Peter and Elspeth (Stay Application)

[2007] FamCA 95

FAMILY COURT OF AUSTRALIA

PETER & ELSPETH (STAY APPLICATION) [2007] FamCA 95

Family Law – stay application

APPLICANT: PETER

RESPONDENT: ELSPETH

INDEPENDENT CHILDREN’S LAWYER: Mr FITZGERALD and MR WATERHOUSE

FILE NUMBER: HBF 150 of 2003

DATE DELIVERED: 19 February 2007

PLACE DELIVERED: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 19 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGuire

COUNSEL FOR THE RESPONDENT: Mr Ackman QC

SOLICITOR FOR THE RESPONDENT: Mr Murray

Orders

1. THAT order 3(b) made 21 December 2006 be stayed pending determination of the appeal in respect of such order, or abandonment of such appeal or further order of this Court.

2. THAT the application for stay of order 3 and 4 made 21 December 2006 be dismissed.

3. THAT the oral application by the respondent that the Honourable Justice Benjamin disqualify himself from hearing the contravention application be dismissed.

4. THAT the oral application made by the respondent to adjourn the contravention application (pending the outcome of an appeal) be dismissed.

5. THAT the costs of these applications be reserved pending the appeal or for a period of twenty eight days thereafter.

   IT IS CERTIFIED

6. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBF 150  of 2003

PETER

Applicant

And

ELSPETH

Respondent

REASONS FOR JUDGMENT

1. The first application before me today, and I suspect one of many, is the order in which the various applications are to be dealt with

2. There are before me, as I understand it, three applications.  Firstly, there is an application for stay, secondly, contravention applications, and thirdly a recovery order application.

3. This matter was before me on 29 January 2007 when I indicated that this would be the order in which I would deal with the matter.  I made no formal order at that time and, as Mr Fitzgerald properly submitted, it was not the subject of argument as to what order should be in place.  So in terms of the suggestion that I am functus officio in respect of that matter I do not accept that argument.  Mr Fitzgerald then made submissions about procedure and the procedural consideration and the evidential consideration.

4. In terms of the stay, it is not granted automatically.  In exercising the discretion the judicial officer must consider whether the stay will render the appeal nugatory, the merits of the appeal hardship, whether there was any delay in seeking the stay, the bona fides of the applicant, time delays, changes in living arrangements, the children's best interest is not the paramount consideration but is a significant factor, and other matters.

5. It seems to me that the stay application ought to be heard first, because the determination of the stay will impact on if not the prima facie level of the contravention, if it is allowed to proceed or if it does proceed, but certainly the question of reasonable excuse in relation to a contravention.

6. In terms of the evidence, I will not be making any findings with regard to the stay application because it is in essence undertaken on the papers, however of course I will be making findings and must make findings in terms of the contravention application.  It seems appropriate that the stay is dealt with before the contravention and other application.

7. Accordingly I reject the submission that the contravention is to be heard before the stay.  I now move to the stay.

8. This is an application by E, the mother to stay orders 3 and 4 made by me on 21 December 2006, those being orders that L aged 16, J aged 13 and C aged 8 spend time with their father.  Order 3 relates to L and order 4 relates to C and J.

9. That application for stay is opposed by P, the children's father, and the independent children's lawyer has expressed no view with regard to C and J, but has expressed a view that there ought to be a stay with regard to L.

10. The material before me is as follows.  First of all there are my reasons delivered when the orders were made, the orders themselves, and an affidavit of the wife sworn 31 January 2007 in which she observes firstly that when the orders were made L stood up and stated that she would not spend time with her father.  It is perhaps a little artificial in terms of the use of the words, where the wife says, "without prompting or encouragement" for my recollection was that I invited the children at some stage to speak.  Although initially they did not, L subsequently did and expressed a view that she did not want to spend time with her father.

11. The other evidence is that the children have subsequently declined (on the evidence of the wife) to spend time with the father.

12. In her second affidavit, the wife gives evidence of significant media attention which has been given to this matter and sets out the detail of some of that media attention.

