Reid and Lynch

[2010] FMCAfam 617

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REID & LYNCH [2010] FMCAfam 617

FAMILY LAW – stay application – general principles – concurrent trials.

Family Law Act 1975, s.60CA

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Ampolex Ltd v Perpetual Trustee Co (Canberra) Limited (1996) 137 ALR 28
Clemmett v Clemmett (1981) FLC 91-103
Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220
EJK v TLS (No 2) (2006) 35 Fam LR 590
Elspeth v Peter [2007] FamCA 254
Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCA Trans 5 (24th January 2008)
Inwood & Barnett (2008) FMCAfam 1446
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
K & B (2006) FLC 93-288
Mullen v De Bry (2007) 36 Fam LR 501
Nauru Phosphate Royalties Trust v Harris [2007] HCA Trans 329
O v L (2005) 196 FLR 224
Rice & Asplund (1979) FLC ¶90-725
SPS & PLS (2008) 217 FLR 164; (2008) 39 Fam LR 295
Stephens & Stephens (Stay Application) (2010) FLC ¶93-429

Applicant: MS REID

Respondent: MR LYNCH

File Number: CAC 111 of 2009

Judgment of: Neville FM

Hearing date: 8 June 2010

Date of Last Submission: 8 June 2010

Delivered at: Canberra

Delivered on: 11 June 2010

REPRESENTATION

Counsel for the Applicant: Mr Webb

Solicitors for the Applicant: Commins Hendriks, Solicitors
Wagga Wagga

Respondent: Mr Lynch – Self-Represented Litigant

Independent Children’s Lawyer Mrs L Terrill
Loretta Terrill Family Lawyer, Albury

ORDERS

1. The Application for a stay of the Orders made on 29^th April 2010 be dismissed.

2. The matter proceed to final hearing commencing 28^th June 2010 in Wagga Wagga.

AND IT IS NOTED THAT: Subject to the Full Court’s determination in the “Rice v Asplund” appeal, no judgment will be delivered until that appeal has been determined.

AND IT IS FURTHER NOTED THAT: Argument/submissions in relation to the unsuccessful stay application will be heard at an appropriate time in the course of the trial in Wagga Wagga.

IT IS NOTED that publication of this judgment under the pseudonym Reid & Lynch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 111 of 2009

MS REID

Applicant

And

MR LYNCH

Respondent

REASONS FOR JUDGMENT

A.            Introduction

1. The following reasons were delivered on 11^th June 2010.  At that time I indicated that they would be transcribed, published and made available in the usual course to all who are involved in the proceedings.  They have been slightly revised from the Transcript.

2. There are two matters listed for concurrent hearing, both as `special fixtures’, in Wagga Wagga in the week commencing 28^th June 2010.  An appeal has been lodged in relation to one preliminary aspect involving one of those matters.  Both in the judgment under appeal, and in these reasons, I seek to show (a) how the two matters are so closely intertwined, and (b) why, in my view, both sets of proceedings should proceed to hearing together at the end of this month.

3. In both sets of proceedings, Ms Reid is the Applicant.  In the course of a longer relationship with Mr L, and a rather short relationship with

   
   

   Mr Lynch, she has had children with both gentlemen, who are Respondents in each of the matters.  Among other things, she seeks to relocate from [W] to the [C] region. I understand that she is due to be married in November this year. Through her lawyers, she has confirmed that she will not relocate without the sanction of the Court.  Thus far, there has been no opportunity to explore whether her fiancé is able or willing to move to the [W] area, thus obviating the “relocation” issues which necessarily include how the children of Ms Reid will be able to maintain a “meaningful relationship” with their respective Fathers if Ms Reid’s application succeeds. 

4. For ease of reference, I will refer to the respective proceedings in an abbreviated manner, such as `the L proceedings’ and `the Lynch proceedings’ (or similarly, `the L matter’ and `the Lynch matter’).[1]

   [1] In the course of the hearing of the stay application, I indicated that I would hear, but not deliver judgment in, the Lynch proceedings until after the Full Court had delivered its judgment in the so-called Rice & Asplund appeal.

