Samaras & Allen
[2021] FedCFamC1F 20
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Samaras & Allen [2021] FedCFamC1F 20
File number(s): SYC 5524 of 2017 Judgment of: HARPER J Date of judgment: 6 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – APPEAL – STAY – Application for a stay of interim parenting orders – Where notice of appeal and application for expedition has been filed – In circumstances where the primary judge was unavailable – Where application for a stay has been heard by a different judge – Where mother makes allegations of risk – Where Family Consultant considers risk to be a central issue – In circumstances where father has a criminal history – Where father has not been charged since 2012 – Where mother submits there would be a disruption of the child’s routine absent a stay – Where disruption would only occur if the appeal succeeds – Where mother argues her appeal would be rendered nugatory absent a stay – In circumstances where the parents have equal shared parental responsibility – Issue of substantial and significant time considered – Balance of convenience considered – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 65D(2), 65DAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191)
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635
Pointer & Cheadle [2020] FamCA 327
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 67 Date of hearing: 3 September 2021 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers Counsel for the Independent Children's Lawyer: Mr Maddox Solicitor for the Independent Children's Lawyer: John Spence & Associates ORDERS
SYC 5524 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALLEN
Applicant
AND: MR SAMARAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
6 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The mother’s Application in a Case filed on 1 September 2021 be dismissed.
2.All questions of costs be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Samaras & Allen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
These proceedings concern parenting arrangements for X (“the child”) born in 2016, between the applicant father in the substantive proceedings, Mr Samaras (“the father”), and the respondent mother in the substantive proceedings, Ms Allen (“the mother”).
This judgment concerns the mother’s application for a stay of interim parenting orders made by her Honour Justice Henderson on 26 August 2021 (“the August 2021 orders”). These orders were due to commence on the afternoon of Friday, 3 September 2021. The mother seeks a stay of these orders pending an appeal. The hearing was listed urgently at 2.15pm on Friday, 3 September 2021. On that occasion I reserved judgment, which I now deliver on an urgent basis.
BRIEF PROCEDURAL HISTORY
Some procedural history is necessary for this judgment.
The father commenced the substantive proceedings on 24 August 2017. Interim parenting orders were made by consent on 27 November 2019 (“the November 2019 orders”). These governed the parenting arrangements for the child until 12 March 2021.
Order 3 of the November 2019 orders was in following terms:
3) That pending further order, the child spend time with the father as follows:
a) Until 20 March 2020 in a two-week cycle as follows:
i) Week 1:
(1) Monday from 12.00 pm to 5.30 pm;
(2) Wednesday from 9 am to 5 pm;
(3) Friday from 3.30 to 7.30pm Friday.
ii) Week 2:
(1) Monday from 12.00 pm to 5.30pm;
(2) Wednesday from 9 am to 5 pm;
(3) Saturday from 9 am to 5 pm, save this time shall not occur on Saturday 1 and 29 February 2020 and 13 March 2020.
b) From 3.30 pm on Friday 24 January 2020 until 3.30 pm on Saturday 25 January 2020;
c) From 3.30 pm on Friday 21 February 2020 until 3.30pm on 22 February 2020;
d) From 3.30 pm on Friday 6 March 2020 until 10.00 am on 7 March 2020;
e) Commencing 20 March 2020 in a two-week cycle as follows:
i) Week 1:
(1) Monday from 12.00 pm to 5.30 pm;
(2) Wednesday from 9 am to 5 pm;
(3) Friday from 3.30 to 3.30pm Saturday.
ii) Week 2:
(1) Monday from 12.00 pm to 5.30pm;
(2) Wednesday from 9 am to 5 pm;
f) On the following special occasions:
i) From 3.00 pm on 25 December until 9.00am on 26 December;
ii) On Good Friday from 3.30 pm until7.30pm;
iii) From 9.00 am until 5.00 pm on Easter Sunday;
iv) On Father’s Day from 9.00 am until 5.00 pm;
Order (3)(e) makes clear that from 20 March 2020, the child was to spend time with the father every Monday and Wednesday during the day, and every second Friday overnight. This came in total to about 58 hours with the father every fortnight. The November 2019 orders were made when the child was three years old and not yet attending school.
