Rilak and Tsocas (No 6)

[2015] FamCA 1020

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO 6) [2015] FamCA 1020

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the mother seeks a stay of substantive parenting Orders which in effect change the residence of the child from living with the mother to the father – Where the mother has filed an appeal against those Orders – Where it was found that the child is at grave risk of psychological harm in her mother’s care – Consideration of the best interests of the child – Where the mother’s appeal has little or no chance of success – Where a stay was granted to facilitate the substantive orders and other orders were varied or stayed by consent –Where the mother’s application was otherwise dismissed.

Family Law Act 1975 (Cth)
Trahn & Long (No 2) [2008] FamCAFC 194

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 20 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATES: 17 November 2015

REPRESENTATION

APPLICANT MOTHER IN PERSON

COUNSEL FOR THE RESPONDENT 

FATHER:

Mr Levy

SOLICITOR FOR THE RESPONDENT FATHER:

Watts McCray Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

1. By consent the operation of Order 13 made on 13 November 2015 is stayed pending the disposition of the appeal initiated by the mother by her Notice of Appeal filed 17 November 2015.

2. By consent orders 2, 4 and 30 made on 13 November 2015 are varied to provide as follows:

   (2)Without requiring the permission and/or consent and/or signature of the mother, Mr Tsocas (“the father”) is to apply within 14 days from the date of these Orders to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that “B Ranis” be registered as “B Ranis-Tsocas ” (“the child”)

   (4)Within 14 days from the date of these Orders, the father shall serve a sealed copy of these orders upon the Registrar of Births, Deaths and Marriages.

   (30) The father shall advise the mother immediately if the child suffers illness or injury requiring hospital admission, including details of any medical practitioner, specialist or hospital attended upon.

3. By consent the father shall notify the mother in writing no later than 14 days after forming an intention to move from his residential address and provide the mother the address of the child's new residence, including details of the school and any medical practitioner.

4. Orders 8, 9 and 10 made on 13 November 2015 are stayed pending the finalisation of the mother’s appeal against those orders and in lieu thereof for that period, the orders will be:

   (A) Unless the parties otherwise agree in writing, commencing not earlier than 28 November 2015, the mother may spend time with the child at: the V Park, the Shopping Centre at Suburb W, or at such other venue as is agreed to by the parents and by the supervisor, each Sunday, for a period up to three hours.

   (B) For the purposes of Order (A), the parents shall contact Phoenix Rising for Children (“PRFC”) on [phone] within seven days from the date of this Order and do all things and sign all documents to arrange for that agency to supervise the mother’s time with the child;

   (C) The supervision will be paid for by the mother and the parents will comply with all rules, directions and reasonable requests of PRFC;

   (D) Unless the parties otherwise agree, the mother’s time will commence with the father delivering the child to the mother and the supervisor at the commencement of each occasion and collecting her from them at the conclusion of each occasion; and

   (E)The father is at liberty to provide a copy of the judgment delivered in these proceedings on 13 November 2015 to PRFC.

5. It is a further condition of order 4 that the mother diligently prosecutes her appeal.

6. Otherwise the mother’s application for a stay in respect of parenting orders made on 13 November 2015 in relation to the child B born on … 2010, is dismissed.

7. Any cross-appeal on behalf of the father be filed and served within 14 days.

8. The Court noted that the mother intends to seek expedition of her appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas No 6 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 SYDNEY

FILE NUMBER:  SYC2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings for a stay in relation to certain parenting orders contained in orders for property settlement and parenting made on 13 November 2015. The mother filed a Notice of Appeal on 17 November 2015 in relation to some of the parenting orders and seeks a stay of certain orders in aid of her appeal.

2. The parenting proceedings related to the parties’ daughter, the child B Rilak-Tsocas formerly B Ranis (“the child”) who is five years of age. 

The Background

1. The father was born in 1957 and he is 58 years of age.  The mother was born in 1967 and is 48 years of age.  The parents met in August 2008, started living together on 14 November 2008 and were married in 2008.  the child is the only child of the parents’ relationship and was born in 2010.  The parents separated on a final basis on 9 February 2010. 