B.            Procedural & Other Background

1. On 20^th April, I delivered a judgment on a preliminary procedural point in which, notwithstanding Consent Orders made in July 2009, I allowed Mr Lynch's Application - to spend time with his son [X], and to prevent Ms Reid relocating to the [C] region - to proceed.  In my reasons, I also noted that should leave be required, Ms Reid may renew her application to have the principles articulated in Rice & Asplund and subsequent cases, notably Warnick J’s decision in SPS & PLS, apply to the current proceedings.[2]

   [2]Rice & Asplund (1979) FLC ¶90-725; SPS & PLS (2008) 217 FLR 164; (2008) 39 Fam LR 295.

2. That judgment and the Order made pursuant to the reasons it contained has been appealed.  The Application currently before the Court for determination is for a stay of the Order made on 20^th April. 

3. To speak formally, the only Order actually made on that day was for the matter to be set down for final hearing and to be heard as a special fixture in Wagga Wagga on a date to be advised.  There is a notation regarding the Rice & Asplund issue.  It would be inappropriate, it seems to me, to comment on appealing an Order that seeks only to list a matter on a final basis, at significant inconvenience to the Court, as a special fixture in Wagga Wagga.  I leave such matters to the Full Court regarding orders, notations, and reasons.

4. One effect or consequence of the Order and the notation to which I have just referred is that the specially fixed trial dates in Wagga Wagga, commencing on 28^th June, insofar as they directly concern Mr Lynch as a party, can proceed.  There are currently listed in that week two trials which are to be heard concurrently.  As I have already indicated, both trials involve Ms Reid, the Applicant here. Different Fathers are involved in each of the proceedings.  There are two slightly older children in the first set of proceedings which involve Mr L.[3]

   [3] Initially, it was strongly suggested on behalf of Ms Reid that the proceedings involving Mr L should not proceed until the result of the appeal in the “Lynch matter” was determined.  However, following discussions in Court, in the course of which there was an indication that the appeal may be able to be heard reasonably quickly, the initial opposition to the “L matter” proceeding as planned in the last week of June in Wagga Wagga was dropped. 

   In the course of the hearing of the stay application, I also raised with Mr Howard comments made by Counsel briefed in these proceedings on behalf of Ms Reid who, in unrelated proceedings, had indicated to another Federal Magistrate that (in my words) the stay would almost certainly be granted.  The inference was that, once granted, the current hearing dates would become available for other matters, including the other proceedings in which that same Counsel was briefed.  I read the exact words of Counsel from the Transcript and suggested to Mr Howard that he may wish to bring this to the attention of his principal, Mr Webb.

5. There is one relatively young child, [X], who is two and a half years old, in the proceedings that involve Mr Lynch and Ms Reid. I have been advised that both Fathers, both of whom are self-represented litigants, are to be called as witnesses in each other’s case.  There are separate ICLs in each case.  The issue of likely two sets of proceedings being faced by Ms Reid was first raised by her experienced solicitor, Mr Webb, in early February this year when the Court was on circuit in [W].

6. It was essentially as a result of his concerns on behalf of his client in this regard that the so-called Rice & Asplund issue was agreed to be considered by written submissions at the earliest possible time.  Orders were made on 31^st March which provided for a timetable for written submissions from both parties and the independent children's lawyer in relation to the determination of the Rice & Asplund issue.  There was also a notation to the effect that the matter would be determined, to speak somewhat colloquially, `on the papers.’

7. The notation confirmed that the parties would be advised if an interim hearing was considered necessary.  Submissions were received from both parties and from the independent children's lawyer.  As well, a letter was sent from my Chambers, dated 8^th April, to all parties and the ICL confirming the orders made on 31^st March.  From a draft of the Appeal Index which has been forwarded to my Chambers that that letter has not been included in the materials to go before the Full Court.  Again, I leave such matters to the Appeals Registry.

