RIMMINGTON & HEALEY

[2013] FamCA 5

FAMILY COURT OF AUSTRALIA

RIMMINGTON & HEALEY [2013] FamCA 5

FAMILY LAW – CHILDREN – Stay application – where it was ordered the children do not spend time or communicate with the father – where the father sought a stay of the final orders and the existing interim orders and sought to return to a regime that was a prior interim arrangement – where no substantial ground for appeal is clear – where failure to grant the stay would not render the appeal nugatory – where it was held it would cause hardship to the mother if she was ordered to facilitate the children spending time face to face or by electronic means with their father – where it was not in the children’s best interests to resume time with the father – stay refused

Family Law Act 1975 (Cth)

EJK & TSL (No. 2) (2006) 35 Fam LR 590

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT: Mr Rimmington

RESPONDENT: Ms Healey

INDEPENDENT CHILDREN’S LAWYER: Maureen Power

FILE NUMBER: SYC 1762 of 2009

DATE DELIVERED: 15 January 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Dettmann Longworth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Order

1.The father’s Application in a Case filed 7 November 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimmington & Healey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1762 of 2009

Mr Rimmington  

Applicant

And

Ms Healey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The father, by way of an Application in a Case filed 7 November 2012, applied for orders, inter alia:

   CHILDREN’S CONTACT WITH THEIR FATHER

   7.Order 5 made on 18 September 2012 by His Honour Justice Watts terminating the children’s paternal relationships be “stayed”.

   8.Order 9 made on 26 July 2012 by His Honour Justice Watts terminating the children’s paternal relationships be “stayed”.

   9.Order 11 [sic: this should read order 10] made on 26 July 2012 by His Honour Justice Watts be amended by deletion of the words: “or the children or either of them”.

   10.Order 3 made on 6 October 2011 by His Honour Justice Loughnan for the children to spend fortnightly time with their father at Children’s Contact Centres be restored with immediate effect.

   AND/OR in the alternative to the preceding Order 10 proposed herein:

   11.Order 4 made on 6 October 2011 by His Honour Justice Loughnan for the children to communicate weekly with their father via ‘skype’ or similar internet/video facility be restored with immediate effect.

   CHRISTMAS AND BIRTHDAYS

   12.Order 11 made on 18 September 2012 [sic: this should read 19 September 2012] by His Honour Justice Watts be amended by deletion of the words: “if she is of the view that those items are appropriate for the children to receive”.

2. The father did not press the applications contained in paragraphs 1 to 6 of that document.

3. On 19 September 2012 I made final orders in this matter and published my Reasons for Judgment. The orders, inter alia, provided that the mother have sole parental responsibility for B born in January 2008 and A born in January 2008 (“the children” or “the twins”) (order 1); that the children live with the mother (order 2) and the father be restrained from spending time with or attempting to contact or approach the children or attending the children’s school or any of the children’s extra curricular activities from time to time (order 5). I also made an order to permit the father to forward to the twins cards and appropriate gifts for their birthday and each Christmas (order 11).

4. At the time the final orders were made, the father was not having any face to face time with the children or communicating with them as a result of ex parte orders that I made on an interim basis. Those orders are dated 26 July 2012 and are in the following terms:

   8. Pending further order, the mother have sole parental responsibility for the children [B] born … January 2008 and [A] born … January 2008 (“the children”).

   9. Pending further order, the children not spend time with or communicate with the father and any order requiring such time or communication is suspended.

   10. Pending further order, the father be restrained from approaching, contacting or communicating with the mother or the children or either of them.

   11. The father have liberty on 7 days notice to the mother’s lawyers and the Independent Children’s Lawyer to seek a reconsideration of the ex parte orders.

5. At the time those orders were made, the matter had been the subject of evidence during the final stage of a less adversarial trial (12 – 16 March 2012; 19 – 22 March 2012; 16 – 17 April 2012). Because of an event that took place whilst my judgment was reserved, fresh evidence was taken on 18 September 2012 prior to the delivery of the final judgment.

