SCARLETT & BRADSHAW

Case •

[2019] FamCA 301

•

13 May 2019

FAMILY COURT OF AUSTRALIA

SCARLETT & BRADSHAW [2019] FamCA 301
FAMILY LAW – PRACTICE AND PROCEDURE – Stay Application – Where the wife seeks a stay of substantive parenting orders pending the outcome of the appeal – Where there are concerns about the husband’s anger management issues – Where the effect of the stay is to postpone the husband’s un-supervised time with the child – Where granting the stay would not preclude the husband from spending supervised time with the child – Where the appeal would be rendered nugatory if the stay was not granted – Where the wife’s application was not merely a delaying tactic – Application granted.
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013
APPLICANT: Ms Scarlett
RESPONDENT: Mr Bradshaw
FILE NUMBER: SYC 4319 of 2014
ORDERS MADE: 7 March 2019
DATE DELIVERED: 13 May 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Johnston J
HEARING DATE: 7 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clifford
SOLICITOR FOR THE APPLICANT: Barkus Doolan
COUNSEL FOR THE RESPONDENT: Mr Harper
SOLICITOR FOR THE RESPONDENT: Manning Lawyers

Orders made 7 March 2019

  1. That orders be made in accordance with the document headed Form of Order filed in Court today, signed by me and placed with the Court papers as set out hereunder:

    1.Definitions:

    1.1    Orders means the Orders made by Justice Johnston on 22 November 2018;

    1.2    Father means Mr Bradshaw born in 1973;

    1.3    Nanny means such nanny employed by the mother from time to time;

    The Court Orders that :

    1)That orders 5.1 be stayed to the extent that it permits unsupervised time to occur in respect to the time the father spends with the child X born … 2013 and for the sake of absolute clarity the child spend time with the father supervised by the nanny in accordance with order 5.1 of the Orders made 22 November 2018.

    2)That Order 6, 7, 8, 9, 18, 19 and 21 of the orders be stayed pending the determination of the Notice of Appeal

    3)That the applicant’s costs of and incidental to the application be reserved.

  2. Judgment is reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scarlett & Bradshaw has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4319 of 2014

Ms Scarlett

Applicant

And

Mr Bradshaw

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 7 March 2019 I heard an application by Ms Scarlett (“the wife”) for an order to stay certain substantive parenting orders made by me on 22 November 2018.  Mr Bradshaw (“the husband”) opposed the stay application and sought that it be dismissed.

  2. I considered there to be some urgent need for the stay application to be determined.  I granted the application and made orders for the stay on that occasion.  I reserved reasons for judgment.  These are the reasons for judgment.

Background

  1. On 22 November 2018 I made substantive parenting orders in relation to the parties’ daughter, X born in 2013.  The orders are as follows:

    PARENTING

    (1)The following parenting orders are made in relation to the child, [X] born … 2013 (“the child”).

    (2)All previous parenting orders are discharged.

    Parental Responsibility

    (3)The husband and the wife shall have equal shared parental responsibility for the child.

    Live With

    (4)The child shall live with the wife.

    Time Spent (supervised)

    (5)The child shall spend time with the husband as follows:

    (5.1)from the date of these orders until the expiration of three weeks and subsequently until such time as the husband completes an anger management course such as [LL Group’s] 12 week course or a similar course (“the anger management course”) as follows:

    (5.1.1)from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday each week;

    (5.1.2)from 10.00 am to 4.00 pm on each alternate Sunday;

    (5.1.3)the child’s time with the husband be supervised at all times by the nanny, with the costs of the nanny to be paid by the wife;

    (5.1.4)on the child’s birthday, if a school day from 3.00 pm to 5.30 pm and if on a non-school day then from 1.00 pm until 5.30 pm;

    (5.1.5)on Christmas Day in 2018 from 2.00 pm to 5.30 pm and if the husband has completed the anger management course and provided to the wife the certificate of completion this time shall be unsupervised; and

    (5.1.6)on Father’s Day from 10.00 am until 4.00 pm.

