PETERS & ORTONA (STAY APPLICATION)

[2015] FamCA 390

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA (STAY APPLICATION) [2015] FamCA 390

FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Where the mother applied for a stay of orders pending the determination of her appeal from final parenting and property orders – where the mother did not establish a proper basis for a stay – where it was desirable to limit the frequency of change in the children’s arrangements- where there was no risk of the appeal regarding the property orders being rendered nugatory if a stay was not granted – stay application dismissed – the mother’s application for interim variation of the final parenting orders pending appeal dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Clemett and Clemett (1981) FLC 91-013
Friscioni & Friscioni [2009] FamCAFC 43
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

APPLICANT: Ms Peters

RESPONDENT: Mr Ortona

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 26 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 28 April 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

IT IS ORDERED THAT

1. The applicant’s application to stay the final orders made 26 February 2015 is refused.

2. Paragraphs 1 to 11 inclusive and paragraph 13 of the applicant’s Application in a Case filed 9 April 2015 be dismissed.

3. Paragraph 12 of the applicant’s Application in a Case filed 9 April 2015 is withdrawn.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8590 of 2012

Ms Peters

Applicant

And

Mr Ortona

Respondent

REASONS FOR JUDGMENT

1. The applicant mother applies, by way of Application in a Case, for a stay of final parenting and property orders. The final orders were made by me on 26 February 2015 following a 10 day trial. The mother has filed a Notice of Appeal which enlivens the machinery in r 22.11(2) Family Law Rules 2004 (Cth).

2. The children the subject of the parenting orders are B aged 11 and C aged 10.

3. The application to stay the final orders is opposed by the respondent father who was the applicant in the trial.

4. The background of the matter is traversed in the reasons for judgment delivered on 26 February 2015 and need not be repeated.

5. The final parenting orders provide for the father to have sole parental responsibility for the children and for the children to live with him and spend time with the mother on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday, half of school holidays, and for special days.  Prior to final orders, the children lived with the parents on a ‘week about arrangement’.  The mother’s case in the trial was that the ‘week about arrangement’ should be maintained.  Parental responsibility was also in issue.

6. The applicant also sought to make an application for interim variation of the final parenting orders pending the appeal.  She sought a complete reversal of those orders to provide for the children to live with her and spend time with the respondent every second weekend from after school on Friday until the commencement of school on Monday.  She also sought an order for “make-up time” and sole parental responsibility for the children. 

7. The final property orders provided, by consent, for the sale of two garages and the property where the parties had lived together, the payment of commissions, selling costs and the discharge of the mortgages over the properties.  By consent, further orders were made for the payment of the parties’ liabilities and the transfer of a base amount of $41,594.57 from the husband’s interest in his superannuation fund to the wife’s superannuation fund.

8. The dispute between the parties in the trial was about the distribution of the net proceeds of sale of the properties. The final property orders determined that the parties distribute the balance from the proceeds of sale of the properties as to 55 per cent to the wife and 45 per cent to the husband.

9. I refused the stay and dismissed the mother’s Application in a Case on 28 April 2015.  These are my reasons for making those orders.

The application in a case

1. Specifically the applicant sought the following orders:

   1.      That the Family Court orders dated 26 February 2015 be suspended/stay granted;

   2.      The children, [B] born … 2003 and [C],, born … 2005 reside with the mother.  That make-up time of six weeks be provided to the mother;

   3.      Thereafter every second weekend from the end of school Friday until the commencement of school Monday the father has the children;

   4.      Every Wednesday at 6.00pm the children call their father’s mobile;

   5.      Any other time the children request to speak with their father the mother arranges such a call;

   6.      The mother has full parental responsibility of the children;

   7.      The address of the mother be suppressed and not disclosed to the father or third parties;

   8.      The subpoenaed previous information is provided to be viewed by the applicant;

   9.      Due to financial Hardship, I request the transcripts of the trial, dated August 2014 be made available to the applicant;

   10.    All property subject to the property pool not be sold or disposed of until such time the appeal judgment occurs;

   11.    These orders stay in effect until such time further orders are made;

   12.    The Independent Children’s Lawyer Caroline Smith is removed; and

   13.    Any other orders that the court deems appropriate.

LEGAL PRINCIPLES

1. The mere filing of an appeal is not sufficient to ground a stay. Under r 22.11 of the Family Law Rules 2004 (Cth), the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision. However under this rule if a party has appealed against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal relates.