The child commenced primary school in 2021. The father then made an interim application for fresh parenting orders.
On 12 March 2021, Senior Registrar Hayward made fresh interim parenting orders (“the March 2021 orders”). Those orders provided for equal shared parental responsibility for the child. Specifically, Order 6 provided for the child to live with the mother and spend time with the father as follows:
6.1 Until the commencement of Term 2 2021:
i. In Week 1, commencing 15 March 2021:
1. Wednesday from after school until 6.00 pm; and
2. From after school Friday until 5.00 pm Saturday.
ii. In Week 2, commencing 22 March 2021:
1. From after school Wednesday until return to school Thursday.
iii. Notwithstanding Order 6.1(i)(2) above:
1. The Father's time shall be suspended on the weekend of 19 March 2021 due to the Mother's wedding, and makeup time with the Father will occur at times agreed.
2. In the event of no agreement, then makeup time will occur from after school Friday, 26 March 2021 until 5.00 pm on Saturday, 27 March 2021.
6.2 Commencing from Term 2 2021:
i. In Week 1:
1. Wednesday from after school until 6.00 pm; and
2. From after school Friday until 5.00 pm Sunday.
ii. In Week 2:
1. From after school Wednesday until return to school Thursday.
6.3 Commencing from Term 3 2021:
i. In Week 1:
1. Wednesday from after school until 6.00 pm; and
2. From after school Friday until before school Monday or in the event that Monday is a public holiday or falls during the school holidays, then the time is extended until 5.00 pm on the Monday.
Orders were also made for time on special occasions, and for both parties to undergo supervised chain of custody urinalysis testing for the presence of drugs and carbohydrate deficiency transferring testing.
It can be seen that Order 6 provided for the child to spend gradually increasing overnight time with the father.
On 19 March 2021, the mother filed an Application in a Case seeking a review of Order 6. Senior Registrar Hayward granted a stay of Order 6 on 24 March 2021, and ordered the November 2019 orders remain in effect pending determination of the mother’s application for review. This application was heard by Justice Henderson on 5 August 2021, who delivered judgment on 26 August 2021. Her Honour varied the orders made by Senior Registrar Hayward in March 2021. Order 2 of her Honour’s orders made on 26 August 2021 is in the following terms:
2. The child spend time with the father during the school term as follows:
(a) From the date of these Orders until the commencement of Term 1 2022:
(i) Each alternate weekend from the cessation of school Friday until 5pm Sunday; and
(ii) Each Wednesday from the cessation of school until 7pm.
(b) From the commencement of Term 1 2022, commencing the first weekend after school resumes:
(i) Each alternate weekend from the cessation of school Friday until the commencement of school Monday; and
(ii) Each alternate Wednesday from the cessation of school to the commencement of school Thursday, being the Wednesday following the father’s alternate weekend as per Order 2(b)(i) herein.
It can be seen that the August 2021 orders provided that during term time for the balance of 2021, the child would have two nights of overnight time per fortnight with the father. This would increase to four nights per fortnight from the commencement of Term 1 of 2022.
In Order 3, her Honour also made specific provisions for the child to spend time with the father during the school holidays as follows:
3. The child spend time with the father during school holidays as follows:
(a) During the term school holidays in 2021 with the father’s time as per Order 2(a) herein to recommence the first weekend after school resumes:
(i) The first Friday after school ceases until 5pm Sunday; and
(ii) Each Wednesday from 9am to 6pm on Thursday.
(b) During the Christmas school holidays commencing in 2021:
(i) From 3pm Christmas Eve to 3pm Christmas day; and
(ii) Each alternate weekend from 9am Friday to 9am Tuesday commencing the second Friday of January 2022 unless otherwise agreed.