6. Prior to the orders of 26 July 2012, the orders that were in existence were consent orders made by Loughnan J dated 6 October 2011. Those orders are in the following terms:

   3.That pending further Order, and subject to the availability of either facility, the children spend time with the father on alternate weekends at either [Town I Contact Centre] or [Town C Contact Centre] as follows:

   (a)all visits to be supervised by the staff of the [Town I Contact Centre] or [Town C Contact Centre];

   (b)all visits to be conducted within the premises of either the [Town I Contact Centre] or [Town C Contact Centre];

   (c)the father to pay any fees associated with such visits as charged by the [Town I Contact Centre] or [Town C Contact Centre].

   (d)For the purposes of this Order, any ‘alternate weekend’ may include a Friday.

   (e)on any alternate weekend as contemplated, and subject to the availability of either [Contact Centre], there may be up to 2 visits over 2 consecutive days which shall both be at the same centre.

   (d)the father to give the mother no less than 7 days notice of the nominated days of the relevant alternate weekend, such to be given by email to the maternal grandfather at ‘…’.

   4.That pending further Order:

   (a)the mother shall encourage and assist the children to communicate with the father by electronic means via ‘skype’ or similar internet/video facility at any agreed times and failing agreement on Wednesdays at 6PM. The Court Notes in this context that at the date of these Orders the ‘Skype’ sessions last between about 20 & 45 minutes.

   (b)the father is restrained from, in the course of any ‘skype’ sessions he has with the children, communicating with, or attempting to communicate with, the mother;

   (c)in the event the father attempts to communicate with the mother in the course of any ‘skype’ sessions he has with the children, the mother is entitled to immediately terminate such session. (emphasis in original)

7. Both the mother and the Independent Children's Lawyer orally indicated that they oppose the father’s stay application. Paragraph 3 of the mother’s affidavit sworn 21 November 2012 also indicated her opposition to the stay.

8. As at the date of the hearing of the stay application, the children have not seen or communicated with their father since 20 July 2012.

DOCUMENTS RELIED UPON

1. The documents that I had in this application were as follows:

   9.1.     Father’s Notice of Appeal filed 15 October 2012

   9.2.     Father’s Amended Notice of Appeal filed 31 October 2012

   9.3.     Father’s Application in a Case filed 7 November 2012

   9.4.     Father’s affidavit sworn 7 November 2012

   9.5.     Father’s affidavit sworn 19 November 2012

   9.6.     Mother’s affidavit sworn 21 November 2012

   9.7.     Mother’s case outline dated 23 November 2012

   9.8.     My Reasons for Judgment dated 19 September 2012

REASONS FOR JUDGMENT

1. In my Reasons for Judgment dated 19 September 2012, I said, inter alia:

   10.1. The mother was seeking sole parental responsibility for the children and that the children reside with her. The mother’s proposal was that the father spend no time with the children (paragraph 13). The mother’s primary position was that there not be any skype communication between the father and the children, but if there was to be face to face time, then she did not oppose the orders suggested by the Independent Children’s Lawyer for communication on a weekly basis by electronic means (paragraph 25).

   10.2. Dr S (the mother’s treating psychiatrist) was of the view that “provided the family court proceedings can be appropriately resolved and that the children’s safety [is] ensured, [the mother’s] prognosis for the future is good” (paragraph 266).

   10.3. The mother swore an affidavit in which she said “I do not request my primary position of ‘no time’ lightly and I continue to give deep reflection to the Orders that I seek in these proceedings. After [the father’s] recent actions leading up to and on Friday 20 July 2012, I now strongly believe there is no system of supervision that will keep the boys safe from [the father] ever” (paragraph 315).

   10.4. At paragraph 335 and 336, I said:

   335. The mother’s proposal if the children are with her is that they spend no time with the father and do not communicate with the father.

   336. To impose upon the mother a requirement that they do so is not a proposal which is in the children’s best interests for reasons articulated primarily by [Dr S] who has expressed the opinion (an opinion that I accept) that the mother’s prognosis for the future is good provided that the Family Court proceedings are resolved in a way that the mother believes is appropriate and in a way where the mother believes the children’s safety is ensured.