2. The onus to establish a proper basis for the stay of an order is on the applicant for the stay.  The making of an order for a stay is wholly discretionary and the circumstances which would justify an order for a stay depend on the circumstances of each case.

3. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court (Bryant CJ, Boland and Crisford JJ) outlined many of the principles to be applied in determining an application for a stay of orders both in the general law and for parenting proceedings. At [18] the plurality stated the following:

   The authorities stress the discretionary nature of the application which should be determined on its merits.  Principles relevant to this matter include the following:

   ·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;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the bona fides of the applicant;

   ·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;

   ·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;

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   ·the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·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

   ·the best interests of the child the subject of the proceedings are a significant consideration.

4. In Friscioni and Friscioni [2009] FamCAFC 43, the Full Court (Boland, O’Ryan and Le Poer Trench JJ) outlined the relevant principles and stated that in cases where a stay of parenting orders is sought pending an appeal against those orders it has long been recognised that there are other factors that may be relevant. The Full Court referred to Kirby J in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 where he stated:

   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.

5. The Full Court referred to the importance of considering the consequences for a child of granting or refusing a stay. 

6. In Clemett and Clemett (1981) FLC 91-013 Nygh J referred to the welfare of the child as being the paramount consideration in determining whether a stay should be granted (at 76,175). He stated that 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. His Honour was of the view that it will be appropriate to grant a stay of proceedings for at least a short period if the appeal appears to be based on substantial grounds, is not a mere delaying tactic, it can be dealt with in a reasonable time and the present circumstances of the child are satisfactory.

The evidence

1. The applicant relied upon the following documents served on the respondent and filed with the Court:

   ·    Application in a Case filed 9 April 2015; and

   ·    Affidavit of the applicant filed 26 April 2015.

2. The applicant also relied on Exhibit A which was an affidavit of the respondent sworn on 22 February 2013 which the applicant claims was to be filed for the purposes of a Federal Circuit Court proceeding but which was not ultimately filed. 

3. The applicant also relied upon Exhibit B which was a document titled “Family Law Appeals and Review and Evaluation of the Appeal and Review of Family Law Decisions” dated June 1996 to support her application for the respondent or the Court to pay for the costs of obtaining transcripts of the trial. 

4. The applicant was advised by me during the hearing to provide the Registrar docketed with the management of the file with a list of the subpoenaed documents which she wished to view so that her application could be considered and, having been notified that it was her responsibility to fund her own case and obtain transcripts of the trial if required, the applicant was referred to administrative procedures for making application for relevant transcript from the Full Court of this Court regarding her appeal.

5. The applicant ultimately did not press paragraphs 8 and 9 of her application which she chose to pursue administratively.

6. During the hearing, the applicant withdrew her application for the removal of the Independent Children’s Lawyer, being paragraph 12 of her application.

7. The respondent had only received the affidavit of the applicant by email on the preceding Sunday, being two days before the hearing.  However the respondent did not propose to file any material in response to the application, having obtained legal advice, and sought to rely on oral submissions only.

8. The proceedings were heard by way of oral submissions from both parties who were self-represented.  The Independent Children’s Lawyer did not attend or participate in the hearing.

APPLICANT’S GROUNDS OF APPEAL

1. The applicant has appealed the final orders on the following grounds:

   1.The trial Judge failed to take into account some relevant matter:

   Practice and Procedure

   I was not provided information regarding the application to adduce further evidence and to re-open the case.