8. As it happened, the matter was moved from 23^rd April to 20^th April, when reasons were delivered.  Following delivery of the reasons, there was discussion at some little length with the parties and the independent children's lawyer regarding preparation of the hearing, including how many days would be required to deal with both matters.  It seemed to be agreed that, whatever the difficulties in conducting parallel, or concurrent, trials, because the parties and matters are so intertwined, the most appropriate course was to hear both matters together.  I confirm that on that occasion, following delivery of reasons, albeit by telephone, Mr Lynch attended, as did Mr Webb (on behalf of Ms Reid), and Mrs Terrill, the independent children’s lawyer.

9. By orders made in Chambers on 29^th April, the two sets of proceedings were listed for hearing for four days in Wagga Wagga, beginning on 28^th June.  Those matters are listed, as previously notified, as special fixtures.

10. A Notice of Appeal was filed on 13^th May in relation to the Order made on 20^th April.

C.           General Principles 

1. At the hearing of the current Application it was generally agreed, notably with Mr Howard who appeared as agent on behalf of Mr Webb, that the summary of principles concerning stay applications, which I had given in previous cases, notably, for example, in Inwood & Barnett,[4] was a suitable outline or reference point for the purposes of the application before the Court.

   [4] (2008) FMCAfam 1446 at [3] - [8].

2. Because Mr Lynch was and remains a self-represented litigant, a copy of those paragraphs was provided to him prior to the Application proceeding, and some time given for him to consider them.  Unfortunately, the independent children's lawyer, Mrs Terrill, was not able to be present due to illness. 

3. For the purposes of the current Application, and as indicated at the hearing, I formally incorporate those paragraphs from Inwood & Barnett into these reasons.[5]  They are as follows:

   [3] The cases might be distinguished, however, between stay applications in commercial litigation as opposed to stay applications in family law proceedings.  That distinction was recognised specifically by Kirby J, sitting alone in the High Court in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329.  At p.1332 [16] his Honour said:

   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] Since that judgment I have added to the list of relevant cases the earlier discussion by Kirby J in Ampolex Ltd v Perpetual Trustee Co (Canberra) Limited (1996) 137 ALR 28. As well, a number of the authorities to which I refer have recently been the subject of comment, in the context of an application to seek special leave to appeal to the High Court and certain special considerations which there apply, by the Full Court (May, Boland & O’Ryan JJ) in Stephens & Stephens (Stay Application) (2010) FLC ¶93-429 at [79] – [83].

   [4]  This distinction was recognised and accepted by the Full Court of the Family Court of Australia in EJK v TLS (No 2) (2006) 35 Fam LR 590 at 594 [17], where their Honours cited the observations of Kirby J in JRN & KEN to which I have just referred. 

   [5]  In family law stay applications, the invariable original touchstone is the judgment of Nygh J in Clemmett v Clemmett (1981) FLC 91-103.  More important recent important cases from the family law jurisdiction are O v L (2005) 196 FLR 224 (Boland J); Elspeth v Peter [2007] FamCA 254 (Benjamin J); and a decision of his Honour Altobelli FM in Mullen v De Bry [2007] 36 Fam LR 501. 

   [6]  From the non-family law jurisdiction, but which cases are not infrequently referred to in family law proceedings, are the New South Wales Court of Appeal judgment in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 (Kirby P, Hope and McHugh JJ), Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220 (Dawson J), and Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681 (Brennan J).  More recent High Court discussion of the principles applicable in stay applications, almost invariably citing one or more of the cases to which I have just referred (especially Myer Emporium and Jennings Construction), can be found in Hayne J’s recent ex tempore judgments in Nauru Phosphate Royalties Trust v Harris [2007] HCA Trans 329 (27th June 2007) and Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCA Trans 5 (24th January 2008).

   [7]  In the light of the jurisprudence articulated over many years the following may be taken as a summary of the principles to be applied in relation to a stay in the family law jurisdiction:

   (i)     An appeal does not, of itself, confer or require the granting of a stay as of right.

   (ii)     A stay does not constitute a “parenting order” per se and thereby immediately or directly invoke the operation of s.60CA regarding the best interests of the child being paramount.

   (iii)    The interests of the child are, nonetheless, a critical consideration.

   (iv)    The application must not be a mere delaying tactic.

   (v) The grounds of appeal must be substantial.

   (vi)    The Court must consider whether the refusal to grant a stay would render the appeal nugatory in any respect.