   10.5. I found that any condition that I imposed upon the mother to facilitate a regular regime for the children to have time with their father put the mother’s mental health at risk and consequently put at risk the ability that she currently has to effectively parent the children (paragraph 357).

   10.6. I considered whether or not it would be appropriate for the children to have recognition contact with their father. I concluded it would not be. Whilst the focus of my discussion related to face to face time, it was not limited to that type of time, and referred to all types of contact (paragraph 406). Order 5 made on 19 September 2012 excludes all time and contact between the children and the father.

THE LAW APPLICABLE TO A STAY OF A PARENTING ORDER PENDING AN APPEAL

1. The Full Court in EJK & TSL (No. 2) (2006) 35 Fam LR 590 quoted, with approval, Nygh J’s comments in Clemett and Clemett (1981) FLC 91-013 and Kirby J’s comments in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 in the following terms:

   16.  It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:

   ‘In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.’

   17.  Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) was subject to ‘the best interests test’, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J 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.’

2. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court said at paragraph 18:

   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 vMyer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings ConstructionLimited 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.

IS THE APPEAL BASED ON SUBSTANTIAL GROUNDS AND IS IT NOT MERELY A DELAYING TACTIC?

1. The first thing I need to consider is whether or not the appeal is based on substantial grounds and is not merely a delaying tactic. 

2. The father filed a Notice of Appeal on 15 October 2012 which sets out three grounds of appeal. During this hearing the father handed up an Amended Notice of Appeal which he had filed on the 31 October 2012 which sets out eleven grounds of appeal. Paragraph 3 of the father’s affidavit sworn 7 November 2012 also lists five further grounds for appeal.

3. The father said in submissions that his Notice of Appeal filed 15 October 2012 “isn’t really worth the paper it’s written on.” He said he had filed it because he had “to get something for the time.” The three appeal grounds in that document are, on their face, so general that they do not provide any basis for concluding that there is a substantial ground of appeal.

4. I note the father’s Amended Notice of Appeal filed on 31 October 2012 commences by saying “this Notice of Appeal is preliminary and filed today for the purposes of satisfying the time frame under the Rules. The Appellant anticipates filing an expanded Notice of Appeal in advance of his listening to the audio transcript of the hearing. The Appellant anticipates filing a further amended Notice of Appeal after listening to that transcript.” In submissions on 23 November 2012, the father indicated that should the stay not be granted, he would appeal that decision and his “notice of appeal will then be more fully flushed [this is the word the father used] out.” As I indicated to the father, I will deal with what the father has already filed and not speculate about what the father might seek to file in the future.

5. The father in oral submissions raised a matter that does not appear to be in any of the written documents. The father asserted that I indicated that I didn’t need to listen to any of the tape recording that he made on 20 July 2012. I have recorded at paragraph 171 of my Reasons for Judgment that the father did not seek to tender that tape.

6. Some of what is in the father’s grounds in his Amended Notice of Appeal filed 31 October 2012 are arguments, commentary and extraneous information not raised by the father at trial, particularly during final submissions.

7. I only make a brief comment about the grounds raised by the father in his Amended Notice of Appeal.

Ground 1

1. The father seems to assert that the Court should have found on the evidence that the mother knowingly made a false statement about the location from which the father made a telephone call. It was open to me to find, as I did, that the mother’s recollection of what happened was unreliable, without making the finding for which the father contends.

Grounds 2, 3, 4, 5 and 6

1. These grounds deal with my comments about audio and video material tendered by the father or annexed to his affidavit (my discussion about this material is contained at paragraphs 165-171 of the Reasons).

2. During submissions on 17 April 2012, the father said “I’d ask you to listen in person to the totality of the audio tapes… Partially the relevance as I see it is credit, credit’s the minor thing. It’s more that I want you to see the historical video/audio between me and [the mother] so that you might be able to make the best judgment possible as to whether the mother’s contention that she would sever all links with her babies is credible and that she would not, the case, the reality is not more likely as I’ve submitted to you, that that’s a very remote thing that the mother’s going to do over the long term, there’s very remote risk…”

3. In grounds 5 and 6, the father now asserts that what is on the tapes is of critical relevance to the truthfulness of testimony (as opposed to “credit’s the minor thing”). As I have noted, the father did not cross examine any witness on conversations on the tapes (paragraph 167 of the Reasons). I am unable to conclude that the father’s complaints arising from conclusions reached from the audio and video tapes is indicative of appellable error.