   On the 30^th of December 2014 Justice Thornton gave direction to the Independent Childrens (sic) Lawyer, Caroline Smith to inform me.

   At no time was I informed, although I requested several times by email to Caroline Smith a copy of the transcript of these proceedings, as well as requesting information.

   It was after the Judgement was made that I received the transcript of these proceedings and hence I have lodged an application of Contempt regarding this misconduct of the Independent Childrens Lawyer, Caroline Smith.

   2.The trial Judge failed to take into account some relevant matter:

   The Independent Childrens Lawyer, Caroline Smith was given further evidence of my domestic violence, a copy of 000 call to police, photographs of injuries, copies of affidavits in support, dental records, copies of Victoria Police records, and correspondence clearly showing [Mr Ortona] as being “controlling” and still committing Family Violence. Caroline Smith, the Independent Childrens Lawyer is now under investigation by legal Aid. All of this evidence should have been provided to Justice Thornton.

   3.The trial Judge failed to take into account some relevant matter:

   An affidavit was given to the Independent childrens Barrister (sic), Mary Agresa and [Mr Ortona] on the first few days of the trial. This affidavit outlined important evidence regarding monetary Loans. This affidavit was not referred to in the property settlement and it holds extreme weight.

The Applicant’s submissions

1. The applicant sought largely to revisit evidence about family violence which had been admitted in the trial and claimed that there was additional evidence which should have been admitted or which was either missing or removed from subpoenaed documents.  She did not address ground 1 of her Notice of Appeal.

2. Amongst other things, the applicant sought to have the final orders stayed, on the basis of historical matters which were part of her litigation in the Federal Circuit Court. This included references to family violence.   Regarding  the final parenting orders,  it was the applicant’s case that Judge Turner in the Federal Circuit Court had granted leave to the respondent to file his affidavit (Exhibit A) in those proceedings on a date when the parties entered into consent orders.  The applicant complained that although leave had been granted to file that affidavit and her solicitors had notified her that the affidavit had been filed, the affidavit had never been filed by the respondent in the Federal Circuit Court.  It was the applicant’s case that if the report writers had been provided with that affidavit, then it would have been clear that the parents had agreed that the children should be interviewed by psychologists.  The applicant stated that the s 11F report which was relied upon by the family consultant was tainted because this affidavit was not provided. 

3. On the other hand, the applicant referred to various inaccuracies in that affidavit (Exhibit A) which included that the parties were not in a de facto relationship in 2000, references to her being intoxicated and violent towards the respondent and references to her having attended Alcoholics Anonymous.  She also complained that the affidavit was inaccurate in relation to when the children moved school in 2010.

4. The applicant submitted that the father misled the Federal Circuit Court by failing to file the affidavit notwithstanding that, according to her, much of the evidence in the affidavit is incorrect.  She submitted that the s 11F report (presumably from the earlier proceedings) suggested that she was “forum shopping” and that this was incorrect and the family consultant in the trial had therefore relied on misinformation.  The applicant pointed out that she disagreed with paragraphs 21, 25, 33, 36, 57 and 72 of the affidavit (Exhibit A) but then submitted that the respondent had deliberately misled the Court by failing to file it.

5. The applicant deposes to 28 contravention applications and 3 contempt of court applications which she has filed against the respondent.  She deposed that these are to be heard before another Judge on 6 May 2015.  In submissions she complained that:

   ·she had been denied access to information from the children’s school since February 2015;

   ·she has been denied telephone calls with the children every Wednesday; and

   ·the respondent has prevented the children from communicating with her via email.

   She conceded that she is spending time with the children on a fortnightly basis in accordance with the final orders.

6. The applicant submitted that she is residing in a women’s refuge and moving to transitional housing and cannot spend time with the children at the refuge and does not have access to a mobile telephone or a landline which the children could telephone.  She indicated that she has the benefit of a friend’s home on weekends to spend time with the children.

