RYCROFT & HAMLETT (No.2)

[2018] FCCA 2289

FEDERAL CIRCUIT COURT OF AUSTRALIA

RYCROFT & HAMLETT (No.2) [2018] FCCA 2289

Catchwords:
FAMILY LAW – Children – application for stay of orders pending appeal – where there was delay in filing notice of appeal – where stay of orders would necessitate another relocation of child – where child had already commenced schooling – where balance of convenience favoured mother’s relocation remaining undisturbed – application dismissed.

Cases cited:

De Lewinski v Direct General, New South Wales (1996) FLC 92-678

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681

K & B [2006] FamCA 848

Applicant: MR RYCROFT

Respondent: MS HAMLETT

File Number: BRC 5094 of 2011

Judgment of: Judge Egan

Hearing date: 18 July 2018

Date of Last Submission: 18 July 2018

Delivered at: Brisbane

Delivered on: 18 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Cullen

Solicitors for the Applicant: Integrated Family Law

Solicitors for the Respondent:	Genuine Legal
Counsel for the Independent Children's Lawyer:	Mr Bunning
Solicitors for the Independent Children's Lawyer:	SJP Law

IT IS ORDERED:

1. That the Application in a case filed on behalf of the father on 10 July 2018 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Rycroft & Hamlett (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5094 of 2011

MR RYCROFT

Applicant

And

MS HAMLETT

Respondent

REASONS FOR JUDGMENT

1. I have before me an application in a case filed on behalf of the father on 10 July 2018.  That application seeks a stay of all of the orders made by me when I handed down judgment on 8 June 2018 in respect of a hearing which had been conducted before me on 5 June and 6 June 2018. 

2. Relevantly, the application concerns a stay of the orders which I made which permitted the mother to relocate the residence of herself and the child [X] from Town A to Suburb 1, Suburb 1 being an inner city suburb in Brisbane. 

3. I handed down reasons on 8 June 2018 where I essentially found that it was in the best interests of the child to remain living with her mother in circumstances where the travel time between Suburb 1 and Town B, where the father lives, was substantially the same as the travel time from Town B to Town A where the mother and the child at the time of trial were living.

4. The reasons given by me also adverted to the child being a resilient child in the context of her being well able to manage a move from Town A to Suburb 1, any such move involving necessarily a change of schooling.

5. In a practical sense this application for stay was filed at a time when the application was, because of listing issues, unlikely ever to be heard before 16 July 2018, that date being the date of the commencement of the third term of school for children enrolled at the Suburb 1 State Primary School. 

6. It is the case that the child [X] commenced schooling at Suburb 1 State Primary School on 16 July 2018.  That scenario was well known to the father during the course of the whole of the hearing conducted on 5 and 6 June 2018, and was also well able to be appreciated by him upon the handing down of my judgment on 8 June 2018.  Indeed, the father had been present during the course of the whole of the proceedings and well knew that the mother had expressed the clear intention, should I find in her favour, to move from the Town A area to the Suburb 1 area, and to re-enrol the child at the Suburb 1 Primary School as and from 16 July 2018.

7. Notwithstanding that, a notice of appeal was not filed on his behalf until 5 July 2018, almost a month after the handing down of judgment.  I do not accept the submission that the availability of reasons on 26 June 2018 constituted a basis for a delay in filing an appeal, and contemporaneously therewith, an application for a stay.

8. The father ought to have well appreciated that it was in no way a desirable circumstance, on of the question of whether a stay ought to be granted or not, for such application to only be heard after the child had in fact changed her schooling and place of residence, and that is the very situation that I am faced with today. 

9. So I find that there has been in the circumstances of this case unacceptable delay in the making of the application for a stay.  Quite apart from the question of the timing of the application for a stay, I considered that in all respects it was in the best interests of the child that the child move with her mother to Suburb 1.  The reasons for my so finding are set out in the reasons for judgment.  In that regard, the father now seeks to stay orders which, by my reasons, were made based upon the proposition that the best interests of the child would be promoted by her change of residence and change of schooling to Suburb 1.  I refer to the decision of the Full Court of the Family Court in the case of K & B [2006] FamCA 848 where it was said:

   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 the order until the hearing of a stay application, may be relevant matters to be considered in the exercise of discretion in determining whether or not to grant the stay.  The interests of the child 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 words.

10. I consider that this current scenario falls within the ambit of the reasons of the Full Court last referred to.  Not only was it clear from my reasons handed down on 8 June 2018 that I considered that the best interests of the child would be best served by her moving with her mother to Suburb 1, but also that the then arrangements of the mother and child were unsatisfactory in the sense that the mother had valid reasons, in my view, for moving from Town A back to Suburb 1 with the child, a circumstance which I found would be of benefit to the child rather than staying in Town A. 

11. The father seeks a stay of orders which in effect would require me to compel the mother to again relocate from Suburb 1 back to Town A and again change the child’s school from Suburb 1 back to Town A.  The independent children's lawyer supports the application for a stay. 

12. When I asked Mr Bunning of counsel for the ICL whether any expert opinion had been obtained from anyone qualified to advance an opinion, or from Ms R (who was the family report writer who gave evidence at trial) concerning the issue of the effect of any further relocation from Suburb 1 State Primary School back to Town A, I was advised that there was no such evidence before the court.

13. It was submitted, rather, that reliance was placed upon paragraphs 22 and 75 of my reasons handed down on 8 June 2018.  As to those two paragraphs, I make the point that when I found that the child was a very resilient child, such finding was made in the context of evidence adduced at trial, both on the part of the mother and from Ms R, the report writer, namely the child’s resilience concerning one move from Town A back to Suburb 1. 

14. My comments about that in my reasons did not comprehend a possible resilience not only in respect of one move from Town A to Suburb 1, but also in relation to another move on top of that back from Suburb 1 to Town A as contemplated by the father, nor did those reasons take into account any resilience in the context of whether any psychological harm would occur to the child by reason of her being uprooted from her new school back to her former school at Town A. 

15. There is also evidence that the mother has entered into a lease arrangement in Suburb 1 in respect of new premises.  I was informed by her solicitor, and I have no reason to doubt the veracity of what I was so informed, that the mother was able to secure accommodation close to Suburb 1 as a result of her stepping into a “break lease” situation. 

16. That break lease situation is one where an existing tenant seeks to terminate their lease and a landlord is prepared to allow them to do so but only in circumstances where another person is able to be found who is not only suitable to take over the lease but who is also financially bound to meet the obligations under the lease, including payment of rent until the end of the term of the broken lease.  That is the situation in which the mother finds herself.  That factual scenario is not, it would seem, realistically disputed by any of the other parties. 

17. I am therefore of the opinion that this is not a situation where the status quo as at the date of the making of the orders by me on 8 June 2018 ought to be maintained.  I consider based upon the authority of the High Court in De Lewinski v Direct General, New South Wales (1996) FLC 92-678 and Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681 at 685, that the present circumstance is one where the balance of convenience clearly favours the mother. I therefore for those reasons dismiss the application in a case filed on behalf of the father.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 17 August 2018