Ground 7

1. This ground challenges my finding that the balance of the evidence suggests, inter alia, there are vulnerabilities in the father’s mental status and that these have impacted upon the mother.

2. I deal with the father’s mental health and personality at paragraphs 136-162 of the Reasons. Other parts of the reasons, for example, paragraph 309, are also relevant. The arguments developed in ground 7 seem to be based upon the assumption that vulnerabilities in the father’s mental status do not exist.

3. The father does not engage with the finding at paragraph 325 that the mother’s fears for the children’s physical safety, arising from the incident on 20 July 2012, were not only genuine but also reasonable.

Ground 8, part of ground 11, and paragraph 3 of the father’s affidavit filed on 7 November 2012

1. These grounds challenge my finding (particularly at paragraph 262) that the mother’s statements about not seeing the children if they live with their father are heartfelt and genuine. The father seems to argue that that finding was not open to the Court. In doing so, the father does not refer to the discussion at paragraphs 259-265 of the Reasons.

2. The father in oral submissions asserted that I had not referred in my judgment to comments made by Dr W relating to the genuineness of the mother’s assertion that she would no longer have contact with the children if they live with the father. That submission ignores paragraph 259 of my Reasons for Judgment.

Ground 9

1. The father asserts the first sentence of paragraph 399 of the Reasons is clearly wrong. That sentence is:

   The father seemed to accept that the scenario of [the] children having unsupervised access to their father (while living with [the] mother) was untenable.

2. In the father’s written submissions (exhibit 35) when discussing the scenario of the children having unsupervised access to their father (while living with their mother) the father submitted:

   The overwhelming evidence is consistent with this Scenario not being an available option.

Ground 10

1. The father firstly asserts that the Court incorrectly assessed the effect on the mother of the father’s continuing involvement in the children’s lives as a result of the Court relying upon the evidence of the mother’s treating psychiatrist. The father does not indicate why it was not open to the Court to rely upon that evidence.

2. Secondly, the father hypothesises about further avenues for litigation, including in his oral submissions mention of an application to the High Court, to challenge the notion that the orders made would eliminate the spectre of ongoing litigation (paragraph 401.3). The statement at paragraph 401.3 of the Reasons is to be read in light of the discussion at paragraphs 384 – 389 of the Reasons. The father also has an adjourned contravention application in respect of which he said he was “obviously using the contravention as a negotiating tool to hopefully get settlement.” There is a difference between the litigation involved in an appeal against final orders and pressing to have the mother dealt with for contravention of a previous interim order as a negotiating tactic, on the one hand, and the father’s continuing involvement with the children leading inevitably to further new applications by the father. The father has not demonstrated that the conclusion I came to about the likelihood of further litigation was not open to me.

Ground 11

1. The father challenges the finding that the children’s primary relationship is with their mother. Nothing which is set out under this ground would indicate why such a finding is not open to the Court. The balance of this ground repeats what is in ground 8.

Conclusion in respect of whether there are substantial grounds for appeal

1. In the hearing of the appeal, the Full Court will consider to what extent the father in his grounds for appeal has developed arguments which were not made during the hearing.

2. The father relies upon general statements made in particular authorities to assert that specific findings the Court made in this case are not sustainable. The particular findings were made in this case after having the advantage of observing both the parties over a considerable period of time. This is not a case where the father’s personality and presentation play no part in the mother’s fears. It is not accurate to assert, as the father does, that there was not any finding of unacceptable risk.

3. A trial judge is in a somewhat invidious position when commenting upon whether there are substantial grounds for appeal against reasons given. Having considered the father’s grounds however, so far as they have been developed to date, it is not clear to me that the father has yet identified any substantial ground of appeal.

