Rod and Bloomberg (No. 2)

[2008] FamCA 575

FAMILY COURT OF AUSTRALIA

ROD & BLOOMBERG (NO. 2) [2008] FamCA 575

FAMILY LAW – ORDERS - Stay

APPLICANT: Mr Bloomberg

RESPONDENT: Ms Rod

INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley of Counsel

FILE NUMBER: ADC 4617 of 2007

DATE DELIVERED: 14 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 July 2008

REPRESENTATION

APPLICANT: Applicant appears on his own behalf

COUNSEL FOR THE RESPONDENT: Ms O'Keefe of Counsel

SOLICITOR FOR THE RESPONDENT: Polly Dixon & Co

COUNSEL & SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr Hemsley of Counsel

Orders

IT IS ORDERED THAT

1. The Father’s Application in a Case filed on 3 July 2008 for a stay of orders be granted pending the hearing of the Appeal in this matter.

   
   
   

IT IS REQUESTED THAT

1. The Appeal be expedited.

IT IS NOTED that publication of this judgment under the pseudonym Rod and Bloomberg is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ADC 4617 of 2007

MR BLOOMBERG

Applicant

And

MS ROD

Respondent

EX TEMPORAE REASONS FOR JUDGMENT

1. On 27 June 2008, I made orders and delivered reasons for judgment in respect of a decision reserved by me after the hearing of a four-day trial in Adelaide. The father has appealed. This is his application for a stay pending that appeal.

2. As was noted in those reasons, this matter has a very lengthy, very sorry history in respect of the two children who are the subject of these proceedings. 

3. In short, these parties have been litigating for the whole of the 11 years that the younger child has been alive.  As I said on more than one occasion during the course of the trial and as I have said again today, God help these children because these parents do not seem to be able to co-parent in any meaningful way without endless allegations and counter-allegations against each other.

4. The wife's affidavit filed in respect of this stay application only reinforces that position. 

5. During the course of what were very lengthy reasons, I canvassed a number of specific findings with respect to each of the parties.  Included among the findings were findings by me that the central allegations of abuse of various sorts made by the father against the mother were not made out and, in the case of an allegation, or an assertion, of sexually improper behaviour, could never have been made out on any evidence adduced by the mother during the course of the trial.

6. It is those allegations which formed the basis of the mother’s application to change parenting orders that were made by consent on 22 March 2006.  Those consent orders, in turn, occurred after two very lengthy hearings before the Family Court; in respect of parenting orders before Stephenson J and before Dawe J over five days in respect of alleged contraventions. 

7. Included also among the findings made by me were, speaking broadly, findings that in terms of the general credit of the parties, I preferred the evidence of the father over that of the mother.

8. The arrangement which had been in place for over two years by the date of the trial involved the children (aged about 14 and 11 at trial) living with their mother eight nights per fortnight and with their father for the balance.

9. I am cognisant of the principles applicable to Applications for Stay pending Appeal.

10. The prospects of the success of the Appeal are an important consideration. I bear that in mind.

11. The father continues to be self-represented, as he was at the trial. The grounds of Appeal leave, with respect, much to be desired in terms of their clarity in legal terms.

12. I have significant doubts about those prospects; in essence, the grounds (and arguments advanced by the father in the application) might be seen as nothing more than an assertion that the court ought to have arrived at a different result from that which it did.

13. However, the case was not without its complexities and the court’s ultimate decision did not accord with the submission of either party, nor was it in accordance with the recommendations of either expert, (Mr P or Dr B) although each, it should be noted, contended for the father, respectively, less time than was ordered, or no time.

14. If the father’s appeal succeeds, one of the possibilities is that the Full Court might re-exercise the discretion and, as it were, permit the existing situation with respect to the parenting of the children to continue.

15. As observed, that existing situation had (in respect of relatively mature children) had been in place for a period of approximately two years prior to the handing down of the decision.

16. Circumstances leading up to those consent orders are almost Byzantine in their complexity. Among those complex circumstances, are allegations and counter-allegations about the views of the children. Various findings were made about that, including, in particular, findings in respect of views expressed by the children (and the older child in particular) to Dr B, who had been the children’s treating psychiatrist for a period of two years.

17. A finding was made that there exists a real possibility that the children may express views to their mother when in her care, that are entirely different to the views expressed by them to the father when they are in his care.

18. The orders under Appeal involve a significant change of circumstances for the children. Conversely, the preservation of relatively long-standing parenting arrangements is directly relevant to the best interests of the children.

19. That consideration is, of itself, relevant to the exercise of the discretion to grant a Stay (although it is not the paramount consideration in the exercise of that discretion).

20. It is also relevant to whether the failure to order a Stay might render the father’s Appeal nugatory.

21. There is no evidence as to the likely delay in having an Appeal heard and determined in Adelaide. The legal practitioners appearing for the mother and the Independent Children's Lawyer were unable to estimate when a hearing was likely to take place. It seems to be common ground that Appeals were listed in Adelaide on a “as needs” basis. There might, then, be a significant delay in the hearing and determination of the father’s Appeal. And that too, is relevant.

22. The mother argues that she has already started to carry into effect the orders appealed from. In particular, she says that arrangements have been made with the school so as to facilitate those orders being carried out.

23. Clearly, multiple changes for children are a relevant consideration in the sense that, as a general rule, they ought be avoided in the children’s best interests.

24. That submission, and that consideration, might, it seems to me, have significantly more weight in a case that does not have the history of disruption, instability and, what seems at times, almost warfare between these two parents, which marks the tragic parenting history of these children.

25. As I said during the course of argument, that submission by the mother sits at somewhat ill with the previous unilateral decisions made by her, including in respect of the children’s name, place of residence and schooling, together with the facts forming the basis of previous contraventions made out against her.

26. In the circumstances of this case and for the reasons just given, I exercise my discretion in favour of granting a Stay of the orders made by me on 25 July 2008, pending an Appeal to the Full Court.

27. It will be obvious that these proceedings ought be finalised as quickly as possible, in the best interests of these two children, and I respectfully request that the hearing of the Appeal in this matter be expedited.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  28 July 2008