   (vii)   Having regard to the child’s best interests, changes to custodial arrangements in relation to the child must, as far as possible, be kept to a minimum.

   (viii)  A Court is required to assess the issue of “hardship” on each of the parties should the stay be granted or in the event the stay is refused. (See here the discussion of Boland J in O v L at pp.230-231).

   [8]  In addition to the above, for my part the most immediately relevant case that guides the determination of the current application, and not previously mentioned, is the judgment of the Full Court in K & B (2006) FLC 93-288 at [32] (Warnick, May and Boland JJ):

   The granting or refusal of a stay involves an exercise of discretion by a trial Judge.  Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay.  The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.

4. In order to expedite proceedings somewhat, at the outset of the Application, I indicated to Mr Howard that in the absence of any evidence to confirm otherwise, I did not assume any lack of bona fides on the part of Ms Reid, and still less on the part of her solicitors, in relation to prosecution of the appeal.  Therefore, unless he wished to do so, he did not have to address the Court in relation to whether the appeal was a “mere delaying tactic,” one of the matters I am required to consider.

5. Such an observations should also be seen in the context of Mr Howard’s submission, that in prosecuting the appeal, and if the appeal is successful, it would save Ms Reid significant costs in not having to prepare for a hearing in relation to Mr Lynch.  Couched more bluntly, in my terms, and it was not put this way by Mr Howard, from a legal tactical perspective, it would mean that Ms Reid would not have `to fight on two fronts.’

6. Mr Howard did not comment on the comparative costs of conducting the appeal and the costs of conducting a final hearing.  In the light of the cost of litigation generally, one might safely assume that both the trial and the appeal will be not insignificant sums.  There might in fact be some comparative trade-off in this regard because the costs of conducting an appeal, including the time and expense of preparing Appeal Books, obviously, is not a meagre exercise. Thus, the submission as to “cost-saving” should, perhaps, be tempered somewhat.

7. I also confirmed that, in the event that, (a) the Rice & Asplund appeal was dismissed, and (b) if Mr Lynch’s matter did not proceed at the end of the month (for whatever reason), it would almost certainly be the case that it would be a very long time before other hearing dates could be found in Wagga, especially as a `special fixture.’  Mr Howard commented that his client was aware of the risks of delay in this regard, especially so in the context of her pending nuptials at the end of the year, and that her move to [C] may necessarily be delayed by more than a year if the two trials were not heard concurrently.

8. I observe, however, that if the two matters have to be heard but, ultimately, separately, notwithstanding the differences in the cases, there are necessarily significant overlaps. Thus, whatever the differences, the Court will, effectively, be required to hear very similar matters twice over, thereby requiring further expenditure of always scarce court resources.  For example, in addition to both Fathers being witnesses in each other’s case, I understand that Mr Lynch’s child, [X], spends regular time with Mr L’s children, a self-evidently important consideration to be addressed in at least the L proceedings.  Thus far, the time that [X] spends with Mr Lynch’s two other young children has been rather limited and was quite some time ago.

9. As well, I pose for consideration but not necessarily for resolution now, if the matters are to be heard separately, what happens if, for example, adverse credit findings are made against one of the parties which would impact significantly on the other proceedings?  As indicated, I simply raise such matters without making any other comment.

10. I move to the eight summary points to be considered in relation to stay applications, set out earlier in these reasons from my judgment in Inwood & Barnett.  For the benefit of those listening to these reasons, I repeat those eight points (without citations/references), as follows:

    (1)An appeal does not, of itself, confer or require the granting of a stay as of right.

    (2)A stay does not constitute a parenting order, per se, and, thereby, immediately or directly invoke the operation of s.60CA, regarding the best interests of the child being paramount.

    (3)Nonetheless, the interests of a child are a critical consideration.

    (4)The application must not be a mere delaying tactic.

    (5)The grounds of appeal must be substantial.

    (6)The Court must consider whether the refusal to grant a stay would render the appeal nugatory.

    (7)Having regard to the child’s best interests, changes to custodial arrangements must, as far as possible, be kept to a minimum.

