overnight access, the subject of the challenged order.

29. Accordingly, the Court does not regard the hearing time in the present case as giving rise to circumstances justifying the grant of a stay. The paramount consideration is identified in the last factor (k) referred to by the Full Court in Samaras & Allen at [28], which, as this Court has identified, is, ultimately, the paramount consideration even on a stay application. This is a case, as the Court has identified in its reasons, where there was not to be equal time, despite joint parental responsibility, and in those circumstances, orders had to be made advancing significant and meaningful time by the children with the father.

1. A stay would interfere with the advancement of that meaningful time for the two younger children, and as the Court has heard and identified, the Court is not satisfied that there is any unacceptable risk, notwithstanding the competing risk notices that have been filed, if the orders of the Court for overnight access remain in place. In these circumstances, the Court is satisfied that the best interests of the children weigh in favour both of refusing a stay in respect of the changeover order and refusing a stay in respect of the overnight access with the father.  For these reasons the stay application is dismissed.

50          I certify that the preceding forty-nine (49) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 December 2021.

Associate:

Dated: 31 January 2022