Reddin & Bickett (No 2)
[2023] FedCFamC1F 17
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Reddin & Bickett (No 2) [2023] FedCFamC1F 17
File number(s): ADC 2812 of 2015 Judgment of: KARI J Date of judgment: 17 January 2023 Catchwords: FAMILY LAW – EX TEMPORE REASONS – Stay Application – Where the Court accepts that the appeal would not be rendered nugatory if a stay was not granted – Best interest factors considered – Merits of the Appeal considered – Concession made by the applicant’s counsel that there is a difficulty with the case run by the applicant at first instance - Application dismissed Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 17 January 2023 Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Southern Vales Legal Solicitor for the Respondent: Mr Picotti-Ellis Counsel for the Independent Children's Lawyer: Mr Kent Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 2812 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REDDIN
Applicant
AND: MR BICKETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
17 JANUARY 2023
THE COURT ORDERS THAT:
1.That the Application in a Proceeding filed by the Mother on 10 January 2023 be dismissed.
2.That the Response to the Application in a Proceeding filed on 16 January 2023 be dismissed.
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 the pseudonym Reddin & Bickett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
KARI J
INTRODUCTION
This matter comes before me today in relation to a stay application that has been filed by the mother. That application was filed by her on 10 January 2023.
BACKGROUND
To give some background to the matter, these proceedings were heard by me at trial across 9 to 13 May 2022.
I delivered judgment in the proceedings on 23 November 2022.
While not overly germane to the present issues that fall for consideration, the ultimate outcome, as a result of the final orders I made, were that the children move from an arrangement where they were living solely with the mother and up until trial not spending any time with the father, despite orders having been made for them to do so, to the children ultimately transitioning to an equal shared care week-about arrangement.
As a consequence of events that took place during the trial, the children began spending time with the father each alternate weekend prior to the delivery of judgment and the making of orders on 23 November 2022.
I say that those issues are not necessarily germane to the present dispute save and except to say the following: as a consequence of orders being made for the children to live in a shared care arrangement, I also made orders for the children to move to a new school.
THE APPEAL & THE STAY APPLICATION
The schooling issue and the orders related to the schooling issue in paragraphs 8 and 9 of my orders are those that are the subject of appeal by the mother.
The stay application only relates to paragraph 8 of the orders that I made. That paragraph of the orders provides as follows:
that forthwith the parties do all such acts and sign all such documents as are necessary to facilitate the children being enrolled in and attending [Q School] as and from the 2023 school year.
As I say, the application for a stay by the mother relates to that order.
The children are presently attending W School. The children were attending that school at the time of trial.
There was much evidence given during trial in relation to issues that had arisen during the children's schooling as a consequence of the behaviour of each of the parties. I do not propose to touch on those matters.
Ultimately, however, the proposal for a change of school to one that was equal distance between the parties' homes, such as Q School, came about as a result of evidence given to the Court by the Child Expert, Ms G, when she gave oral evidence during the proceedings.
Indeed, because I have the benefit of the transcript of her evidence before me at the present moment and I, in any event, recall Ms G gave that evidence in response to questions put to her by counsel for the Independent Children's Lawyer (‘ICL’); indeed, it was the Independent Children's Lawyer who proposed Q School.
I am having regard, for the parties' benefit - while I do not think they have the transcript - to the evidence of Ms G given on 16 May 2022 at page 52 of the transcript and, in particular, at line 41.
Ultimately, Ms G gave evidence that a school equal distance, like Q School, between the parties' homes was an appropriate school and an appropriate outcome if the Court made orders for the children to spend substantial time with the father.
That portion of the transcript reads as follows:
COUNSEL FOR THE ICL: Yes. And we talked briefly – you talked briefly about the fact that Dad lives about […] away, that that’s a significant drive for the children to school. Is it possible that in the event that the children remain in their mother’s primary care and are spending time with their father anywhere – let’s say for the purpose of this question, four to seven nights a fortnight with their dad, that they could be enrolled at a school in a halfway location, like [Q School], would that be an appropriate thing for her Honour to contemplate in a scenario whereby the children are spending time with both of their parents?
[MS G]: That – that would be an option. Yes. Yes. Yes.
COUNSEL FOR THE ICL: And - - -?
[MS G]: I hadn’t really thought of that, but – yes. That would be an option: a midway school. And, again, that would be a change of school - - - .
COUNSEL FOR THE ICL: Yes?
[MS G]: so they haven’t got the associated memories of the – because I think there’s some negativity about that school now because they’ve – they’ve come to the attention of staff and – and there has been incidents that have happened there and – so I think – yes, a change of school, where both parents are in agreement to take the children to a different school.
COUNSEL FOR THE ICL: I must highlight I don’t know if the children can be enrolled in that school. It was just a concept I wanted to put to you?
[MS G]: Yes.
HER HONOUR: Do I take your answer to be, though, if there is an option for a school midway, these children, given the history, would benefit from a fresh start?
[MS G]: Yes.
HER HONOUR: Is that what you’re telling me?