2. The parenting proceedings ultimately involved the mother’s application that she and the father have equal shared parental responsibility of the child and that the child continue to live mainly with the mother and spend time with the father on alternate weekends. The father sought that he have sole parental responsibility, that the child live with him and have only supervised time with the mother. The parties disagreed about the child’s surname, about her being vaccinated for some diseases and conditions and the manner in which that should be undertaken.

3. The key issues in the parenting proceedings arose from the mother’s belief that the father has sexually and otherwise physically abused the child and the father’s contention, supported by the opinion of the single expert, that the child is at grave risk of psychological harm in her mother’s care. 

4. The final hearing was conducted over 10 days in three phases, commencing in January 2015 and concluding on 7 August 2015. Judgment was delivered on 13 November 2015. The key components of the parenting orders made on 13 November 2015 were that:

   ·the father have sole parental responsibility;

   ·the child live with her father and have time with her mother once a week at a supervised contact centre;

   ·the child’s name be changed to “B Rilak-Tsocas”;

   ·the child communicate with the mother by telephone or Skype twice a week for half an hour;

   ·the child be vaccinated at X Hospital in accordance with the recommendations of Dr Y;

   ·the mother be restrained from approaching the child and certain premises;

   ·the parents be restrained from denigrating each other and members of the extended family and from discussing the proceedings in the presence or hearing of the child;

   ·the mother be restrained from removing and/or causing or allowing the child to be removed from the Commonwealth of Australia;

   ·the father is permitted to travel overseas with the child;

   ·the parents attend upon a family therapist;

   ·the father keep the mother informed as to any school enrolment he makes for the child and shall do nothing to prevent the mother from obtaining information about the child’s progress directly from the child’s school; and

   ·the father advise the mother immediately if the child suffers illness or injury requiring hospital admission and not less than once each week the father send to the mother an email about the child’s health, general welfare and activities.

5. By her Notice of Appeal filed 17 November 2015 the mother challenged the following orders:

   (5)The father shall have sole parental responsibility for long-term decisions about [the child].

   (6)[the child] shall live with the father.

   …..

   (13)The father shall be at liberty to arrange for the child to be vaccinated at [X Hospital] in accordance with the recommendations of [Dr Y].

   ….

   (15)Unless the parents otherwise agree in writing, the mother be restrained from approaching:

   (a)the child, except in accordance with these Orders;

   (b)the residence of [the child] or the premises in which she is staying from time to time, except in accordance with these orders; or

   (c)any pre-school or school that [the child] might attend from time to time, or any place where [the child] participates in extra curricular activities.

   ….

   (17)The mother is restrained from removing and/or causing or allowing the child to be removed from the Commonwealth of Australia.

   (18)The Court requests that the Australian Federal Police place the name of [the child] (Female) on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain [the child] on the Watch List until 25 January 2028, save that the Court noted that the father is at liberty to remove the child from the Commonwealth of Australia in accordance with Order (21) hereof.

   (19)The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders.

   (20)The father is at liberty to apply for a passport and or renewal of a passport for [the child] without first obtaining the consent of the mother.

   (21)Pursuant to section 65Y(2)(b) of the Act, the father is at liberty to travel overseas with [the child]. 

6. The father consented to a stay being granted in respect of Order 13 which relates to immunisation, but otherwise he opposed the mother’s application for a stay.

7. Although outside the scope of the application for a stay, the mother also sought some changes of wording to some orders proposed by the mother. The father agreed to some but not all of the mother’s proposals and after confirming those matters with the mother I indicated that I would make those changes by consent.

The Stay Proceedings

1. In Trahn & Long (No 2) [2008] FamCAFC 194 the Full Court addressed the principles relevant to granting a stay of parenting orders in the context of an appeal against those orders. It said:

   These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and 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 included 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 “special” or “exceptional” circumstances;

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

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

   ·the mere filing of an appeal is insufficient to ground 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 the 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 a stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings.