    (8)A court is required to assess the issue of hardship on each of the parties, should the stay be granted, or in the event the stay is refused.  In this regard, I refer specifically to comments of Boland J in O & L, to which I have earlier referred.

1. In the following discussion and determination of the application before the Court, unless otherwise indicated, I proceed according to the outline of matters set out in the previous paragraph.

D.           Discussion & Determination

1. There is (and was) no cavil with the proposition that an appeal does not, of itself, confer or require the grant of a stay as of right.  I was not addressed on this point, nor did I seek to be, so I need not spend any further time on it. 

2. In relation to the next two points, which deal with a stay not constituting a parenting order, per se, but, nonetheless, the child’s interests being a critical consideration, I make the following comments.

3. In my now often-stated view, for [X], as well as for his parents, and for his disparate siblings, it seems to me that the sooner the proceedings are concluded, the better.  Obviously, Ms Reid and her legal advisers have chosen a route which they contend will obviate the need for a trial and, therefore, if the appeal is successful, subject to what is said below, the matters involving Mr Lynch will be concluded finally.

4. My concern with such an approach is that it will leave, completely untested, a range of significant matters envisaged and, in fact, required to be considered, by Part VII of the Act, in order to determine what orders are in [X]’s best interests.

5. I have raised these concerns in the judgement under appeal.  Moreover, and this comment also relates to the substantiality of the grounds of appeal, Mr Howard confirmed that there was, and is, no issue about

   
   

   Mr Lynch being able to bring proceedings to clarify any orders made in relation to Mr Lynch and [X].  He also confirmed that the Rice & Asplund appeal was confined to the consent orders solely in so far as they concern Ms Reid’s relocation.

6. As helpful and important as this information is, there are two immediate issues, as I see them, which arise from it.  First, I do not read the grounds of appeal as being so confined.  No such distinction is apparent on the face of the grounds of appeal.  Indeed, the orders sought in the appeal state very clearly, and without any qualification, that “all outstanding applications of the respondent, Mr Lynch, filed in these proceedings be dismissed”.  It is difficult to see how Mr Lynch can be permitted to seek clarification of parenting orders, or to formalise any time with his son, pursuant to judicial determination, when the Appellant seeks to have “all outstanding applications dismissed”.

7. One might also ask, not unreasonably (albeit perhaps repetitiously), how the Court is to reconcile a submission which confirms that, on the one hand, there is no issue about Mr Lynch spending time or seeking to confirm time – via a currently scheduled imminent trial - that he spends with [X], but on the other hand, orders are sought in the appeal that seek to dismiss all applications of Mr Lynch. 

8. Secondly, if there is no issue in relation to Mr Lynch seeking orders in relation to his time with [X], as already observed (and it seems not to be disputed), curiously perhaps, there has been no time spent between Father and son for many, many months – 14 months in fact.  I am advised, however, that that time is to commence, coincidentally or fortuitously, with supervised time this weekend (12^th – 13^th June).

9. A third observation might be made.  If I have understood Mr Howard’s submission correctly, namely, that the appeal relates only to the July 2009 Consent Orders and the issue of relocation, it would, therefore, follow that there is no impediment to the trial currently listed for the end of June proceeding, so as to clarify the time that Mr Lynch spends with [X].  That part of the trial would clarify the “time with” aspect of the Consent Orders of last year. And even if the Rice & Asplund/consent orders/relocation appeal was heard before the end of June (or anytime soon), and it was upheld, the parenting or “time with” aspect of the proceedings would go ahead, in any event.

10. Indeed, in the light of Mr Howard’s confirmation that the appeal is only concerned with relocation/consent orders and Rice & Asplund, and that, therefore, there is no impediment to seeking clarification of [X]’s time with his Father, one might wonder how much cost-saving may actually be achieved since, presumably, there will have to be some preparation in relation to the “spending time with” side of the proceedings.

11. I simply repeat that, for my part, [X]’s best interests are a very significant consideration in this Application, as they were in the Application now under appeal.  Those interests are served by resolving, on a final basis and as soon as possible, the issues before the Court.

