Redmond and Stolz (No 2)

[2015] FamCA 401

FAMILY COURT OF AUSTRALIA

REDMOND & STOLZ (NO 2) [2015] FamCA 401

FAMILY LAW – ORDERS – Stay – where the father seeks a stay of Orders pending an appeal – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Redmond

RESPONDENT: Ms Stolz

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 4493 of 2011

DATE DELIVERED: 28 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 28 May 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

THE INDEPENDENT CHILDREN’S LAWYER: No Appearance

Orders

1. That the father’s application for a stay of Order 9 of the Orders of Justice Forrest dated 19 May 2015 pending the hearing of his appeal against those Orders is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Stolz (No 2) 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 Stolz

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 11 May 2015, the parties in this matter came before me on a judicial duty list day upon the father’s application for a review of the Principal Registrar’s decision of 10 March 2015. The Principal Registrar had made orders permitting the mother to take their 10 year old child, E, overseas on a short holiday to a couple of countries in south-east Asia. The father’s further application to have the Independent Children’s Lawyer discharged from the case had also been dismissed by the Principal Registrar. That was also under review on that day.

2. Pending the determination of the review of her decision, on the father’s application, the Principal Registrar had stayed her Orders. The father then made a further application to the Court for an order that the Australian Federal Police be requested to place the child’s name on the family law watch list. Filing that application apparently enabled the father to cause the Australian Federal Police to place the child’s name on the family law watch list. That application was also listed for my determination on 11 May.

3. The mother, who sought orders that the father’s applications be dismissed, also sought orders for the child’s name to be removed from the family law watch list and orders to enable the child to travel with her on the planned overseas holiday between 21 June and 5 July this year. The mother also applied to the Court for an injunction pursuant to s 68B of the Family Law Act 1975 (Cth) restraining the father from filing any applications seeking an order for the placement of the child on the family law watch list.

4. After hearing the submissions from the parents and the ICL on that day, I reserved my judgment.

5. On 19 May 2015, I delivered my Judgment and made Orders dismissing the father’s applications and permitting the mother to take the child overseas for the planned holiday. I also granted an injunction restraining the father from taking steps to have the child’s name placed on the family law watch list. That Order was in these terms:

   (9) Pursuant to s 68B(2) of the Family Law Act 1975 (Cth), until further order, the father is restrained and an injunction is hereby granted restraining him or any person acting as his agent from taking any steps to communicate with the Australian Federal Police so as to cause them to put the name of the child, [E] born … 2005, on the Family Law Watch List.

6. On 20 May 2015, the father filed a Notice of Appeal against the Orders I made the previous day. The Grounds of Appeal that he listed in that Notice of Appeal are as follows:

   1.The Justice did not have any inherent power to make the orders made, nor did he give any notice to the Appellant that such orders might be made, thus denying the Appellant procedural fairness (Order 9 and 10).

   2.That Justice failed to take the best interests of the child pursuant to section 60CA and properly apply the principles of section 60CC in making the orders and dismissing the Appellant’s application.

   3.That Order 9 is an abuse of the court process and has criminal element in that it could aid and abet a criminal offence (allow a child to travel despite an appeal), pervert the course of justice, or be a form of extortion (abuse of power for ulterior means) and hindering the Australian Federal Police from doing their job.

7. On 21 May 2015, the father filed an application in which he seeks an order that Order 9 of my Orders of 19 May 2015 be stayed pending the appeal against those Orders.

8. I heard the father’s application for the stay today. The mother opposed it. The Independent Children’s Lawyer chose not to appear.

9. The application is pressed by the father in circumstances where his appeal against my Orders of 19 May 2015 has now been listed for an urgent hearing by the Full Court on 12 June 2015, but also in circumstances where the mother’s evidence is that pursuant to my Orders of 19 May 2015, their child’s name has already been removed from the family law watch list by the Australian Federal Police.

The Principles by which this application is to be determined

1. The Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 set out the general principles to be applied in the discretionary determination of an application for a stay pending appeal. This is set out at paragraph 18 of the decision where their Honours Bryant CJ, Boland and Crisford JJ stated:

   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.