(c) During the term school holidays in 2022:
(i) From 5pm Friday to 5pm Tuesday in the first week of the school holidays; and
(ii) From 9am Friday to 5pm Sunday the weekend before school resumes.
(d) During the Christmas school holidays commencing in 2022:
(i) From 3pm Christmas Day to 5pm 29 December and each alternate year thereafter;
(ii) For a further period of four nights as agreed and, failing agreement, from the third Friday in January 2023 for a period of four nights on the first occasion with such time to extend to five nights each alternate year thereafter.
(e) Commencing 2023:
(i) In the holidays following Terms 1, 2 and 3 from the cessation of school at 5pm for five nights or as otherwise agreed;
(ii) From 3pm Christmas Eve to 3pm Christmas Day and each alternate year thereafter;
(iii) For two further periods of five nights in January 2024 as agreed and failing agreement in the first and third weeks of January and each alternate year thereafter.
Henderson J otherwise confirmed the orders of Senior Registrar Hayward.
On 1 September 2021, the mother caused her solicitors to lodge a Notice of Appeal (“the Notice”) against the August 2021 orders of Justice Henderson. By her Notice, the mother seeks the following orders:
2.1 That pending further Order, the child, X born … 2016 live with the Mother, and spend time with the Father as follows:
2.1.1 During the school term:
(a) each Wednesday from after school, or 3.00pm if not a school day, to 6.00pm; and
(b) each alternate Friday from after school, or 3.00pm if not a school day, to Saturday at 6.00pm;
2.1.2 During the school holidays:
(a) each Monday from 9.00am to 6.00pm;
(b) each Wednesday from 9.00am to 6.00pm; and
(c) each alternate Friday from 12.00pm to Saturday at 6.00pm.
2.1.3 The Father's time with the child pursuant to Order 2.1.2(b) shall be suspended on Wednesday 22 December 2021, with make-up time to occur on Thursday 30 December 2021 from 9.00am to 6.00pm.
The mother also seeks orders for special occasions such as birthdays, Christmas, and Easter, together with orders regarding changeover.
In the alternative, the mother seeks that the proceedings be remitted for rehearing.
I was told that on 3 September 2021, the mother filed an Application in an Appeal seeking expedition of her appeal. This remains to be determined.
The August 2021 orders were due to commence on Friday, 3 September 2021. Late on 1 September 2021, the mother filed an Application in a Case seeking a stay of the August 2021 orders pending determination of her appeal. The mother also sought an urgent listing of her Application in a Case. For those reasons, the Court accommodated the mother by listing the application at 2.15 pm on Friday, 3 September 2021.
By Order 3 of her Application in a Case, the mother, on the presumption that a stay is granted, proposes interim orders:
3. That, until further Order, the Father spend time with the child as follows:
3.1 Each Wednesday from after school (or 3.00pm if not a school day) until 6.00pm; and
3.2 Each alternative Friday from after school (or 3.00pm if not a school day) until Saturday at 6.00pm.
However, by her Case Outline the mother proposes different interim orders as follows:
3. That, until further Order, the Father spend time with the child as follows:
a. Each Monday from after school (or 12.00pm if not a school day) until 5.30pm;
b. Each Wednesday from after school (or 9.00am if not a school day) until 5.00pm;
c. Each alternate Friday from after school (or 3.30pm if not a school day) until Saturday at 3.30pm.
It can be seen that the mother contends that the child should spend overnight time with the father, but to a much lesser extent than provided for by the orders of Senior Registrar Hayward and Justice Henderson.
The mother made clear in her submissions that despite the orders proposed in her Case Outline, she sought a stay only of Orders 2 and 3 of the August 2021 orders.