    Time Spent (unsupervised)

    (6)Subject to Order 5.1 above, upon the husband completing the anger management course and providing to the wife the certificate of completion, the child shall spend unsupervised time with the husband as agreed and failing agreement as follows:

    (6.1)until the conclusion of Term 2 in 2019:

    (a)from after school (or 3.00 pm if not a school day) until 5.30 pm each Tuesday; and

    (b)from 8.00 am to 5.00 pm each Sunday.

    (6.2)commencing from the conclusion of Term 2 in 2019 on a two week rotation as follows:

    (6.2.1)in Week One:

    (a)     from after school (or 3.00 pm if not a school day) until 5.30 pm on Thursday; and

    (b)    from 4.00pm on Saturday until 10.00 am on Sunday.

    (6.2.2)in Week Two:

    (a)     from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday.

    (6.3)commencing from the conclusion of Term 3 in 2019 on a two week rotation as follows:

    (6.3.1)in Week One:

    (a)     from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday; and

    (b)    from after school (or 3.00 pm if not a school day) on Friday until 10.00 am on Sunday.

    (6.3.2)in Week Two:

    (a)     from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday.

    (6.4)commencing from the conclusion of Term 1 in 2020 on a two week rotation as follows:

    (6.4.1)in Week One:

    (a)     from after school (or 3.00 pm if not a school day) on Thursday until 10.00 am Sunday.

    (6.4.2)in Week Two:

    (a)     from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday.

    (6.5)commencing from the conclusion of Term 2 in 2020 on a two week rotation as follows:

    (6.5.1)in Week One:

    (a)     from after school (or 3.00 pm if not a school day) on Thursday until before school (or 9.00 am if not a school day) on Monday.

    (6.5.2)in Week Two:

    (a)     From after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday.

    (6.6)commencing from the conclusion of Term 3 in 2020 on a two week rotation as follows:

    (6.6.1)in Week One:

    (a)     from after school (or 3.00 pm if not a school day) on Thursday until before school (or 9.00 am if not a school day) on Monday.

    (6.6.2)in Week Two:

    (a)     from after school (or 3.00 pm if not a school day) on Wednesday until before school (or 9.00 am if not a school day) on Thursday.

    School Holidays

    (7)The child’s time with the husband as specified in order 5 and order 6 above insofar as it does not relate to special occasions shall be suspended during school holiday time except during the January 2019 and January 2020 holidays when it shall be suspended only for the first two weeks thereof.

    (8)The child shall spend time with the husband during school holiday time as follows:

    (8.1)in 2020 during each of the Term 1, Term 2 and Term 3 holiday periods from 9.00 am on the fourth last day of each holiday period until 9.00 am on the last day of each such period.

    (8.2)in 2021:

    (a)for one week during each of the January 2021, Term 1, Term 2 and Term 3 holiday periods to be agreed between the parents and in the absence of agreement, the last week with changeover occurring at 9.00 am on Saturday;

    (b)for three single week periods during the December 2021/January 2022 holiday period, such weeks to be agreed between the parents and in the absence of agreement the first, fifth and seventh weeks with changeover occurring at 9.00 am on Saturday.

    (8.3)from the 2022 Term 1 holidays onwards:

    (a)during school holiday time as agreed between the parents and in the absence of agreement, for half of each school holiday period with the child to spend time with the husband for the first half of the school holiday period in even numbered years and the second half of the school holiday period in odd numbered years;

    (b)school holiday time shall commence from the conclusion of school on the last day of school term for the school that the child attends.  This shall be known as “the first day”;

    (c)school holiday time shall conclude at 5.30 pm on the day prior to the first school day that the child attends school in each new school term.  This shall be known as “the last school day”; and

    (d)unless otherwise agreed between the parents, changeover half way through the school holiday time shall occur at 2.00 pm on the day in the middle of the first day and the last day, and in the event there are two middle days, then changeover shall occur at 12.00 pm on the first of the two middle days.