7. Without specifying the date of the hearing in the Federal Circuit Court, the applicant deposes to the respondent misleading this Court by failing to file an affidavit in the Federal Circuit Court.

8. The applicant further deposes to a number of files and information being removed from the subpoenaed material at this Court prior to the trial in August 2014.

9. She deposes that the respondent had been seeing a psychologist, Ms TT, regularly since 2005 and that the mental health plans stated that he suffered from ongoing depression from 2005 until 2014.  The applicant deposes that there were references to controlling behaviour, the respondent’s inability to deal with the child B’s behaviour and ongoing verbal and financial abuse towards all family members.

10. Although it is not directly stated, it would appear that the applicant suggests that some material which had been subpoenaed for the trial was removed by the respondent.  However the applicant goes on to depose that the family consultant used this subpoenaed material as a basis for her s 11F report. 

11. The applicant deposes that it is unclear when the file was “removed or tampered with” prior to the trial and it is also unclear whether Dr H and the family consultant actually had access to the full subpoenaed file or parts thereof.

12. The applicant deposes that a psychologist, Ms TT, was unable to comply with a subpoena which was issued and that she is presently under investigation.  The applicant submitted that she made a complaint against that psychologist to the “Australian Psychology Board”.

13. Without particularising her complaint, the applicant also makes complaints that the subpoenaed file of the Department of Human Services has been “tampered with”.  She deposes that important information was removed and that there is “important missing documentation supporting family violence and other conduct” by the respondent.  Without particularising the missing information, the applicant deposes that this subpoenaed information formed a part of the family consultant’s s 11F report.  She deposes:

    Yet it is unclear when the file was tampered with, and whether anyone was privy to the complete file. A further subpoena was not re issued prior to the Family Court Trial, and I am unclear whether anyone was alerted to the fact of the said tampering until after the completion of the Trial.  

Family violence

1. The applicant deposes to various injuries she sustained between 2001 and 2012 resulting from family violence.  She deposes that further evidence by way of the Freedom of Information Act 1982 (Cth) in September 2014, enabled her to gain access to documents which she provided to the Independent Children’s Lawyer. She also refers to her police statement made 25 September 2012 but this statement is not provided. The relevance of this material and how it might differ from the material adduced in evidence by counsel on her behalf during the trial is not clear.

Victoria police subpoenaed documents

1. The applicant deposes that other documents in files provided in response to a subpoena to the Victoria Police appeared to have been tampered with prior to the trial.  The applicant deposes that it is unclear when this file was tampered with and whether or not the family consultant had access to all of the documentation provided pursuant to the subpoena.  The applicant deposes to a number of entries in freedom of information paperwork which she believes are relevant to ongoing family violence which may not have been provided to this Court.

2. The applicant deposes that she obtained a 000 recording of 3 March 2012 which had been lost and provided to the Independent Children’s Lawyer, after the Family Court trial.  Without any explanation of the relevance of this recording, the applicant deposes that the 000 recording is entirely different from the Victoria Police LEAP data entry for that date. 

3. The applicant deposes to an incident in October 2012 at a police station where she was present with the children for changeover when she claims that the following occurred :

   I was taken into a room for some 40 minutes by Acting Sergeant [DE] with [Mr Ortona] being present. It was at the instigation of [Mr Ortona] that this meeting occurred.  The children were sitting outside the door. I was yelled at, verbally abused, called a “fucking scorned woman”, and a number of other profanities. The children could hear everything.  I taped the said incident on my iPhone.  I was also left in the room for a period of time with [Mr Ortona] only present.

   I reported this incident to my then domestic violence worker, [Ms LS], who arranged a meeting with the … Station Commander [DM] on the 18^th of December 2012.  I received a written apology from Victoria Police for this incident.