EVIDENCE RELIED UPON
The mother provided a short Case Outline and relied on the following material:
(a)Application in a Case filed 1 September 2021 (“the Stay Application”), substituted by the Minute of Order set out in her outline of submissions;
(b)Affidavit of the Mother filed 1 September 2021;
(c)Family Report of Dr D dated 13 October 2020; and
(d)Reasons for Judgment dated 26 August 2021 (“Reasons”).
The father relied on his Response to an Application in a Case filed on 3 September 2021, and his Affidavit filed on 3 September 2021. The Independent Children’s Lawyer (“ICL”) did not rely on any material beyond that relied on by the other parties. All parties and the ICL made oral submissions.
DISCUSSION
The power to make an application for a stay pending an appeal is found in Rule 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), which came into effect on 1 September 2021. The power to grant such a stay is well recognised in this Court. Rule 13.12(3) requires the application to be made to the judge whose orders are the subject of appeal, unless they are unavailable. Henderson J was unavailable, so it falls to me to determine the mother's urgent application.
The principles governing a stay pending appeal are well settled. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge”), the Full Court noted at [17] that an appeal from parenting orders is subject to well established principles on the limits on interference by an appellate court with a discretionary judgment: House v The King (1936) 55 CLR 499. A different view by an appellate court, only on matters of weight, by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519).
The Full Court in Aldridge (supra) set out the following relevant principles relating to an application for a stay of parenting orders:
(a)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;
(b)A person who has obtained a judgment is entitled to the benefit of that judgment;
(c)A person who has obtained a judgment is entitled to presume the judgment is correct;
(d)The mere filing of an appeal is insufficient to grant a stay;
(e)The bona fides of the applicant;
(f)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;
(g)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;
(h)Some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
(i)The desirability of limiting the frequency of any change in a child's living arrangements;
(j)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
(k)The best interests of the child the subject of the proceedings are a significant consideration.
Litigation in parenting matters has a special character. Austin J observed in Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251; at [134]:
It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child's best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child's best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the court's discretionary judgment about how the child's interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).
For this reason, and in connection with the grant of a stay pending appeal, McClelland DCJ pointed out in Pointer & Cheadle [2020] FamCA 327 at [14] that:
Consideration of the first four of the criteria adumbrated in Aldridge (supra) is in the context where the focus of the Court in making parenting orders is on the best interests of the child. In that context, as stated by the High Court in M v M (1988) 166 CLR 69 ("M v M") at 75 to 77, "[p]roceedings for custody or access are not disputes inter partes in the ordinary sense of that expression". Accordingly, it may be inappropriate to characterise the outcome of parenting proceedings as a victory for one or other of the parties.
Nonetheless, it can reasonably be said in this case that the orders which are the subject of appeal favour the father, in the sense that they provide for more of the child's time with him than the mother can accept. Thus, in terms of factors (a) to (d) in Aldridge (supra), the father is entitled to presume that the judgment of Henderson J is correct. The mother establishes no entitlement to a stay of the orders by the mere filing of an appeal. Although she need not demonstrate any "special" or "exceptional" circumstances, she bears the onus of establishing a proper basis for the stay.
I accept that the mother has filed her appeal bona fide. The mother has also given evidence that on 3 September 2021, she filed an Application in a Case seeking expedition of the appeal.
On the balance of convenience, there are arguments in favour of both parties. The father gave evidence that the child was excited to spend time with him, particularly over the weekend just gone, which included Father’s Day. Meanwhile, the mother expressed concerns about the risk of harm in the father's care. She accepts, nonetheless, that the child should have overnight time with the father. There would be an impact on both parties, adverse to the father if the stay is granted, and adverse to the mother if the stay is refused.
Beyond the impact on the parents, there is the impact on the child. In this regard, it seems to me that in assessing the balance of convenience in the context of a stay application, there are several aspects to take into account. This includes the special character of parenting proceedings as referred to earlier, and the question of the best interests of the child, in particular the benefit of a meaningful relationship with both parents, although these latter two considerations will also be discussed separately below.