    Birthdays and Special Occasions

    (9)The child shall spend time with the husband:

    (9.1)from 9.00 am until 5.00 pm on Father’s Day in each year;

    (9.2)from 9.00 am until 5.00 pm on the husband’s birthday in each year if a non-school day and from 3.00 pm to 5.30 pm if a school day;

    (9.3)if not otherwise spending time with the husband on the child’s birthday then in the event that the child’s birthday falls on a school day, from 3.00 pm until 5.30 pm and if it is on a non-school day then from 1.00 pm until 5.30 pm;

    (9.4)from 5.30 pm Christmas Eve until 5.30 pm on Christmas Day each odd numbered year;

    (9.5)from 5.30 pm Christmas Day until 5.30 pm Boxing Day in each even numbered year commencing in 2020; and

    (9.6)from 3.00pm Easter Thursday until 5.00 pm Easter Monday each even numbered year.

    (10)That commencing from the date of the making of these orders and notwithstanding anything else contained in these orders, the child shall live with the wife as follows:

    (10.1)from 9.00 am until 5.00 pm on Mother’s Day each year;

    (10.2)from 9.00 am until 5.00 pm on the wife’s birthday in each year if a non-school day and from 3.00 pm to 5.30 pm if a school day;

    (10.3)if not otherwise spending time with the wife on the child’s birthday then in the event that the child’s birthday falls on a school day, from 3.00 pm until 5.30 pm and if it is on a non-school day then from 1.00 pm until 5.30 pm;

    (10.4)from 5.30 pm on Christmas Eve until 5.30 pm on Christmas Day each even numbered year;

    (10.5)from 5.30 pm Christmas Day until 5.30 pm Boxing Day in each odd numbered year; and

    (10.6)from 3.00pm Easter Thursday until 5.00pm Easter Monday each odd numbered year.

    Communication

    (11)Each parent shall do all things necessary to facilitate the child making telephone calls and receiving telephone calls from the other parent:

    (11.1)on Christmas Day between 8.00 am and 10.00 am;

    (11.2)on two occasions in each week; and

    (11.3)at other times as requested by the child.

    Changeover

    (12)Unless otherwise agreed and unless changeover occurs at the child’s school, the husband, or his nominee, is to collect the child at the commencement of his time, in accordance with these orders, from the wife’s residence and the wife, or her nominee, is to collect the child from the husband’s residence at the conclusion of his time with the child.

    Contact Details

    (13)Each parent shall keep the other informed of their contact telephone numbers and residential address and provide the other with at least 28 days’ notice in writing of any proposed change of address.

    School and Health

    (14)Each parent shall be entitled to obtain directly from any school attended by the child or any health or welfare professional or other professional (excluding any confidential counselling) attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose, each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

    (15)Each parent shall do all things necessary to authorise any school the child attends to provide the other parent on a regular basis with copies of all school reports, school newsletters, and any other information regarding the child’s school activities.

    (16)Each parent shall be at liberty to attend school events where parents are invited to attend.

    (17)Each parent shall immediately notify the other of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child, when the child is in their care.  Together with any such notice the parent shall provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment.

    Unavailability of the Wife

    (18)From the conclusion of Term 1 in 2021 and subject to the completion of the anger management course as specified in order 5.1, in the event that the wife is unable to care for the child for a period of at least twenty-four hours the husband is to be given first opportunity to care for the child during the time the wife is unable to do so and the wife shall notify the husband by text message or email as soon as she becomes aware of her unavailability to care for the child.

    Travel

    (19)From January 2021 each of the parents shall be at liberty to take the child for holidays overseas during their part of each school holiday period on the following terms:

    (19.1)they give the other parent at least four weeks’ written notice of the intended overseas travel and not less than seven days prior to the departure a detailed itinerary and contact details for the child whilst away; and

    (19.2)during any overseas holiday, the travelling parent will ensure the child telephones the other parent on not less than each sixth day.