Discussion

1. In addressing those matters in the context of this case: the onus to establish a proper basis for the stay is on the mother but she is not required to demonstrate “special” or “exceptional” circumstances. The father is entitled to the benefit of the judgment under appeal. An appeal proceeds on the basis that the judgment at first instance is correct. There is no automatic stay brought about by the filing of an appeal.

2. As to the bona fides of the mother, in my view her appeal and application for a stay are sincerely sought and sought for their stated purpose. In the substantive judgment I noted some minor matters in respect of which I thought the mother was being disingenuous but on the whole I accepted her bona fides at first instance and accept it in relation to her appeal.

3. A stay may be granted on terms that are fair to all parties – this may involve a court assessing the balance of convenience and the competing rights of the parties. The mother submitted that if the specified orders were stayed and the arrangements for the child returned to those that applied prior to 13 November 2015, that would be fair to both parties. She noted that under the prior orders, the child was with the father for 43 percent of the time and that allowing for the distance between the two households, that was a fair arrangement. With respect to her, I would understand the concept of fairness to relate to the cases advanced by the parties rather than the proportions in which the child’s time is divided between the households. In the context of a stay application, the concept of dividing the child’s time fairly, sits uncomfortably with the serious concerns going to the best interests of the child. I accept that a stay could be granted on conditions which could seek to find a middle ground between the parties’ proposals but the issue of the need for supervision of the mother’s time with the child makes a simple compromise between the parties’ proposals very difficult.

4. There is a concession to the effect that without a stay, the appeal against the orders for vaccination would be rendered nugatory. Although both parties ultimately sought orders for vaccination, they differ about the particular vaccines and who should administer them. The mother did not contend that, without a stay her appeal in respect of the other orders would be rendered nugatory. However, to the extent that the mother’s appeal goes to the potential harm to the child from being removed from her primary care and thereafter, having very limited contact with her mother, depending on the time taken to deal with the appeal, there must be a concern that harm will be done before the appeal can be determined.

5. On the other hand it was submitted on behalf of the father that if a stay was granted, that may itself render aspects of the appeal proceedings nugatory. The submission was to the effect that if the grave risk to the child was ignored then the potential harm predicted by the single expert could come to pass and the appeal would in effect be decided by reference to the fact of that damage. There may be something in that submission. If, for example, the appeal took more than 12 months to determine, there is a risk that the harm identified by the single expert psychiatrist may come to pass. In that time false memories of abuse could be well established in the child’s mind and her relationship with her father, irreparably damaged.

6. I am to make a preliminary assessment of the strength of the appeal. The mother’s Notice of Appeal contains 15 grounds. In my view, as the grounds are presently framed, the appeal has little or no chance of success. For example, grounds 1, 5, 7 and 8 assert that certain issues were ignored. It is correctly submitted on behalf of the father that those issues were addressed in the judgment.  

7. At grounds 13, 14 and 15 there are bare assertions about bias, discrimination and a denial of natural justice. Without more, it is difficult to see how those grounds could succeed. It should be noted that in these proceedings there had already been an application for my recusal and the refusal of that application was the subject of an unsuccessful appeal. As I interpret them, grounds 2, 3, 4, 5, 6, 9, 10 and 11 assert that the outcome of the orders is wrong, inconsistent with the Family Law Act1975 (Cth) and/or United Nations Conventions. My reasons for judgment address the facts against the legislative requirements. I do not recall the mother’s counsel raising international conventions in her submissions at first instance. Insofar as the conventions deal with child abuse, it was the mother’s case that I could not find that the child was sexually or otherwise physically abused by the father nor that there was an unacceptable risk of such abuse. Some of the grounds are therefore, inconsistent with the mother’s own case. Other grounds may be interpreted to assert that insufficient attention or weight was given to certain considerations over others. In my view it will be difficult for the mother to point to appellable error on those bases.

8. As I mentioned to the parties during submissions, the grounds are those framed by the mother, presumably without legal advice and on an urgent basis. The appeal had to be filed urgently so as to ground the mother’s application for a stay. Of course the mother will be able to amend her grounds and it may be that by way of amendment, a stronger basis for challenging the orders is later identified.

