Redmond and Redmond (Stay)

[2014] FamCA 382

FAMILY COURT OF AUSTRALIA

REDMOND & REDMOND (STAY) [2014] FamCA 382

FAMILY LAW – ORDERS – Stay – Where the Father seeks a stay of interim parenting orders – Where the Father has filed a Notice of Appeal – Where it was conceded that an Appeal would not be rendered nugatory if a stay was not granted – Where a number of the grounds of appeal appear doomed to fail – Where a stay is not granted.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Holinski & Holinski [2013] FamCA 658

APPLICANT: Mr Redmond

RESPONDENT: Ms Redmond

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 4493 of 2011

DATE DELIVERED: 11 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 June 2014

REPRESENTATION

FOR THE APPLICANT: Mr Redmond in Person

FOR THE RESPONDENT: Ms Redmond in Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Dooley
Dooley Solicitors

Orders

IT IS ORDERED

1. That the father’s application for a stay of my Order of 15 May 2014 pending the determination of his appeal against that Order is dismissed.

IT IS FURTHER ORDERED BY CONSENT

1. That paragraph (5) of the parenting Order made 15 May 2014 be varied by substituting the words “the [P] Contact Centre” for the words “the [N] Children’s Contact Centre or the [C] Contact Centre, whichever of those centres, individually or in combination, can accommodate this family in accordance with these Orders” in that paragraph.

AND IT IS FURTHER ORDERED

1. That the competing applications for final parenting Orders be listed for trial before the Honourable Justice Forrest over three days on 29, 30 and 31October, 2014 commencing at 10.00 am on Wednesday, 29 October 2014.

2. That on or before Friday, 12 September 2014, the Independent Children’s Lawyer shall file and serve any further affidavits of Ms S and Professor V, and any affidavit by Ms M upon which he intends to rely at the trial of the competing parenting orders application.

3. That on or before Friday, 26 September 2014, the father shall file and serve on the mother and the Independent Children’s Lawyer, one affidavit by him and one affidavit by his mother and one affidavit by Mr T, upon which he intends to rely at the trial of the competing parenting orders application.

4. That on or before Friday, 26 September 2014, the father shall either, inform the mother and the Independent Children’s Lawyer of which other affidavits of evidence in chief already filed he intends to rely upon at the trial, or file and serve any further affidavits of evidence of witnesses upon which he intends to rely at the trial of the competing parenting orders application.

5. That on or before Friday, 3 October 2014, the mother shall file and serve on the father and the Independent Children’s Lawyer, one affidavit by her upon which she intends to rely at the trial of the competing parenting orders application.

6. That on or before Friday, 10 October 2014, the father shall, if he is so minded, file and serve on the mother and the Independent Children’s Lawyer, one affidavit in which he deposes only to matters strictly in reply to matters deposed to by the mother in her affidavit of evidence in chief filed and served in accordance with Order 7 above.

7. That on or before Friday, 24 October 2014, each party shall file a minute of the orders that they propose the Court makes in the case.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Redmond (Stay) 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 BRISBANE

FILE NUMBER: BRC 4493 of 2011

Mr Redmond

Applicant

And

Ms Redmond

Respondent

REASONS FOR JUDGMENT

1. On 15 May 2014, I made an order determining competing interim parenting applications between the parties to these proceedings and published my reasons for making that order.

2. After I pronounced the order, the father informed the Court that he would be immediately lodging an appeal against my order and that the order would not sustain appeal.

3. On 16 May 2014 the father filed a Notice of Appeal against the order. The Grounds of Appeal that he provided in that Notice of Appeal are as follows:

   1.The Judge erred in his determination that his orders made were in the best interests of the child under the circumstances made and upon the evidence available to him.

   2.The Judge erred in that the orders made were not supported by the evidence before and incapable of being followed.

   3.The Judge erred that the Appellant could not withdraw his consent to a court order by consent, which was not a final order.

   4.The Judge failed to test any evidence before him, even at a basic level at the interim hearing.

   5.The Judge erred in not appointing a psychiatrist to undertake the family report.