    (20)Both parents shall do all things to cause the child’s passport to be renewed as required to ensure the passport has at all times not less than nine months validity, and each of the parents pay the costs of any such renewal equally.

    (21)The wife shall hold the child’s passport at all times except when the child is travelling with the husband overseas in accordance with these orders, in which case the wife shall provide the child’s passport to the husband not later than seven days prior to the date of departure and the husband shall return the child’s passport to the wife within four days of the child’s return to Australia.

    (22)Until January 2021 the wife will be at liberty to take the child for holidays overseas or within Australia for up to three consecutive weeks and the husband’s time with the child shall be suspended during those periods on the following terms:

    (22.1)the wife shall give the husband not less than 28 days written notice of the intended travel and not less than seven days prior to the departure a detailed itinerary and contact details for the child whilst away;

    (22.2)during any such holiday, the wife shall ensure the child communicates with the husband by telephone (or other electronic communication) on not less than each sixth day; and

    (22.3)the wife shall only exercise this opportunity on three occasions in each calendar year.

    (23)The wife shall ensure that all loss of time which would otherwise have been spent between the child and the husband pursuant to these orders is made up by the child spending make-up time with the husband within 10 weeks of her return home.

    …

  2. On 18 December 2018 the wife filed an appeal against Orders 5, 6, 8, 9, 18 and part of 22.

  3. The wife’s Notice of Appeal indicates that if she was to succeed in her appeal she would seek the following orders:

    1.That commencing from the date of the making of these Orders until 12 months from the date of the making of these Orders and until the father completes the [LL Group] Anger Management 12 week course (“the [LL Group] Anger Management Course”), whichever is the latter, the child spend time with the father on a 2-week rotation as follows:

    1.1from after school ( or 3.00pm if not a school day) until 5.30pm on Tuesday and Thursday in each week;

    1.2from 10:00am until 4:00pm on Sunday in each alternate week;

    1.3On the child’s birthday from 3:00pm until 5:30pm;

    1.4On Father’s Day from 10.00am until 4.00pm;

    1.5On Christmas Day from 9.00am until 12.30pm;

    1.6The time in 1.1 to 1.5 above to be supervised by a nanny or supervisor engaged by the wife and at her cost.

    2.That commencing from the date 12 months and 1 day from the date of the making of these Orders until the date 24 months from the date of the making of these Orders conditional upon the husband completing the [LL Group] Anger Management Course, the child spend time with the father as follows:

    2.1from after school ( or 3.00pm if not a school day) until 5.30pm on Tuesday and Thursday in each week;

    2.2from 10:00am until 4:00pm on Sunday in each alternate week;

    2.3On the child’s birthday from 3:00pm until 5:30pm;

    2.4On Father’s Day from 10.00am until 4.00pm;

    2.5On Christmas Day from 2.00pm until 5.30pm;

    2.6The time in 2.1 to 2.5 to be unsupervised.

    3.Commencing from 24 months and 1 day from the date of the making of these Orders and the date of the husband completing the [LL Group] Anger Management Course, whichever is the latter, the child spend time with the father as follows:

    3.1from the conclusion of school (or 3.00pm if not a school day) until 5:30pm on Tuesday and Thursday in each week; and

    3.2from 9:30am until 5:30pm on Sunday in each alternate week;

    3.3on Christmas Day from 9.00am until 12.30pm.

    4.Commencing from 36 months and 1 day from the date of the making of these Orders and the date of the husband completing the [LL Group] Anger Management Course, whichever is the latter, the child spend time with the father as follows:

    4.1from the conclusion of school (or 3.00pm if not at school) until 5:30pm on Thursday in each week; and

    4.2from 5:30pm on a Saturday until 10:00am on Sunday in each alternate week.