My consideration of the matter against those principles

1. Relevantly, the mother submits that the father’s appeal lacks bona fides. She points to the fact that the father has filed eighty-six applications against her in various courts in the space of just the last four years and, most particularly, she points out that he appeals or reviews every decision made against him. She also points out that a very large number of the applications commenced by the father have been ultimately dismissed by the courts.  The mother also submits that the father makes the applications and lodges appeals as a means of harassing and intimidating the mother and to cause her inconvenience and financial loss.

2. I am satisfied that there is some merit in that submission. I said as much in my reasons given in support of the Orders that included the Order now sought to be stayed. I observed in those reasons for judgment that the father seemed intent on using the mechanism of appeal and notice to the Australian Federal Police, based on what I, at least, consider is a misinterpretation of s 65Z of the Family Law Act, to unreasonably prevent the mother from taking E on a short overseas holiday during her winter school holidays.

3. Two judicial officers of this Court have now determined, on the merits of the application, that the mother should be permitted to take the child on the holiday. Twice, the father’s submission that the mother is a flight risk has been rejected by the Court. The father’s actions have already caused the alteration of the mother’s holiday plans at some financial loss to the mother.   

4. The appeal against my Orders permitting the mother to go and restraining the father from being able to unilaterally, and without a further order of this Court, prevent the mother from taking the child has been set for 12 June, a date that is more than a week before the mother’s planned departure date. I expect that has only been achieved at some inconvenience to the Full Court of this Court.

5. If the father is successful on the appeal, he can reasonably expect that the Full Court will make orders that prevent the mother from taking the child out of the country on 21 June as she currently plans.  Nevertheless, he presses the stay application. He still argues that the mother is a flight risk and that whilst the child’s name is not on the watch list the mother could secretly remove her permanently from this country. As I have already observed, when I made the Orders on 19 May I was satisfied that the mother is not such a flight risk. Nothing I have heard today causes me to change that view in any way. I am still completely satisfied that the mother is not likely to flee the country with the child prior to the hearing of the appeal on 12 June.

6. I am also satisfied, on the balance of probabilities, that in pressing his stay application today, when the appeal is listed to be heard prior to the date on which the mother plans to depart for the holiday, the father is driven not by concern that his daughter will be secretly removed from Australia before the appeal is heard and determined and kept away permanently, but rather by the motives attributed to him by the mother, namely a desire to cause the mother inconvenience, expense and anguish. Further, I have serious doubts that the father is genuinely motivated by good intent and appropriate child focus in bringing the appeal that is listed for hearing on 12 June.

7. My complete satisfaction that the mother is not a flight risk is also relevant to my consideration of the risk that the appeal may be rendered nugatory if the stay the father seeks is not granted. As already observed, the mother’s holiday plans do not have her leaving the country with the child until 21 June and the father’s appeal against the Orders permitting the mother to take the child with her on that date and preventing him from causing the Federal Police to put the child’s name back on the watch list is listed for hearing on 12 June. The principal point in issue in the appeal, whether the mother should be permitted to take the child with her on the planned holiday to Country U and Country X, should be determined prior to the planned departure date. The appeal could only be rendered nugatory by a failure to grant the stay that is sought if the mother flees the country with the child between now and 12 June whilst the child’s name remains off the watch list. As I have said, I am satisfied that there is no unacceptable risk of that happening.

8. Additionally, the father has not persuaded me that his listed grounds of appeal are arguably meritorious. Of course, if the Judges of the Full Court who hear his appeal consider that I am wrong about that and that there is merit in his appeal, they will make the orders that they consider appropriate and, no doubt, that will be done in time to stop the mother taking the child out of the country on her holiday.

9. The mother has given evidence that the child has been told of the planned holiday and that she has expressed excited anticipation about the trip and the planned destinations. I have no doubt about that. I am satisfied that the mother’s holiday plans are genuine and suitably child focused. I do not consider it in this little girl’s interests to make an order today that lets the father cause her name to be put back on the family law watch list. I am quite satisfied there is no need for that in this case at this point in time.

10. Accordingly, I now dismiss the father’s application for a stay of paragraph 9 of my Orders of 19 May 2015.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 May 2015.

Associate:

Date:  28 May 2015