9. In my view the only matter supporting the granting of a stay is the desirability of limiting the frequency of any change in a child’s living arrangements. If a stay is granted then potentially, one unnecessary change would be avoided. If the appeal succeeds to a substantive extent, then the change that would occur without a stay would have been unnecessary and would have to be reversed. If the appeal fails then whether there is a stay or not, there will be only one change of living arrangements for the child.  In this case the changes are very significant. First and foremost, a change from living primarily with the mother to living with the father all of the time and having only limited time with the mother and even then, only on a supervised basis, will be a very significant change for the child. The order I have made will involve the child in the dislocation and distress associated with being removed from her mother’s care and being thereafter separated from her mother. As is referred to in the substantive judgment, Dr C identified the difficulty that the child is likely to have with such a dramatic change.

10. The second element of change arises because the child starts school in 2016. Even if the hearing of the mother’s appeal is expedited, it is not likely that the appeal could be determined prior to the start of the school year. Therefore there is a risk of the child having to change schools. In this regard however, the risk is the same whether the stay is granted or not. If the orders are stayed and the appeal is successful then a change of school would be avoided. If the orders are stayed and the appeal is dismissed then the child will change schools. If the stay is refused and the appeal is successful then the child will change schools. If the stay is refused and the appeal is dismissed, she will not have to change schools.

1. Of course, Dr C reported that the potential distress and harm associated with the removal of the child from the mother can be ameliorated by professional assistance and sensitive parenting by the father. I found that the father would be able to assist the child in those circumstances. Importantly, however, the risk itself must be balanced against the risks to the child that I found to be a feature of the mother’s household.

2. There is no evidence before me about the period of time in which the appeal can be heard. Counsel for the father asserted that advice he had been given in a recent case suggested that an appeal could take more than 18 months from the date of settling the appeal books.

3. As to whether existing satisfactory arrangements may support the granting of a stay for a short period of time, although in the same breath criticising the arrangements, the mother asserted that the current arrangements should be seen as satisfactory. I came to a different conclusion in my judgment and I am not free to simply make a different decision now. During her submissions, the mother sought to make representations about her conduct since the final hearing and her adherence to advice and orders during that period. I had found that the mother had ignored advice and Court orders about interrogating the child and pursuing forensic enquiries. I explained to the mother that she could not introduce evidence about those matters by way of submissions.

4. Finally, it is relevant to consider the best interests of the child. I have reviewed the evidence, heard the submissions and found that the orders I propose would be in the best interests of the child. I have weighed the competing risks and have found that the child’s primary residence should change and that for the time being, her time with her mother should be supervised. I may be wrong but I am not permitted to assume that to be the case. It follows that this consideration favours a refusal of the mother’s application that the operative parenting orders made on 13 November 2015 be stayed.

5. The parties have agreed to stay the immunisation order and for reasons that are canvassed below, it is appropriate to stay the operation of the orders for supervision on terms that provide another mechanism for supervision. However, taken together the factors discussed above favour refusing a more extensive stay. There is a grave risk to the child in the mother’s care. It is not matched by the potentially adverse impact of the change involved in the orders I have made and that adverse impact can be ameliorated by the father and by professional support.

The Mother’s Application

1. The mother’s application seeks a number of orders, some of them are orders in the alternative. I will briefly address each order sought:

   4.That the Orders 5, 6, 13, 15, 17, 18, 19, 20 and 21 of the Final Orders delivered on 13 November 2015 are stayed until the decision is made by the Appeal Court and reverse the residency of the child (“B”) and that she lives with [Ms Rilak] (“the mother”).       

2. This is the primary stay application and has been addressed above.

   5.That, if the Order 4 is not granted, That the child spend time with the mother every weekend from 1:00pm on Friday to 6:00pm on Sunday, with the child to be collected and delivered by parents to the McDonald’s Family Restaurant at [Z Street, Z Town].