   6.The Judge failed to enforce the current parenting orders before the Court.

4. On 28 May 2014, the father filed an application in which he seeks an order that my order of 15 May, 2014 be stayed pending the outcome of the Appeal against that order.

5. The application for the stay was heard by me on 10 June 2014. It was opposed by the mother and by the Independent Children’s Lawyer.

6. There was no disagreement between the parties as to the general principles to be applied in the discretionary determination of an application for a stay pending appeal. Those principles are well set out in paragraph 18 of the Full Court’s decision in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. The mother set them out in her written submissions. The father referred to the single judge decision of my judicial colleague Hannam J in Holinski & Holinski [2013] FamCA 658 in which they were appropriately cited.

7. The onus to establish a proper basis for the stay sought is on the applicant and the mere filing of an appeal is insufficient in itself to justify the granting of a stay.

8. The father began his submissions by asserting that the interim parenting order I varied on 15 May 2014, had been working and that there was no objective evidence that it had not been. He asserted that two paragraphs of my order were “invalid” and “defunct” as they could not be carried out. He specifically referred to paragraph (1) in which I had ordered he cause material he had posted to numerous internet websites to be removed from the internet, and to paragraph (5) in which I had ordered that the child spend time with the father on a supervised basis each weekend, to take place at two separate children’s contact centres if the family could be accommodated by those two centres in that manner.

9. I drew the father’s attention to the principles by which I was to determine his stay application and asked him to specifically address his submissions to those principles. In my respectful view, even after I asked him to do that, he failed to do that in any meaningful way.

10. When I asked him particularly to address the question of the risk that his appeal may be rendered nugatory if a stay is not granted, a very substantial factor in determining whether it will be appropriate to grant a stay, he told me that he did not really understand the concept. When I respectfully explained it to him as best I could, he readily conceded, as I understood his position, that he could not really argue that failure to grant a stay would in any meaningful way render his appeal nugatory. That was, in my view, an appropriate concession.

11. When making submissions about the asserted strength of his proposed appeal, he focused particularly, at least for a while, on the argument that I did not give adequate reasons for the order I made. When I pointed out to him that lack of adequate reasons was not included in the Grounds of Appeal that he had in the Notice of Appeal, his response was simply that he had a lot of experience with the Full Court and that he knew he would be allowed to amend his Grounds of Appeal prior to or at the hearing of his appeal and that when his appeal is heard, lack of adequate reasons would be part of his appeal. Whatever may come of that, I am far from convinced at this point in time that an appeal against my order based on an asserted lack of adequate reasons has very much merit, even if he is allowed ultimately to argue it.

12. As to the actual Grounds of Appeal set out in the Notice of Appeal filed, I consider there is some merit in the written submissions of the mother, supported by the ICL, that asserted Ground 1 is so general as to be virtually meaningless. It fails to identify with any particularity how my discretion is alleged to have miscarried. I am not persuaded that the father has an arguable case in respect of that Ground of Appeal. Similarly, the asserted Grounds 3, 4, 5 and 6 do, just as was submitted by the mother and the ICL, appear doomed to fail as disclosing no proper appeal points and the father said nothing to persuade me otherwise. 

13. As to Ground of Appeal 2, the father spent some time on the hearing of the stay application addressing this proposed ground. As I understood the father, he was submitting that because F Organisation, the organisation which runs the C Contact Centre and the N Contact Centre, will not facilitate weekly supervised visits between him and his daughter through tandem alternate weekly use of each of those two centres, which is what I had intended when I made the order in paragraph (5) of the order under appeal, that the order is “incapable of being followed” and therefore is likely to be overturned on appeal. Further, he argues that I made that order without evidence that it could be followed.

14. A similar submission was made by him in respect of the order that he act to cause material to be taken off the internet websites that I was satisfied he controlled.

15. Paragraph (5) of the order under appeal provided as follows:

    Commencing forthwith, until further order, the child, [E] shall spend time with the father for up to two hours each weekend with such time to be supervised at the [N] Contact Centre or the [C] Contact Centre, whichever of those centres, individually or in combination, can accommodate this family in accordance with these Orders, such that the child’s supervised time with the father may commence as soon as possible and be able to occur each weekend.