12. Moving on to the next issue to consider: I have already addressed, briefly, the matter of delay.  Put another way, I do not understand that delay, which may arise as a consequence of the appeal, is intended to comprehend what I have earlier described as reasonably legitimate tactical considerations. 

13. Next, in relation to the substantiality of the appeal grounds, Mr Howard said two things.

14. First, he said he did not wish to get into a debate about each of the grounds of appeal.  Secondly, he indicated that, accepting that he did not draft them, he expected that not all of the grounds of appeal would be pressed.  He did not indicate – and it is no criticism of him given that he was appearing only as an agent – which grounds of appeal would or would not be pressed. 

15. I did, however, note to Mr Howard, by way of example, the curiosity of Ground 8 in the Grounds of Appeal.  It avers that I was in error for having some presumed control over the transcription of the proceedings on 20^th April.  For the record, I will read that Ground of Appeal.  In the Notice of Appeal filed on 13^th May 2010, Ground 8 states:

    The Federal Magistrate erred in not having his reasons for judgment recorded, so as to enable a transcription to be obtained.

16. With respect, such a ground is of a high order of novelty.  I was completely unaware that I had such power to effect or otherwise to manipulate, the transcription of proceedings in open court, or elsewhere, for that matter.  Indeed, given the labyrinthine, arcane and utterly mysterious operations of all matters concerning the oxymoronically called “information technology” in the Court (I understand that the transcription service operates, remotely, somewhere out of Brisbane), I would not know even who to contact, or how to do so, in order to find out how to achieve the nefarious conduct of which I stand accused in this ground of appeal.

17. Indeed, at its most bald, one reading of this ground of appeal in effect accuses a judicial officer of interfering with the transcription of proceedings before the court.  If that be the case, and I assume that it is/was not the intention of those responsible for drafting the appeal papers, nonetheless, on one view, on its face that is how it reads.  As such, this ground of appeal is remarkable in the extreme, especially since it comes from such experienced lawyers who act for Ms Reid.

18. In the absence of being offered specific argument on any of the particular grounds of appeal – and again, I note that Mr Howard was appearing as agent, not as principal – in my view, it would be both tedious and inapt to comment on the substantiality of each of the grounds of appeal.  In the absence of any “contradictor”, it would be something of a soliloquy.

19. My reasons for the order under appeal will stand or fall according to the view(s) of the Full Court, however constituted.  It is not for me to argue the merits of my own reasons, even in the absence of submissions from the Applicant/Appellant, as to why they are said to be in error.  There may be some who would take the view that a party who refuses, or who chooses not to argue in support of their grounds of appeal should, as a matter of course, have their Application for a stay dismissed.

20. However, I do not take this view on this occasion.  Mr Howard was clearly following instructions, in which case it is a matter that should be taken up with his principal. 

21. The penultimate ground to consider relates to custodial arrangements.  As currently proposed there are to be no such changes.  Accordingly this ground has no work to do here. 

22. In so far as to grant/or not grant a stay would render the appeal nugatory, in a great many aspects, as canvassed with Mr Howard and all those present on the hearing of the Application, given that there has been an indication that it may be possible to hear the appeal reasonably soon, I do not see that the failure to grant a stay would, in fact, render any appeal nugatory at all.  Indeed, given that not dissimilar issues, and particularly relocation, will be addressed in the L proceedings, and given that Ms Reid has indicated that she will not relocate without an order of the Court, it is rather difficult to see what prejudice she could suffer in not granting the stay. 

23. And further, given that Ms Reid has confirmed, through Mr Howard in open Court, that she has no opposition to Mr Lynch seeking clarification of the “Consent Orders” in so far as they relate to

    
    

    Mr Lynch spending time with [X], and therefore the proceedings in Wagga Wagga can continue as planned at the end of June, it is puzzling to see what can be lost to Ms Reid in the stay not being granted.  The appeal will proceed; [X] will continue to live with her; Ms Reid has now – albeit very recently – made arrangements for [X] to commence to spend [supervised] time with his Father at the local contact centre; there was even a suggestion that, if the time with Mr Lynch and [X] goes well, it would move then to larger periods of time, and for it to become unsupervised.  Doubtless all such things can and will be canvassed at trial.