4. The applicant annexed a copy of the apology “DP-05” to her affidavit and claimed that this is not recorded on the Victoria Police LEAP records. She deposes that the children were upset and crying as a result of this incident.

5. Annexure DP-05 appears to be an email to the applicant from the police station commander DM which states:

   Thank you for bringing your concerns to my attention about the manner in which you had been spoken to by Sgt [DE] during a custody exchange at the … police station. I accept the version of events that you put forward and your concerns have been addressed with member within accepted management practices within Victoria Police.

   As discussed in the meeting held on 18^th of December, station management at [the police station] have an expectation that staff interact with members of the public in a professional manner at all times. I believe that your concerns have been adequately addressed regarding this issue and at this point no further action will be required.

6. The applicant deposes that the Victoria Police LEAP reports did not contain “other contact information” that is relevant to her case.  She annexes “a copy of Invoices provided by [Mr Otona] during the Family Court Trial in August 2012” without further explanation. 

7. The applicant deposes that “It is unclear whether any or all of the other subpoenaed documentation provided to the Family Court has been tampered with”. 

Final property orders

1. The applicant deposes to an inability to obtain legal assistance and to being unable to gain access to any superannuation funds and, further to this, deposes to a contravention application regarding a failure by the respondent to nominate ‘the fund for’ his “superannuation fund split”.          

2. The applicant submitted that the respondent had not made proper disclosure of the “owner builder papers” which he had provided to her solicitors during the course of the trial.  She submitted that the house does not comply with building regulations and that the respondent has devalued the property by failing to comply.

3. She claimed that she required a report on the property to determine “what needs to be spent to bring it up to standard” and that this has a bearing on the distribution of property.

4. The applicant makes further complaints in her affidavit that the respondent’s employer did not comply with a subpoena and that the respondent did not disclose paperwork from his employer and that it is her belief that the Director and Practice Manager of the respondent’s employer, … “deliberately and flagrantly misled the Court by not providing the required information in the said subpoena”. 

5. The applicant submitted that the respondent has never disclosed his true income and referred to his income as an estimated amount in all of his financial statements.  She submitted that due to the behaviour of the respondent she did not receive the appropriate child support payments, was unable to gain spousal maintenance, and the property settlement was not reflective of the respondent’s actual capacity to earn.  She submitted that she was “once again Financially Disadvantaged and economically abused by the [respondent]”.

the respondent’s submission

1. The respondent submitted that the evidence had already been tested in the Federal Circuit Court and this Court.  He denied misleading any court or  failing to disclose any document or his financial circumstances.

2. He submitted that the applicant’s case was a repetition of allegations from previous hearings and highlighted that he had been cross examined by her counsel on all of the allegations of family violence and that the applicant had given evidence in the trial.

3. The respondent stated that he encourages the children to email the mother and that they email her every day. In response to the applicant’s submission about the contravention applications, the respondent stated that the applicant has failed to provide him with her mobile telephone number or a landline telephone number for the children to telephone her but that the applicant has both his mobile telephone number and his landline telephone number which she has not utilised to telephone the children.  The respondent denied that the children have been prevented from communicating via email with the applicant and stated that in fact he had encouraged the children to contact the applicant and to telephone her if they had a telephone number.

4. He argued that the children are settled and excelling at school, there is no absenteeism and they participate in regular extracurricular activities. He described the applicant’s allegations as “venting” by her.

5. He relied on the judgment as being correct and pointed to the agreement between the parties to sell the properties, which was reflected in consent orders. He emphasised that the sale of the properties would provide the applicant with money.

Conclusion

1. There is no evidence in support of the applicant’s proposal that her address be suppressed and not disclosed to the respondent or third parties.  Accordingly that application was dismissed.

Procedural fairness

1. The applicant suggests that documents have been removed from subpoenaed material prior to the trial in this Court and that this prejudiced her case.  However what documents were removed and the relevance of the material is not readily identifiable.   The basis for which the applicant contends that her case was prejudiced is unexplained.