13. I have before me exhibit ICL1, the notice of grounds of appeal. The first four grounds of the appeal relate to the determination I have made under section 61DA of the Family Law Act which order is not the subject of the stay application and which I ought not to concern myself.

14. Counsel for the independent children's lawyer observes that the significant grounds as he understands them in relation to the particular stay affidavit are set out at 7, 8, 9 and 10 which deals with the weight that I have given to the views of the children.

15. As I said during the course of argument, the strength of those grounds must be accorded the weight with regard to the age of the various children.  I note that the youngest child is aged eight and the eldest is aged 16 and that perhaps explains why the independent children's lawyer has made the submissions that he has.

16. The other significant ground is that it is asserted that in my reasons I have given too much weight to the court expert and that my general acceptance of the evidence of the husband was not open to me in the circumstances of this case.

17. The question of the stay application is a matter where the onus rests with the person seeking the stay; in this case that is the wife.

18. The wife's counsel referred me to the 1998 decision of CSN v JBN in terms of some of the principles I ought to apply.  Fortunately, over the last year the question of stay has occupied the attention of the Full Court in a number of cases, not the least of which is K v B (2006) FLC 93288, the B v B (2006) FLC 876 and EJK v TSL No 2 (2006) FLC 806.

19. Her Honour Justice Boland in a recent paper set out in very handy form some of the principles the court ought to take into account when considering stay applications in matters such as these and I quote:

    “The guiding principles in dealing with a stay application in a parenting matter include the following:

    i)The stay will not be granted automatically but must be considered by the judicial office in the exercise of his or her discretion.

    ii)In the exercise of discretion, judicial officer will consider whether the refusal of stay will render the successful appeal nugatory, the merits of the appeal, any hardship which would be suffered by the applicant or respondent by granting or refusing the stay, whether there has been any deal in seeking the delay, the bona fides of the applicant, the time delay until the appeal can be heard and that changes in living arrangements for a child should be limited as much as possible”.

20. I interpose that that is the principle which Mr Ackman addressed me in relation to CSN v JBN.

21. I go on to dot point 3:

    iii)The child's best interest is not the paramount consideration but will ordinarily be a very significant factor.

    iv)Some adaptation of the rules governing stays should be made to take into account the interests of the child.

    v)It may be necessary for a judicial officer to have regard to the circumstances of the child at the time the stay application is made.

22. I thank her Honour because that is a very handy check list for a judicial officer in determining stays in children's matters.

23. The first issue which I need to address my mind is whether the refusal of the stay will render the successful appeal nugatory.

24. The factual basis in this matter is that the two younger children had from time to time spent time with the husband, and I made findings in respect of that although that had diminished significantly in the 12 or 18 months prior to the hearing.  They did spend time with the husband, I think I found, between the October 2006 hearing and the November‑December 2006 hearing.

25. The effect of the orders that I made is simply that the children will continue, (albeit with some more time), to spend time with the husband.

26. That is somewhat different in terms of L who had not seen the husband for some time prior to the commencement of the hearing in October 2006 but saw the husband one or two occasions subsequent to that time.

27. It was argued that by granting the stay it operates almost as a negative nugatory determination, that a determination had been made and that I ought to give effect to that determination otherwise the whole point of the litigation would be lost; in other words, the children would not see their father. 

28. That argument has some merit bearing and I take judicial notice that this appeal is unlikely to be heard and determined within two or three months.  I anticipate and have judicial notice that it could take longer than that time, in fact, it could take substantially longer than that time.

29. As to the merits of the appeal, the basis upon which the appeal seems to be presented is that as trial judge my findings of fact were correct, but I did not give as sufficient weight to the views of the children and in particular L, and I gave too much weight to the evidence of Mr CH. That seems to be the primary thrust, although I take into account all of the submissions of counsel.

30. In terms of the appeal with regard to L, there is some significant merit in relation to the assessment that ground of appeal as my determination that a child who has turned 16 ought to spend time with her father contrary to her expressed strong views is a matter which will occupy the time of the Full Court.