24. In short, because (a) the appeal is likely to be heard in the not too distant future, (b) Ms Reid will not relocate with Court sanction, (c) relocation will be the subject of the L proceedings in any event, and (d) this Court will not deliver judgment in the Lynch proceedings until after the appeal in that matter is heard, I do not see that refusing the stay will render the appeal nugatory.

25. With such concerted, if not almost fierce, opposition to Mr Lynch's Application (now confirmed only in relation to relocation), and given that relocation is a key element in the L proceedings, and given the expressed concern about cost-saving, one could almost be forgiven for thinking that there is something more behind the significant resources being expended now by Ms Reid prior to the trial.  One hopes that the penumbra in which we all operate at the moment will become clearer at the trial.

26. Permit me to observe that the whole object which both courts, that is the Full Court and this Court, are seeking to achieve is the most expeditious resolution of these proceedings for the benefit of all concerned.

Conclusion

1. By way of summary (and with apologies for the obvious repetition), given that (a) there is to be a trial at the end of this month in the proceedings between Ms Reid and Mr L, (b) that trial necessarily also involves relocation, (c) that trial is to proceed in any event, and (d) Ms Reid has confirmed that she will not relocate without court order, and given that, in my view, there will be no change in any residence, or any other substantive change in relation to any parenting arrangements unless and until there are orders made following trial, I have quite some difficulty in seeing any prejudice to Ms Reid in the stay not being granted. 

2. I accept, of course, that there is not very much time now between the orders today and the end of June, so that preparation for trial will be something of a challenge.  However, Ms Reid is represented by very experienced solicitors.  Mr Lynch is self-represented.  Both parties have known since February that a concurrent trial was a distinct possibility.  Since the end of April, both parties have known the dates listed for trial.  They are, so to speak, in the same boat.  But the experienced solicitors, one would reasonably assume, have very significant expertise and resources available to them which Mr Lynch clearly does not.  Ms Reid and her attorneys patently have the advantage in this respect.

3. Indeed, I was advised by Mr Howard that Mr Nicholson, of Counsel, has been briefed on behalf of Ms Reid.  He is an extremely experienced Counsel, well versed in the trials and tribulations associated with the preparation of matters of all kinds for trial.  It has been the choice of Ms Reid’s lawyers to pursue a different path, namely the appeal, as opposed to a final hearing: and on what Mr Howard tells the Court, only in relation to relocation, not in relation to parenting orders.  It is their prerogative to do so.  I make no criticism of them in this regard, express or implied.

4. In my view, if there is any hardship involved if a stay is refused and the trial proceeds, it likely falls more heavily on Mr Lynch than on

   
   

   Ms Reid. For example, in the course of the hearing of the current application, Mr Lynch noted his significant expertise and experience as a [occupation omitted].  Whether and if so how he proposes to marshal evidence in this regard in the time between now and the trial without the resources that come with legal representation remains to be seen.  He also confirmed that he currently has an application to work in the State school system with the Department of Education (NSW).  It would appear that that application is “on hold” until after the resolution of the current proceedings.

5. And I confess, I have some small difficulty in the submission that

   
   

   Ms Reid is content to forego her proposed move to [C] for a year or more if the Lynch proceedings have to be postponed for whatever reason.  It seems rather astonishing that an engaged couple who plan to marry later this year would not be quite keen to know, with as much certainty as possible, and as soon as possible, whether the planned relocation will be sanctioned by the Court.

6. A trial sooner rather than later would, it seems to me, be to everyone’s advantage.  It would also allow to be explored whether Ms Reid’s new partner-to-be has any capacity to move to the [W] area, thereby obviating the relocation issue(s) completely.

7. In short, in my view it is in [X]’s best interests, and that of his parents, if the currently listed trial proceeds at the end of June.  In my view, the stay application should be refused. 

8. If there is to be any application in relation to the costs of the unsuccessful stay application, I will hear submissions at an appropriate stage of the trial in [W] at the end of the month.

9. Orders will be made accordingly.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Neville FM

Associate: 

Date:  11^th June 2010