2. The applicant raises issues of discovery affecting spousal maintenance but there was no application for spousal maintenance in the trial.

3. The applicant appears to raise issues about the unavailability of a psychologist whom she asserts was treating the father but does not explain the relevance of this issue to the trial in this Court, having regard to her case argued in the trial that the ‘week about shared care arrangement’ for the children continue.

4. Psychiatrist, Dr H, assessed both parties and was cross-examined by counsel for the applicant who represented her throughout the trial. The applicant does not assert that any issue about the father’s psychologist was raised by her counsel during the trial.

5. A preliminary assessment of the strength of the proposed appeal does not lead me to any conclusion that the applicant has an arguable case regarding procedural fairness.  There is insufficient evidence to identify any prejudice to the applicant.  The applicant was represented by counsel throughout the course of the trial in this Court and over a period of approximately ten days had extensive opportunity to cross-examine the respondent about many of the matters raised in this application. 

6. As I discuss below, in considering the onus on the applicant to establish a proper basis for the stay, there is no proper basis for a stay which has been established by the applicant.

Property orders

1. I am not satisfied that a stay is necessary to preserve the subject matter of the litigation or that the applicant’s appeal would be futile unless a stay is granted in respect of the property issues.  This is particularly so where the mother was represented by counsel in the trial, and there was agreement at the beginning of the trial and during the trial that the real property of the parties be sold.  The only property issues for determination in the trial were the contributions made by each party and the extent of the alteration in interests which should be made after the sale of the properties.

2. The evidence about the applicant’s claim that the respondent has diminished the value of the property is unclear and lacking in substance.  It is difficult to ascertain her argument in respect of that claim. 

3. The applicant’s complaint about the respondent’s non-compliance with building standards similarly is unsupported by any evidence. 

4. Having regard to the state of the evidence relied upon by the applicant, I have reservations about her bona fides and her assertion that the respondent has failed to disclose his financial circumstances.  Overall I am unclear about the argument relied upon by the applicant to stay the sale of the property which was agreed through her counsel before the trial commenced.

5. Weighing the balance of convenience and the competing rights of the parties against the risk that an appeal may be rendered nugatory if a stay is not granted, I am not satisfied that there is any proper reason to delay the sale of the property.  The applicant is not living in the property.  The applicant was represented by counsel, the sale of the properties had been agreed before the trial began and was not in issue during the trial.  No new evidence has been produced. I am not satisfied that the appeal in respect of the final property orders, even if there is any merit in the application, would render the appeal fruitless if a stay on the sale of the property were not imposed. 

Parenting orders

1. Applying the principles set out above in determining an application to stay parenting orders, my preliminary assessment and impression of the strength of the proposed appeal is that it lacks merit and is not based on substantial grounds.  I have taken into account that the applicant clearly suffers from a lack of legal advice and there may be further points which I have been unable to discern.  However, there is scant evidence relied upon by the applicant in support of her Application in a Case and her argument is vague, unclear and disconnected.

2. An example of the deficiencies is the reference by the applicant to the “apology” from the police about the incident at the  police station.  Her affidavit is ambiguous about whether it was the father or the police who yelled at her at the police station.  The annexure she relies upon (Annexure DP-05) is also ambiguous in its terms. The relevance of this matter to the issues in the trial remains unclear.

3. It would appear that the applicant is asserting that the respondent’s conduct in relation to earlier proceedings in the Federal Circuit Court has been deceptive, but it is difficult to understand the argument she raises.  The applicant asserts that a significant affidavit ( Exhibit A)  which the respondent purported to rely upon in the Federal Circuit Court, was not filed in that court but should have been viewed by the family consultant and the psychiatrist, Dr H, for the purposes of the trial in this Court. The applicant argued that the opinion of the family consultant and Dr H was distorted because they did not view this affidavit and their opinion regarding her role in taking the children to professionals and dealing with the children’s school was consequently adversely affected.

