Sables and Newman (No.2)

[2017] FCCA 794

FEDERAL CIRCUIT COURT OF AUSTRALIA

SABLES & NEWMAN (No.2) [2017] FCCA 794

Catchwords:
FAMILY LAW – Stay application.

Legislation:

Family Law Act 1975

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) [1986] HCA 13

Applicant: MS SABLES

Respondent: MR NEWMAN

File Number: SYC 3874 of 2014

Judgment of: Judge Henderson

Hearing date: 11 April 2017

Date of Last Submission: 11 April 2017

Delivered at: Sydney

Delivered on: 11 April 2017

REPRESENTATION

Counsel for the Applicant: Ms Eldershaw

Solicitors for the Applicant: Neil Jamieson & Associates

Counsel for the Respondent: Mr Batey

Solicitors for the Respondent: Mills Oakley Lawyers

ORDERS

1. The matter is stood over to 23, 24 and 25 October 2017 at 10am for Final Hearing to be heard by a Judge other than Judge Henderson.

2. The mother’s stay application filed 28 March 2017 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3874 of 2014

MS SABLES

Applicant

And

MR NEWMAN

Respondent

REASONS FOR JUDGMENT

1. The matter of Sables and Newman. This is the second application before being the mother’s application that I stay operation of orders I delivered on 14 March 2017 providing that the parties’ son X continue to spend time with his father as he has done, but that his time be extended to include overnight commencing this weekend and each third weekend of the month thereafter and that after three months he will have overnight time two nights a month with his father.

2. The mother has filed an appeal against my decision and I accept she has done so diligently. The mother has prosecuted her appeal diligently. The mother has filed an affidavit in support of her stay application which I have read together with her application.

3. I have read the response and affidavit of the father to that application. He seeks both that I do not disqualify myself and that a stay not be granted. I have dealt with the disqualification issue in that and I have determined that the final hearing will be heard by another judge to avoid any further issue.

4. In relation to the stay application, it is well-settled law. Although this is a parenting matter, there is clearly a difference in the nuance of such matters with the general law. The well-settled law is for example set out in Aldridge & Keaton[1] a Family Court decision and in other jurisdictions in cases such as the Federal Commissioner of Taxation v Myer Emporium ltd (No.1)[2]. There are many other decisions in this Court in relation to stay applications.

   [1] Aldridge & Keaton [2009] FamCAFC 106.

   [2] Federal Commissioner of Taxation v Myer Emporium Ltd (No. 1) [1986] HCA 13.

5. The principles are as follows:

   1. The onus to establish a proper basis for the stay rests with the applicant, but the applicant does not have to demonstrate exceptional special circumstances

   2. The person who has obtained a judgment is entitled to the benefit of that judgment and assume it is correct

   3. The filing of an appeal is not granting the stay and that is why the mother has brought this application

   4. Assessing the bona fides of the applicant – that is the mother in bringing the appeal

   5. The balance of convenience and the competing rights of the parties – as this is a parenting matter it is X’s rights and his convenience as opposed to his mother and father’s that I am to consider

   6. Weighing of the risk that the appeal may be rendered nugatory if the stay is not granted – that is a substantial factor and is usually a highly relevant factor in stay applications

   7. Making a preliminary assessment of whether the appellant has an arguable case

   8. In a parenting matter the desirability of limiting frequency of change in child’s living arrangements

   9. Assessment of the period of time the appeal can be heard, and

   10. Consideration of whether the stay be granted on terms, and if so the best interests of the child are a significant consideration.

6. Now dealing with the easy points first.

7. The appellant has an arguable case. The appeal is not brought, as I see it from the evidence I have read including the case outlines of each counsel, mala fides and that will be an argument for another day. There is a bona fides to the appeal and the appellant has an arguable case.

8. The appellant has moved quickly and has an application before an appeal judge this Thursday for expedition of the appeal.

9. The mother says there are already satisfactory arrangements in place for X to spend time with his father, being the orders that have been in place for some time.

10. The two issues for me, or the most important aspects, or the ones that have weighed on my mind, is whether if I do not grant the stay the appeal the mother has brought will be rendered nugatory - and that is a substantial issue and important factor – with the father’s right to expect that the judgment I issued was correct coupled with the best interests of the child being a significant consideration.

11. If I do not grant the stay, it is correct an aspect of the mother’s appeal will be rendered nugatory – i.e. the order in relation to overnight time. The decision I made continued daytime and with that the mother agrees.

12. There is not an argument about daytime. As Mr Batey said the mother herself put forward at the initial interim hearing that the father could spend alternate Sundays with the child.

13. Thus the real issue and the real appellable issue that will be rendered nugatory is the decision I made that for three months starting this Saturday X should spend one night a month with his dad and then two nights a month with his father.

14. As I read my judgment, I was careful not to make any findings in relation to the significant and really quite heinous, at times, family violence that the mother alleges was perpetrated by the father against her and to the child himself.

15. What I did in my judgment as I see it was weigh up the two primary competing factors, which is X’s right to the benefit of a meaningful relationship with his father and the mother’s concern and allegations that this child was at substantial risk in his father’s care because of his father’s treatment of the mother during the relationship and the child himself.

16. In order for me to weigh up those risks and make an assessment of risk and whether X was at risk for overnight time with his father given he was spending unsupervised daytime time with his father – I went through, I hope, carefully the subpoenaed material that was tendered in relation to the parties’ relationship and various health professionals they had attended themselves, on their own and with the child including psychologist, GP’s, psychiatrists the like.

17. After reviewing that subpoenaed material with the mother’s allegations in my mind and having read Dr R’s report which was that provided – there is no risk of harm to X, he should be at this stage be spending two nights a fortnight with his father I made my decision.

18. That is the very issue – the risk of harm to X. I weighed up that risk and balanced any risk of harm, including whether it was unacceptable risk of harm to the child which is the mother’s case and X’s right to a relationship with his father.

19. There is no evidence of any physical harm to the child tendered, evidence of observation of injury or harm throughout their relationship, post their relationship and continuing in the subpoenaed material. I balanced in favour of X’s right to the benefit of a meaningful relationship with his father being a paramount issue for me with what I determined was a very low, if any, unacceptable risk or risk of harm to him in his father’s care.

20. I still have that view today and that this little boy is ready, willing and able to commence his important meaningful relationship with his father, and that this is in X’s best interests despite the position that the mother takes, which, when I went through the evidence, was not supported on the objective evidence. For those reasons, despite the fact the mother says her appeal will be rendered nugatory if I do not stay the orders, I have formed the view I ought not to grant the stay and the mother’s application is refused.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  20 April 2017