A stay would have an adverse impact on the maintenance and development of the child's relationship with the father. If a stay is granted, the orders which have been in place since 27 November 2019 would prima facie continue to govern the time to be spent with the father. This is suggested by the orders of Senior Registrar Hayward of 24 March 2021. The mother argued that the interim orders sought by her in her Case Outline are consistent with the November 2019 orders. That much may be true.
However, the mother placed considerable emphasis on the destabilisation which may occur if the child’s current time with the father now changes in accordance with the August 2021 orders, but is later reverted to the November 2019 orders on appeal. I do not accept this, for two reasons.
First, as I comment further below, this possible impact on the child only arises if the appeal succeeds, and it is commonplace for children to experience changes in routine. Secondly, as noted already, the November 2019 orders were made before the child began attending school. It is clearly not possible for those orders to effectively govern time with the father now the child is at school. For example, the child can hardly spend time with the father between either 12 noon or 9.00 am and the end of school each Monday and Wednesday respectively. In truth, it appears the father is spending severely truncated time with the child to the extent allowed by some residual operation of the November 2019 orders. This weighs in the balance of convenience.
The balance of convenience is also to be assessed by the likely length of time between the grant or refusal of a stay, and the determination of the appeal. Unfortunately, beyond noting that the mother has sought expedition, I have no further information about this. The application for expedition will be considered in the wider context of the appeals and applications awaiting determination. I could not form the view that expedition is either likely or not.
The mother also submitted that her appeal would be rendered nugatory if I were to refuse a stay. I am not persuaded that this is the case. The High Court has several times indicated that the enjoyment of a right is rendered “nugatory” if it is rendered worthless or seriously undermined: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450, referring to Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 at 647-648, 659.
The orders appealed from are interim parenting orders. From the mother’s point of view, the subject matter of the appeal is, in truth, her right to propound a suite of interim orders which she contends meets the child's best interest, and to seek to overturn orders which she contends do not. Understood in that way, if no stay is granted, the mother’s appeal against those orders is not rendered worthless or even undermined.
Interim parenting orders, indeed any parenting orders, may be varied, subject to the application of the principles in Rice & Asplund (1979) FLC 90-725 if circumstances change (s 65D(2) of the Family Law Act 1975 (Cth) (“the Act”)). An application to vary interim parenting orders is a course open to any party, and may happen by an appeal or by further application to the Court at first instance. The outcome of the mother’s appeal will not finally determine the parenting arrangements for the child in these proceedings. More importantly, there is no step which would be taken in these proceedings under the August 2021 orders, which was difficult to retrieve, such as relocation interstate or overseas if a stay is refused. As already pointed out, the mother accepts the child should have overnight time with the father, but less than what has been ordered by Henderson J. The mother can still make her case for alleged error and seek to persuade the Full Court to re-exercise discretion for the orders she wants, or remit the proceedings for a rehearing.
This raises the next point – the need to make some preliminary assessment of the strength of the proposed appeal. The parties did not make particular submissions on this question. It is always difficult for the primary judge appealed from to make an assessment of the merits of the appeal. It is even more difficult for another first instance judge to make the assessment on an urgent application without the benefit of any prior involvement.
That said, I should make some preliminary assessment of the merits of the appeal. The mother’s Notice of Appeal alleges that the primary judge:
(a)Made "implicit" findings of fact, but failed to give reasons for those findings;
(b)Failed to assess or identify risk;
(c)Failed to analyse and "grapple with" the opinion of a single expert about risk to the child in the father's care;
(d)Failed to conduct a risk assessment; and
(e)Failed to take account of, and give appropriate weight to the single expert's criticism of the father, as well as the mother’s extensive submissions about dishonesty on the part of the father.
I note that challenges on appeal as to the weight in discretionary interim judgments are generally difficult to sustain: Gronow at 519-520. The question of whether or not reasons for a judgment are adequate depends upon the circumstances of the case, and will be inadequate if the appellate Court is unable to discern the foundation for the ultimate decision, or if it appears that justice has not been seen to be done: Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191).