4. On the other hand, the applicant asserts that this very same affidavit of the respondent which was not filed, and therefore presumably not relied upon, contained errors and was misleading. It was difficult to comprehend the argument which the applicant proposes to raise in support of her appeal.

5. The children were living in a ‘week about shared care arrangement’ between both parents before the trial but the determination of the issues in the trial resulted in the children living with the father and spending time with the mother during school terms on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday.  The care of the children is shared equally between the parties during school holidays. A stay in parenting orders would have the effect of undoing this order, such that the children would be living with the mother and spending time with the father each alternate weekend.  This would amount to the children spending even less time with the father than had been the case before the trial was conducted.

6. The change brought about by the final parenting orders, from the ‘week about’ living arrangement between the mother and the father, to living full-time with the father would no doubt have impacted on the children, but there is no evidence from the applicant as to the circumstances of the children sufficient to support even a return to the previous arrangement before the trial, let alone the new arrangement she proposes.  There is no evidence before me from the respondent and essentially there is no evidence that it would be in the best interests of the children for their living arrangements to be changed again in circumstances where, if the mother were unsuccessful in her appeal, the children’s living arrangements would be changed yet again.  Having regard to the findings I made in the trial, this would be very unsettling and confusing for the children and accordingly not in their best interests.

7. The evidence relied upon by the applicant for her stay application does not include any reference to the circumstances of the children, other than complaints about contravention proceedings which she has brought against the respondent.  Even allowing for this deficiency in her evidence, her assertions in Court about the children failing to telephone her appeared to be without foundation.  This is because on her own admission she has been unable to provide the respondent with a mobile telephone number or a landline telephone number for the children to telephone her.  This calls into question her bona fides.

8. The best interests of the children were the subject of consideration in the trial and the final orders made, reflect their best interests for the reasons set out in the judgment of 26 February 2015.  Nothing in the mother’s affidavit, in so far as it sets out her evidence touching on the best interests of the children, discloses evidence that was not before me in the trial.

9. The respondent who has obtained a judgment is entitled to the benefit of the judgment and to presume the judgment is correct.  Other than assertions from the bar table by both parties I have no evidence about the current circumstances of the children.  The mother asserts that the father has prevented the children from emailing her and from telephoning her. The father denies that this is the case.  The respondent asserts that the children are settled and enjoying extra-curricular activities and a routine which ensures that their attendance at school is regular.

10. There is no new evidence before me about the children and I am not satisfied that the applicant has discharged the onus to establish a proper basis for the stay.  The most significant consideration here regarding the parenting orders is the best interests of the children.  The final parenting orders were made in the best interests of the children after hearing evidence, which included expert evidence, in a ten day trial. In circumstances where the proposals of the applicant are vague, there is nothing in the applicant’s stay application which alters that view.

11. The applicant proposes that the children live with her and spend time with the respondent but asserts that she is living at a women’s refuge and moving into transitional housing.  Her proposals are without any substance in terms of what arrangements would be made for the children and I am satisfied that it is in the best interests of the children to maintain the current living and spend time arrangements.

12. Neither party was informed of the prospective date for any appeal although the applicant suggested that July 2015 had been referred to by Registrar Marrone.  There is no clear evidence about when the appeal will be heard.  There is no evidence about the length of time pending an appeal but there may be a considerable delay.  Having regard to the desirability of limiting the frequency of any change in the living arrangements for the children, it is not appropriate to stay the parenting orders.

13. Accordingly the application to stay the final parenting and property orders made 26 February 2015 is refused.

14. Having refused her application for a stay, for the same reasons outlined previously, which include that it would not be in the best interests of the children, the applicant’s application for interim variation of the final parenting orders pending the appeal is dismissed.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 26 May 2015.

Associate: 

Date:  26 May 2015