31. In terms of the hardship that would be suffered by the applicant or the respondent by granting or refusing the stay, both parties would be arguing that they will suffer hardship by whichever decision I make.  It seems to me I ought to be more interested to reflect on the interests of the children rather than the hardship of the parents.

32. The bona fides of the applicant, one thing which has struck me as I heard the evidence during the course of this difficult hearing was the bona fides of both parents coming from a different perspective, and I hope that was reflected in my reasons.  I do not doubt that the applicant is bona fide in terms of her appeal, whether it is successful or not is a different matter, but I make no criticism of the wife.

33. The time delay I have dealt with.  As to the changes in the living arrangements, the time that I have put in place, particularly for the younger children to spend with their father is not a significant time, this is not a change of residence.  This is simply the children being given the opportunity to have or continue to have a meaningful relationship with one of their parents.

34. It is significant perhaps in terms of L with regard to the school holiday time, but otherwise my order was that she spends two hours with her father each alternate Saturday is not a significantly long period of time.

35. The children's best interest is not the paramount consideration, but it is a significant factor. There is a distinction between an interim hearing and a final hearing and I have heard all of the evidence. All of the evidence has been tested. I do not accept Mr Ackman's submission with regard to Cowling's case. I think Goode v Goode has made it absolutely clear, that “status quo” is a factor, but it is one of a number of factors to be dealt with under section 60CC(2) and (3) of the Family Law Act.

36. Applying those principles to the material that is before me, it seems to me that there ought not to be a stay with regard to C and J.  Accordingly I propose to dismiss the stay application insofar as it relates to C and J.  I will be granting a stay in relation to order 3(b) with regard to L and school holiday time, but I intend to leave in place an order that L spend two hours each alternate weekend during school term for the reasons that I have given and for the reasons set out in my judgment.

37. There is an application before me, an oral application, that I ought to disqualify myself from determining the contravention proceedings on a number of basis.  The first of which is that I heard the primary proceedings and made a determination adverse to that of the wife and I made findings with which the wife disagrees.

38. Secondly was that I have but a few minutes ago determined the stay application and made observations about evidence subsequent to that time, although if my memory serves me well I made no particular findings but simply reflected on that evidence.  I certainly took into account, but I do not know that I made any contentious findings in respect of such evidence.

39. The contravention application was listed for today to be dealt with by me after the determination of the stay application.  The wife at that time was represented by counsel.  She offered no objection at that time to the matter proceeding before me.  Whichever judicial officer determines the contravention application, they will have before them my findings in relation to the first instance which still stand and will continue to stand until such time as the Full Court deals with them.

40. The independent children's lawyer properly set out the principles that I ought to take into account which are conveniently set out in Johnson v Johnson number 3(2000) FLC 93041.  I accept that I am obliged to be robust in terms of such application and understand my role.

41. The basis of the submission on behalf of the wife is that as I have made determinations on the hearing that would in essence influence me in the determination of the contravention.  Whichever judicial officer hears this matter will not doubt have before them those determinations or is entitled to have before them those determinations.

42. I am not satisfied that an objective bystander would consider that in the circumstances there would have been pre-judgment by me in relation to this matter.  As such, the application for me to disqualify myself is dismissed.

43. The alternative submission was that I ought to stay the hearing of the contravention until the determination of the appeal.

44. There are orders in place.  The majority of those orders have not been stayed and therefore there is no reason why this court cannot expect or be entitled to anticipate that those orders will be complied with.  The fact that there was a subsequent application for stay and that part of the orders were stayed may be a factor in determining whether (if the contravention application comes up to proof), there are reasonable excuses, certainly it is a matter that the wife can put before me.

45. If to leave orders unstayed but to take away the ability of a party to seek remedies for contravention of those orders really gives effect to the stay application as originally sought, and as such, I dismiss that part of the application and I will proceed with the contravention application.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Peter & Elspeth (Stay Application).

I certify that the preceding 45 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              22 February 2007