16. The ICL confirmed that F Organisation had informed the parties since my orders were made that as it ran both of the C and N contact centres it would not facilitate weekly supervised visits using both centres in tandem as I had hoped could be achieved. Therefore, only fortnightly supervised visits could be facilitated through both of these centres, even acting in tandem.

17. The father argued that this fact, discovered subsequent to the order being made, somehow gives rise to appealable error on my part. I am not convinced of that. That fact might justify consideration of a fresh application for a variation of that part of the order on an interim basis but I am not persuaded that it gives the  father arguable prospects of success of appeal against paragraph (5).

18. As to paragraph (1) of the order under appeal, the father’s submission at the stay application was as it was at the hearing on 14 May 2014. He submitted that he could not remove or cause to be removed all material published by or caused to be published by him on certain listed internet websites. I informed him that I had already determined previously that I was satisfied on the evidence that he could and that is why I made the order that I did. His submission, as I understood it, was that he would succeed on appeal against that order as I did not have evidence before me upon which I could make the findings necessary to support that order. As the mother submitted, his Ground of Appeal in this respect seems to be alleging a material error of fact, but the father offers no particulars as to the alleged error. In any event, I am not persuaded at this point in time that he has an arguable appeal in respect of this particular point.

19. The mother asserted that the bona fides of the father in bringing the appeal is seriously questionable. The evidence establishes that as a litigant who does not have legal representation he is far from timid in respect of filing appeals against orders he is unhappy with. However, it also establishes that to date he has had little success on appeal. In this case, He informed me at the hearing on 14 May 2014 that if I made the order sought by the wife that he would appeal against it. When I made the order on 15 May 2014, before he had even seen and read my reasons, he told me he was going to appeal immediately. With respect to the father and his acknowledged right to appeal a decision he considers is made with error, one does get a sense that he is overly focused on his involvement in the litigation process rather than on achievable outcomes or on what he actually considers is in the best interests of the child.

20. During the course of the hearing of this stay application, I asked the parties if they would consent to me making an order that replaced paragraph (5) of the order of May 15 with an order that weekly supervised visits between father and child take place at the P Contact Centre. The ICL had informed me (and the mother had also included in her affidavit evidence details supporting the ICL’s information) that weekly supervised visits could be facilitated at this contact centre after a relatively short waiting period. The ICL and the mother each supported the making of such an order.

21. After informing the father that his position could be stated without prejudice to his right to continue to argue for the stay application and being satisfied that he understood that, I asked him if he would consent to the making of such an order in the event that I determined the stay application against him. Quite appropriately, he informed the Court that he did.

22. The father also informed the Court that his Appeal against my order of 15 May 2014 is not likely to be heard by the Full Court sitting in Brisbane until the December sittings. Convinced that the parties, now before the Courts for around three years without finality in their proceedings, need finality in respect of this parenting dispute, I have determined to list the matter for a three day trial in November 2014. That is before the appeal against my interim orders is likely to be heard. I consider an end to the parenting orders dispute between these parties will most certainly be in the child’s best interests by allowing the parents to get on with their lives focused on their parenting rather than the litigation in these courts that has been going on between them now for so long.

23. Ultimately, not being convinced that the father’s proposed appeal has arguable prospects of success; accepting that the Appeal is not going to be rendered nugatory by refusing a stay; satisfied that the trial will most probably take place before the Appeal against my interim orders is heard in any event; concerned about the father’s bona fides on the appeal; considering that the best interests of the subject little girl are not met by orders of this Court that create any further instability in her life in the immediately foreseeable period, I reject the father’s arguments that I should stay my order of 15 May 2014 pending the determination of his appeal against them.

24. I dismiss the father’s application for a stay filed 28 May 2014. I will make an order though, with the consent of all parties, providing for supervised time between the father and the child to take place on a weekly basis at the P Contact Centre, commencing as soon as possible. I will list the matter for a three day trial before me in November this year.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 June 2014.

Associate: 

Date:  11 June 2014