3. This is an alternate proposal, in the event that Order 4 is not granted. The mother seeks that the pre 13 November 2015 arrangement be reversed, with the child living with the father during the week and with the mother on the weekend. It would mean that the child could commence school from the father’s home and avoid a potential change of school if the mother’s appeal is unsuccessful. However, it does not provide for supervision of the mother’s time. That was a requirement of the substantive orders that was based on the recommendation of the single expert and in my view must weigh heavily against the mother’s alternate proposal.

   6.That the order 2 reads:

   Without requiring the permission and/or consent and/or signature of the mother, [Mr Tsocas] (“the father”) is authorised to apply within 14 days from the date of these Orders to amend the registration of the child’s name with the Registrar of Births, Deaths and Marriages such that “[B Ranis]” be registered as “B Rilak – Tsocas” (“[the child]”)

4. This relates to an order that is not the subject of the mother’s appeal. In truth the change is meaningless because where an order is silent as to the time for execution one would import “as soon as practicable” or some similar term. However, as I have indicated, the parents agree to the proposed change and I will make it.

   7.That the Order 4 reads:

   Within 14 days from the date of these Orders, the father shall forthwith serve a sealed copy of this order upon the Registrar of Births, Deaths and Marriages.”

5. This order sought falls into the same category as Order 6 sought by the mother, above. I will make this change by consent.

   8.That if the Order 5 is not granted, the Order 8 reads:

   “Unless the parents otherwise agree in writing, subject to Order (9) herein, the child shall spend time with [Ms Rilak] (“the mother”) at such times and on such dates as may be arranged with and supervised by Phoenix Rising for Children (PRFC) – organisation providing supervised contact.”

   9.That if the Order 5 is not granted, the Order 9 reads:

   “Unless the parties otherwise agree in writing, the mother’s time with the child pursuant to Order (8) herein shall:

   (a)commence not before 7 days after [the child] commences living with the father;

   (b)occur on a Saturday or Sunday, at the [V Park, Suburb W] or at the [Suburb W]… Shopping centre during wet weather; the mother be at liberty to spend up to 6 hours commencing at 10am;

   (c)occur at the equally shared expense of the parents;

   (d)the mother be at liberty to take her family member(s) to spend time with the child;”

   10.That the Order 5 is not granted, the Order 10 reads:

   “For the purpose of Order (8) above, each party shall:

   (a)contact Phoenix Rising for Children (PRFC) on [phone] within seven days of the date of these Orders and arrange an appointment for supervised contact service an intake assessment;

   (b)attend the assessment sign all necessary documentation by the parties and return to PRFC no later than by 4pm on Tuesday, 17 November 2015; make payment in timely manner

   (c)comply with all reasonable rules of PRFC; and

   (d)comply with all reasonable requests or directions of the staff of PRFC;

6. Orders 8, 9 and 10 were not the subject of specific submissions by any party.

7. A matter that was identified in the substantive judgment was the assumption that the arrangements for supervision proposed by the father and the Independent Children’s Lawyer (“ICL”) were practicable and that arrangements had been made to put supervision in place. On delivery of judgment that proved not to be the case. The ICL made some enquiries that day and found that there were waiting lists of the order of four months for subsidised placements at Suburb J Interrelate and at a E Town centre. I understood him to say that paid placements would be available in the medium term, at least at one of those centres. Therefore, if the child is to see her mother in the short and medium term, some changes are required to the orders.

8. The details of supervision was not an issue agitated to any extent during the substantive hearing. Dr C recommended that in the event of a change of residence, the mother’s time should be supervised at a contact centre. She was not challenged about that. That would necessarily imply that the time was restricted to two or three hours. As opposed to her primary application for a stay (paragraph 4) and her first alternate position (paragraph 5), this alternate proposal by the mother preserves the element of supervision. Two issues arise here: first, whether anything would be lost by way of supervision if a stay was granted to provide for supervision by an agency and outside a centre; and second, the question of cost.

9. As to the first question, it is not obvious what would be lost. A concern flagged in the substantive judgment was the problem of effective supervision against the mother’s abusive conduct in circumstances where she is unlikely to converse with the child in English. For reasons given in that judgment I did not accede to the father’s application that the mother be restrained from communicating with the child, other than in English. On balance there is nothing about supervision, whether by a private agency or a contact centre that will ameliorate the risks in this regard. In both instances, apart from a suspension of the mother’s time, the immediate safeguard will be that if the child (or the mother) becomes agitated or distressed then I would expect that the supervisor would terminate the particular session.