Having considered the Reasons, the Notice of Appeal and the submissions of the mother, I am unable to express a view about the merits or strength of the appeal beyond saying that the Reasons do not self-evidently manifest any of the errors alleged in the Notice of Appeal. However, for the purpose of this stay application, I accept the appeal is arguable.
Points (i) and (k) of the principles set out in Aldridge (supra) can be dealt with together under the rubric of the child's best interests. These points are the desirability of limiting the frequency of any change in a child’s living arrangements, and the best interests of the child.
I take account of the fact that the orders of Henderson J, unless disturbed on appeal, are by definition in the best interests of the child.
At [12] – [14] in her affidavit filed on 1 September 2021, the mother identifies two areas of concern which, she submits, support her application for a stay, in accordance with the child's best interests.
First concern – risk
As already noted, the mother refers to affidavit evidence concerning the father's criminal history and drug use. As to drug use, I note that Senior Registrar Hayward made orders for both parents to undertake regular testing for drug use. This order is not the subject of appeal.
The mother also argued that risk was a central issue identified by Dr D. I was referred to [13] – [60] of the Reasons, which set out a detailed chronology of events. This shows that the father was convicted of criminal offences in 2009 and subject to bail conditions including drug testing between August 2009 and November 2011 (Reasons, [16] – [17], [19]). He was also committed for sentence to the New South Wales District Court for criminal offences in 2010 (Reasons, [17]). On 12 February 2012, he was charged with the supply of illegal drugs, but this charge was dismissed at committal (Reasons, [21]).
However, after 2012, as the ICL submitted, there is little cogent evidence of the father's involvement in criminal activity, although he remained a person of interest to police (Reasons, [33], [35], [40]). It is important to note that the child was not born until 2016.
Dr D opined at [142] of her report that “A central issue in this case is the extent to which the father's very serious criminal history may have any effect on X, in terms of role modelling of appropriate behaviour, exposure to risk and/or other forms of danger”. At [155], Dr D said:
My review of the matter indicates that the father's criminal history is relevant and of significant concern with respect to the issue of the safety of a very young child. The police records from both the New South Wales and Federal Police indicate that the father is being closely monitored as he is known to be associated with organised crime and with people with known criminal links. Mr Samaras is subject to a Firearm Prohibition order. I understand that such an order allows the police to enter the father's premises without a warrant to conduct any searches they consider relevant. The police documents indicate that the father is frequently stopped and searched by police when driving. Whilst being stopped by the police is not in and of itself a risk factor to X, I would be concerned that the Firearms Prohibition order may expose X to police involvement and situations that are likely to be anxiety provoking and frightening for a young child.
While accepting that the mother and Dr D consider risk to be a central issue, I am unable, in a stay application, to form any clear view about risk, other than to take account of their opinions. I also take account of the fact that the question of risk to the child has been examined by two judicial officers of the Court between March and August this year in the context of interim parenting hearings. The limitations upon the Court’s ability to make factual findings at truncated interim hearings is well known. However, the Court’s capacity to assess risk at an interim hearing is greater than at an urgent application for a stay pending appeal. It is clear from Dr D's report that the father disputes the allegations of risk in his care. For the present application, the mother points to the same material considered by Henderson J, and Senior Registrar Hayward. For the purpose of a stay, the mother invites me to form a different factual conclusion about risk to that arrived at by both judicial officers. While I accept it is open to the Court to take such a course on an application for a stay pending appeal, nothing in the evidence or submissions persuades me I should do so in this case.