4. As to whether or not the appeal is a delaying tactic by the father, given that he currently has no contact with the children, it is not relevant to speculate about that. Although the father indicated that he will apply for expedition, it does not appear that he intended to do that with any great speed. In fact in oral submissions he predicted that it was going to be a “minimum of 11 months” before the appeal would get heard, and suggested that “in the real world” it would take 18 months.

CAN THE APPEAL BE DEALT WITH WITHIN A REASONABLE TIME?

1. I was informed by the Independent Children's Lawyer and it seemed accepted by the parties that the likely listing of the father’s appeal will be in May 2013. The father expressed considerable hesitation about whether or not he would be ready to prosecute his appeal at that time and indicated that he was “not going to be putting in my appeal books until I’ve sat through 12 days of transcript hearing which is going to take quite some time. And I’m not going to put on my appeal books, which means I know I can then be pushed into an appeal when I’m not ready”. He further said that he would not adhere to a strict timetable “at risk of the quality of [his] appeal.” It is not therefore beyond reasonable prediction that the result of the father’s appeal may not be finalised until towards the end of 2013. That prediction may prove to be conservative.

ARE THE PRESENT CIRCUMSTANCES OF THE CHILDREN SATISFACTORY?

1. In the context of this stay application, this is not a significant matter. The children are currently residing with their mother and their maternal grandparents. In her affidavit sworn 21 November 2012, the mother says that “both boys are healthy. They have each had minor health issues which [she has] attended to.” She goes on to say that “both boys are very happy and settled.” The father would argue the lack of contact between the children and him is not satisfactory but I will deal with that argument when considering the children’s best interests.

DOES A REFUSAL OF A STAY RENDER A SUCCESSFUL APPEAL NUGATORY?

1. The Independent Children's Lawyer submitted that the bond between the children and the father is sufficiently strong enough to be able to be reactivated should the appeal be successful and either the Full Court re-exercise their discretion to provide contact between the father and the children or on remission for a re-hearing, a new trial judge did that.

2. The father conceded at one point that “the fact is, your Honour, if you don’t grant the stay orders you won’t render the appeal nugatory”. He continued on by saying “but there certainly is a risk that there’s that possibility.”

3. The father later submitted that his appeal would be rendered nugatory because the “[Full] court’s going to be concerned…  [the children] haven’t seen daddy for 18 months – the bonds have watered down.” The father submitted that “the kids haven’t seen me for so long and your decision today, in not granting a stay [I took the father to mean if I decided not to grant a stay], narrows the options available to your appeal judges.” He said that refusing the stay could mean that the Full Court “deny” him primary care of the children, and if not deny, refusing the stay “will certainly murky the waters in transferring primary care” to the father on appeal. Whether not granting a stay makes the father’s task of getting the orders he seeks more difficult is not the test. The question is whether or not refusing the stay will render an appeal nugatory and I am of the view that it would not. I accept the Independent Children's Lawyer’s submission that it would possible for the children to be re-introduced to their father should an appeal be successful.

IS THERE ANY HARDSHIP FOR EITHER PARENT AS COMPARED TO THE OTHER IN GRANTING OR NOT GRANTING A STAY?

1. During the father’s submissions he on occasions seemed to emphasise that his primary position was to return to a regime that allowed him to have supervised face to face time with the children in addition to skype time, but in the alternative, he simply sought skype time with the children. In regards to his alternate proposal, the father submitted that there was not any “real financial disincentive to the mother. There appears to be no emotional disincentive to the mother.”

2. The father’s primary position is to restore supervised time at Town I or Town C Contact Centre. I have no evidence that Town C Contact Centre would be willing to facilitate contact. As I noted at paragraph 326 of my Reasons for Judgment, the contact centre at Town I placed numerous conditions on any further facilitation. I have no evidence that those conditions have been satisfied. In the subsequent paragraph, I noted the submission from the lawyer for the mother that these conditions are lacking in detail and are problematic.

3. As set out in the passages from my Reasons for Judgment to which I have earlier referred, the mother’s primary position was for the father to have no time either face to face or electronically with the children; the mother’s prognosis is good as long as the proceedings are resolved in a way the mother believes is appropriate; and imposing the facilitation of time puts the mother’s mental health at risk. To grant a stay, and restore time would be a hardship to the mother.