10. As to cost, the mother has not identified what costs would be involved in her proposal. The parties are not in robust financial circumstances, in significant part because of the cost in time and money associated with these proceedings. Without an assurance from the father that he could fund whatever costs are associated with the mother’s proposal, I cannot safely require him to do so. I will require that the mother pay the costs associated with her proposal.

11. Of course the parents could reach an agreement about this or any other issue.

12. In light of the fact that the orders for the mother’s time pronounced on 13 November 2015 are not immediately practicable, I will grant a conditional stay of orders 8, 9 and 10 so as to put in place some time with the mother and to replicate the type of arrangement that would be experienced at a contact centre. The order will be in the following terms:

    Orders 8, 9 and 10 made on 13 November 2015 are stayed pending the finalisation of the mother’s appeal against those orders and in lieu thereof for that period, the orders will be:

    (A) Unless the parties otherwise agree in writing, commencing not earlier than 28 November 2015, the mother may spend time with the child at: the V Park, the Shopping Centre at Suburb W, or at such other venue as is agreed to by the parents and by the supervisor, each Sunday, for a period up to three hours.

    (B) For the purposes of Order (A), the parents shall contact Phoenix Rising for Children (“PRFC”) on [phone] within seven days from the date of this Order and do all things and sign all documents to arrange for that agency to supervise the mother’s time with the child;

    (C) The supervision will be paid for by the mother and the parents will comply with all rules, directions and reasonable requests of PRFC;

    (D) Unless the parties otherwise agree, the mother’s time will commence with the father delivering the child to the mother and the supervisor at the commencement of each occasion and collecting her from them at the conclusion of each occasion; and

    (E)The father is at liberty to provide a copy of the judgment delivered in these proceedings on 13 November 2015 to PRFC.

    It is a further condition of that conditional stay order that the mother diligently prosecutes her appeal.

    11.That the Order 12 reads:

    “[The child] be given the opportunity to contact her mother as desired or as practical. Unless the parents otherwise agree in writing, [the child] shall communicate with the mother by electronic means each Monday, Wednesday, Friday and Sunday for the period of no less than one hour at 5pm, with either parent to initiate the call. The communication may occur by telephone, Facetime or by Skype as the parties may agree and in default, by telephone.”

13. This relates to Order 12 made on 13 November 2015 and that order is not directly the subject of the mother’s appeal. I accept that if the mother’s primary application for a stay was granted then Order 12 would be rendered meaningless. I will not stay the operation of Order 12.

    12.That, if the Order 4 is not granted, that the Order 13 reads:

    “That father shall be at liberty to arrange for the child to be vaccinated at [X Hospital] in accordance with the recommendation of [Dr Y], but not before the child’s organism is prepared for vaccination by [Dr AA] – [the child’s] treating medical practitioner.”

14. This relates to vaccination and there is an agreement to a stay. It is therefore not necessary to consider this application. It may be a typographical error but if not, I am not sure what is meant by “the child’s organism” in the mother’s proposal. I should note that at the very time when she is about to commence school, the stay will leave the child and those with whom she comes into contact, including the school community, exposed to the risks associated with an unvaccinated child.

    13.That, if the Order 4 is not granted, that the Order 15 reads:

    “The mother is at liberty to approach any pre-school or school that the child might attend and is entitled to attend all sporting, extra-curricular activities and school events, that allow for parental attendance and participation.”

15. This relates to Order 15 made on 13 November 2015 and that order is not directly the subject of the mother’s appeal. I accept that if the mother’s primary application for a stay was granted then Order 15 would be rendered meaningless. I will not stay the operation of Order 15.

    14.That if the order 4 is granted, that the Order 17 reads:

    “The mother is at liberty to travel overseas with the child.”

16. By this proposal, rather than a stay, the mother would seek to reverse the import of the orders under challenge. I will not grant the order sought.