I also accept, as the father submitted, that the mother's concerns about risk as presently formulated, are hard to reconcile with the orders made by consent on 27 November 2019. As noted, these orders provided for the father to spend a total of 58 hours per week with the child when she was 3 years' old, including day time every Monday and effectively the whole of Wednesday (from 9.00am – 5.00pm). The mother continues to propose overnight time, but in practical terms is suggesting interim orders which reduce the amount of time the child spends with the father (as shown by her proposed orders in her Application in a Case). There is also a reduction of time as compared to the November 2019 orders, which appear to be her fall-back position (according to her Case Outline). This is due to the child having commenced school, and the November 2019 orders can no longer be truly effective.
Second concern – disruption of the child’s routine
The mother submits that, absent a stay, the child will suffer a change to the arrangement which has persisted since November 2019, as well as a possible further disruption of a return to that arrangement should the appeal succeed.
However, the said disruption only arises if the appeal succeeds. If no stay is granted and the appeal fails, the child will have spent time with the father between now and the determination of the appeal in accordance with the August 2021 orders. She may well have adjusted to those orders. If a stay is ordered, and the appeal fails, there will be change to the child's parenting arrangement anyway, and depending on when the appeal is heard, a further complication will then arise in determining when and how the August 2021 orders should commence.
A further problem lies in the small amount of time the mother proposes for the child to spend with the father, pending her appeal. Dr D’s report records a warm and loving relationship between the child and the father, despite her concerns about risk. I refer to my reasons at [32] to [34] above. It is clear the November 2019 orders have not been capable of true fulfilment now the child is at school. The grant of a stay would thus result in the child spending even less time with the father than the 58 hours each fortnight provided for in the November 2019 orders. I take account of the mother’s submission that the child already has a warm and loving relationship with the father, which has come into being under the existing time arrangements. But taking account of the primary consideration set forth in s 60CC(2)(a) the Act, I am unable to conclude that the grant of a stay as sought by the mother would support the prospective benefit of a meaningful relationship between the child and her father. For this reason, it would not be in the child’s best interests.
Furthermore, the mother does not seek a stay of the order for equal shared parental responsibility made by Senior Registrar Hayward. An order for equal shared parental responsibility requires the Court to consider substantial and significant time if equal time is not ordered (s 65DAA of the Act).
The August 2021 orders provide for substantial and significant time. I am not satisfied that the interim orders proposed by the mother in her Application in a Case filed on 1 September 2021 accords substantial and significant time between the child and the father. More importantly perhaps, as already noted above, the mother contended that the November 2019 orders can simply govern the position pending appeal if a stay is granted and no other orders are made. But those orders have become close to unworkable. It is not clear the residual operation of those orders could satisfy the definition of substantial and significant times in s 65DAA(3) of the Act.
CONCLUSION
I have given consideration to the mother’s concerns in this matter, namely her arguments that the child would be placed at risk and there would be a disruption to the child’s routine, should I refuse her application for a stay of the August 2021 orders.
The mother raised the possibility of risk to the child due to the father’s criminal history, including his conviction for firearms offences and subsequent charges for supplying drugs. However, I accept the submission of the ICL that there remains limited cogent evidence of the father’s involvement in criminal activity past 2012, although he remains a person of interest to the police.
I am unable, in delivering judgment on a stay application, to form any view of risk other than to consider the opinions presented to me. I do, however, note that the November 2019 consent orders provided for the child to spend 58 hours per week with the father. The mother contends these orders can continue to govern the father’s time with the child, but in my view this is not correct.
I am not satisfied that there would be a detrimental change to the child’s routine if a stay is refused and the appeal succeeds. The disruption of this routine will only occur should the appeal succeed. If a stay is ordered, and the appeal fails, the child would suffer a change in parenting arrangements anyway.
Finally, I do not accept that if a stay is granted or even if the mother’s proposed interim orders were made pending appeal, the child would be afforded substantial and significant time with the father.
I am satisfied the grant of a stay is not in the child’s best interests.
Accordingly, I dismiss the mother's Application in a Case filed 1 September 2021.
The father by his Response to the Application in a Case seeks costs. I have received no submissions on costs. I will reserve costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 6 September 2021
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