4. If the stay is not granted, the father will suffer the same hardship he currently faces; that is, he will continue to be precluded from the children’s lives.

THE CHILDREN’S BEST INTERESTS

1. Even if the children’s best interests are not paramount, they are on the facts of this case a significant consideration.

2. The father’s application is unusual in that he seeks two sets of orders to be stayed; that is, he wishes to return to a regime that existed on an interim basis prior to 26 July 2012, not the regime that existed immediately prior to delivering my Reasons for Judgment on 19 September 2012.

3. Based upon my Reasons, the present circumstances of the children are in their best interests. It would not be a satisfactory circumstance to return the children and their mother to a regime that was ordered on an interim basis in October 2011 prior to the court having the opportunity to hear all the evidence (including the evidence about the father’s abduction of the children from the contact centre). The interim orders made on 26 July 2012, whilst made ex parte, were confirmed by the final orders after the father was afforded the opportunity to be heard about what happened on 20 July 2012.

4. The Independent Children’s Lawyer submitted that should the father’s appeal ultimately fail, it would be unsettling and upsetting for the children to spend time with him in the interim, only for that time to be then taken away again. She submitted that it was less detrimental to the children to continue to spend no time with their father, and to reintroduce contact with their father should the father’s appeal be successful. In those circumstances she submitted there “would be every chance that the children would be able to easily reengage with their father” given they had done so on another occasion where they had not seen their father for six months.

5. In relation to face to face time, I am not satisfied on the evidence that there is no risk of a repeat of what happened on 20 July 2012 (the father’s removal of the children from the contact centre) and I am not prepared to risk that, particularly having regard to the mother’s mental health. In paragraph 315 of my Reasons for Judgment dated 19 September 2012, I set out the effect on the mother of the father’s removal of the children from the contact centre.

6. As I have said in my Reasons, the mother’s mental health and ability to parent the children would be put at risk if she were made to facilitate a regular regime for the children to have time with the father and clearly to do that cannot be in the children’s best interests.

THE FATHER’S PRESENTATION DURING THE STAY HEARING

1. Whilst I place very little weight on these matters in the context of this stay application, I do not want to leave these reasons without making some comment about the father’s demeanour in court on the day the stay application was heard. In fact, the father in his submissions invited me to do so. His presentation fortifies findings I made in the Reasons about one side of the father’s personality and its effect upon the mother (see, for example, paragraphs 136, 164 and 383 of my Reasons). Whilst I could understand the father’s anger (which was palpable), and to some extent his rudeness, his overall presentation for his case for a stay was hostile, threatening and intimidatory. After the father asked me not to interrupt him, I endeavoured not to. That should not be taken as me conceding the things he asserted are accurate.

2. Not for the first time (see paragraph 253-254 of my Reasons), a lawyer representing the mother said he had been threatened in the court room by the father. In order to hear the stay application expeditiously in a busy list and in the absence of any relevant application, I was not prepared to take evidence about that alleged threat. The father’s version from the bar table was that he said to the lawyer for the mother “that I was concerned that he was about to mislead the court.  If he did mislead the court, I would burn him…” The father then said that what he meant was he would “point out how [the mother’s lawyer] would be misleading the court, and I will pursue that through all the appropriate channels.” The father made a threat directed to the mother’s lawyers that he would be taking them to the Supreme Court to sue them for defamation.

CONCLUSION IN RELATION TO THE STAY APPLICATION

1. Taking into account the matters referred to above and having particular regard to what I believe is in the best interests of the two children, I find that the father’s application for a stay of orders should be dismissed.

APPLICATION 12

1. In its form, this is an application to vary the final orders and on that basis it will be dismissed. If I treated this application as one to stay final orders, the result is the same. No submissions were made as to why I should do so. No ground of appeal has been filed in relation to this order. Failure to grant a stay would not render a proposed appeal (if any) nugatory. The condition which the father seeks deleted is, in part, aimed at lessening the mother’s apprehension and it would be a hardship on her to stay the condition and it is not in the children’s best interests to do so.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 January 2013.  

Associate:   

Date:  15.1.2013