    15.That if the Order 4 is granted, that the Order 20 reads:

    “In the event that either parent intends to travel, that parent is at liberty to apply for a passport and or renewal of a passport for the child, and that parent is at liberty do all things necessary, including completing, signing and returning to the other parent, within 7 days of receipt of same, all documents necessary, to enable a passport (and any other  document) to issue to enable the child to travel overseas.”

17. This relates to the issue of a passport for the child and that question is adequately addressed in the substantive orders. No stay is warranted.

    16.That if the Order 4 is granted, that the Order 22 reads:

    “In the event that either parent intends to travel overseas with [the child], the parent will be provided with [the child’s] passport and will provide written notification to other parent of this intention to travel 28 days prior to the proposed date of departure and provide details of the itinerary for each overseas trip.”

18. This relates to Order 22 which is not the subject of appeal.

    17.That the Order 30 reads:

    “The father shall advise the mother immediately if [the child] suffers illness or injury requiring hospital admission, including details of any medical practitioner, specialist or hospital attended upon, and that the mother is at liberty to spend time with [the child] until her release from the hospital.”

19. This relates to Order 30 which is not the subject of appeal. However, the parties agree the proposed change up to and including the words “hospital attended upon”. I will make that change by consent.

    18.That the father be restrained from smoking in his house and his car and anywhere in the presence of [the child].

20. This relates to an issue that was not the subject of orders sought in the substantive proceedings. It could not be characterised as a matter in the nature of a stay and having made final orders, I have no jurisdiction to deal with the issue.

    19.That the father be restrained to take [the child] to the swimming pool or to the beach without an adult supervision.

21. This relates to an issue that was not the subject of orders sought in the substantive proceedings. It could not be characterised as a matter in the nature of a stay and I have no jurisdiction to deal with the issue.

    20.That the father shall notify the mother in writing no later than 14 days of any intention to move from his residential address and provide the mother the address of [the child's] new residency, including details of the school and any medical practitioner.

22. This relates to issues addressed in Orders 29, 30 and 31 and they are not the subject of the mother’s appeal. Clearly undeterred by a level of hypocrisy in the mother seeking that the father notify her about his address, the parties agree to the proposed order and I will make that order by consent.

    21.The child is to spend time with the mother as follows:

    (a)on [the child's] birthday, … from 9am to 2pm in an even numbered year and from 2pm to 5pm in an odd numbered year;

    (b)on the child's name day, … each year from 9am to 6pm

    (c)on the mother's birthday, … each year from 9am to 6pm;

    (d)on the mother's name day, .. each year from 9am to 6pm;

    (e)from 9am on Christmas Eve to 12am on Christmas day each year;

    (f)on Mother's Day from 9am to 6pm;

23. This relates to issues that are not addressed in the orders appealed from. They are not matters that should or could be the subject of a stay order. It may please the parties to agree about some of those issues.

    22.In the event that [the child] is vaccinated and is injured by the vaccination then the father is responsible for the ongoing cost of any short or long term health issues for [the child] caused by the vaccination including but not limited to all medical consultations, all medical or health procedures, all medications or supplements, any herbal remedy or alternative medicine, associated with [the child's] post-vaccine health issues. That this Order operates as a right in rem against the father and his property, both real and persona.

24. This relates to an order sought by the mother at first instance. The order makes little or no sense in the context of the mother’s own application that the child receive two vaccines. It is not an appropriate order in any event. It is not an order that could or would be made in the style of a stay order. Finally, it is not needed because the parties have agreed to stay the requirement for vaccination.

    23. That the father will pay and support [the child] in extra curricular activities at her choice such as CMA mental arithmetic classes, swimming, tennis etc., according to his testimony from the witness box in August 2015.

25. This relates to child support, is not the subject of the orders appealed from and could not be granted in the form of a stay order in any event.

26. Taken together, the considerations identified in the authority cited require that, except in respect of Order 13, and as otherwise proposed above, the mother’s application for a stay be dismissed.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 20 November 2015.

Associate: 

Date:  20 November 2015