[MS G]: Yes. If there’s going to be a change in parenting arrangements that significant, then – then a change of school seems appropriate. Yes. So a fresh start for everything, really. That’s how I would imagine – it could be put to them in that way as well: “This is a fresh start. We’re going” - - -
I will not continue, but the transcript bears out the evidence from Ms G.
DISCUSSION
When considering any stay application the Court must have regard to the applicable principles. They have been properly enunciated and are well-settled and set out in the decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18] as follows:
The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). 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.
From the mother's perspective, she urges the Court, primarily, not only that the appeal that she has filed has merit but she says two things in support of the stay application: firstly, that the appeal would be rendered nugatory if the stay were not granted and secondly, and importantly, that the Court should have regard to the best interests of the children.
The mother also argues that those best interest factors are factors that go to the merit of her appeal, in any event.
Put against the mother, with respect to those matters, both the father and the Independent Children's Lawyer are ad idem. They say, firstly, that the appeal would not be rendered nugatory because there is always the option for the children to go back to W School if the stay is not granted and the mother is successful in her appeal.
In addition, both the ICL and the father say that the best interest factors, in fact, favour the children transitioning to a new school now.
The Independent Children's Lawyer, in particular, advances that submission for a range of reasons. Firstly, he has canvassed with the Court the various outcomes for the children:
(a)Firstly, if the stay was granted and the appeal was successful, then the children would not be required to change schools and they would remain at W School.
(b)Secondly, if the stay was granted and the appeal was unsuccessful, the children would be required to change schools after the disposition of the appeal.
(c)Thirdly, if the stay was not granted and the appeal was unsuccessful, the children would be required to change schools to Q School now, and they would remain there after the disposition of the appeal.
(d)Finally, if the stay was not granted and the appeal was successful, the children would be required to change schools to Q School now, and then on the disposition of the appeal return to W School.
Either way the ICL indicates to the Court that there is a 50/50 outcome of the children having to suffer some change with respect to their schooling. He says that in those circumstances the change and the impact of such change on the children so far as their best interests are concerned is not a determinative factor of the stay application but rather that the merits of the appeal are determinative of the stay application.
In addition, I am also aware, from the evidence that has been put by the father in these proceedings and answers given by the mother's counsel from the bar table, that since 23 December 2022 the orders for the children to live with the father in a week-about shared care arrangement have not been complied with. From the father's perspective, he asserts that the mother has embroiled the children in the dispute, again, to bolster her ultimate position that the children remain at W School. The mother, to be fair, has not filed any material in response to that overriding position put by the father. While those are questions for a different day it may well be that there is either a contravention application filed by the father or, indeed, a fresh application for final orders and further interlocutory orders to be filed by the father.
Whatever the case may be, it is a relevant factor to my mind that the children are already suffering some disruption because the orders that I made and the time-spending arrangements that had been in place from about May of last year, while they increased to a shared care arrangement, are now again not occurring. The children are not spending time or living with their father as had been intended by the orders of the Court. That ongoing disruption to the children is a factor that weighs heavily on my mind.
As to the merits of the appeal, I accept the submissions made and the concession made by counsel on behalf of the mother that there was a flaw in the way that the mother ran her case.
Understanding that Ms G gave evidence after the parties gave evidence in the proceedings and that the option of a midway school like Q School was one that was canvassed by the ICL with Ms G during her evidence, the flaw in the way that the mother ran her case is that, that evidence having been given, the mother did not seek to reopen her case or to lead further evidence in the proceedings in relation to any such change to the children's schooling.
In my view, that is a strong factor that speaks against the merits of the appeal.
I otherwise accept the submissions that have been made that the appeal would not be rendered nugatory if a stay were not granted.
I accept that while a change of school is a disruptive outcome, the children can return to W School if, indeed, the mother's appeal is successful.
The best interests of the children is one that weighs heavily on my mind. The fact that the children are not living with the father as had been intended, is a factor that is exercising my mind. The fact that the father asserts that this appears to be tied to the mother's quest to have the children remain at W School is, again, something that I am cognisant of.
The mother has not sought to appeal the living arrangements and the other orders that I made, that, in addition, is something that weighs heavily on my mind.
I otherwise accept the submissions that have been made that whatever outcome I order today there is likely to be some disruption. I put it higher than that, I put it at ongoing disruption to these children. I say ongoing disruption not only because the children are no longer seeing their father, but also there is a very high chance that whatever order I make today there will be some disruption to the children in relation to their schooling.
In response submissions were made on behalf of the father that if ultimately I do not stay the order and ultimately the mother is successful in her appeal, that there is a “softer landing” for the children at W School. This submission is one that has resonated with me.
The mother herself indicates to the Court that the children have a school counsellor who is supportive. If the children are required to transition back to W School I accept that with that support network and their network of friends that that is a softer landing for the children, if that is to occur midyear or sometime throughout the year, then the landing that would occur for the children if they were to transition other than on the first day of term at a new school, being Q School or such other school that is equal distance between the parties.
For all of those reasons and on balance - and it is a considered decision I have come to - I am of the view that I will refuse the stay application that has been brought by the mother.
I, accordingly, make the following orders.
NOTE: These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 17 January 2023
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