    5.Commencing from 48 months and 1 day from the date of the making of these Orders and the date of the husband completing the [LL Group] Anger Management Course, whichever is the latter, the child spend time with the father as follows:

    5.1from the conclusion of school (or 3.00pm if not at school) until 5:30pm on Thursday in each week; and

    5.2from 5:30pm on a Saturday until 5:30pm on Sunday in each alternate week.

    6.Commencing from 60 months and 1 day from the date of the making of these Orders and the date of the husband completing the [LL Group] Anger Management Course, whichever is the latter, the child spend time with the father as follows:

    6.1from 5:30pm [on] Saturday until 5:30pm on Sunday in each alternate week;

    6.2from the conclusion of school (or 3.00pm if not a school day) on Thursday until the commencement of school on Friday (or 9.00am if not a school day).

    7.Commencing from 72 months and 1 day from the date of the making of these Orders and the date of the husband completing the [LL Group] Anger Management Course, whichever is the latter, the child spend time with the father as follows:

    7.1During school term time in week 1 from the conclusion of School on Friday until the commencement of school or 9.00am on Monday.

    School holidays

    8.Commencing from five years from the date of the making of these Orders, during school holiday time:

    8.1for one week in the school holiday period commencing at the conclusion of Term 3 with such week to be agreed between the parties and in the absence of agreement, then the first week, with changeover occurring at 9am on Saturday; and

    8.2for 3 single week periods in the Christmas holiday period with such week periods to be agreed between the parties and in the absence of agreement, then the 1st week, 5th week and 7th week, with changeover occurring a 9am on Saturday.

    9.That Order 22 be varied to delete the words “until January 2021”.

    10.That Order 9 be varied to add the words after husband “with such time to be supervised by a nanny or supervisor until the husband completes the [LL Group] 12 week Anger Management Course” and at 9.4 at the conclusion add the words “commencing in 2021” and at 9.5 at the conclusion add the words “commencing in 2022” and delete 9.6.

  1. The wife is not opposed to the husband and the child spending time together.  But the essence of her appeal appears to be an endeavour to achieve parenting arrangements which would require the child’s time with the husband to be supervised by the nanny for a period of 12 months from the date of making the orders and until the husband completes a specified anger management course.

  2. The wife is seeking that Orders 5 (so far as it requires time spent to be unsupervised), 6, 7, 8, 9, 18, 19 and 21 be stayed until the determination of her appeal.  In effect, the wife seeks a stay on terms which would enable time to be spent between the child and the husband on the basis that such time would be supervised by the child’s nanny whose services the wife would pay for.

  3. Following receipt of the judgment and orders, the husband made endeavours to fulfil the requirements of the orders that he complete an anger management course.  Firstly, the husband consulted a Mr MM, Psychologist and Psychotherapist on the occasions of 4, 7 and 12 December 2018.  After the three sessions Mr MM provided the husband with his written opinion that there was no need for “continuing therapy sessions, as [the husband] has shown that he has developed in such a way that he is able to maintain respect, calmness and mutuality in his personal relationships”.  Mr MM certified that the husband “has satisfactorily completed the sessions where we have focussed on anger management and that in my view he is unlikely to become engaged in angry, hostile or conflictual encounters in the future”. 

  4. The husband sent this written opinion to the wife on 13 December 2018 expressing to the wife his view that he had completed the required anger management course.  The wife was not satisfied that the requirement under the orders for the husband to complete the anger management course had been complied with.  Her solicitors wrote to the husband on 13 December 2018 informing the husband of the wife’s contention and indicating that the wife would continue to have the nanny in attendance to supervise time between the husband and the child.  The husband informed the wife that he would be collecting the child the next day at 3.00 pm.  The wife indicated that the nanny would bring the child and the husband replied that the nanny could drop the child off but she would not be staying.

  5. On 14 December 2018 when the nanny delivered the child to the husband he informed her that she would not be required.  It appears that there was an altercation between the husband and the nanny and it is clear that he took the child.  The nanny called the Police.

  6. It is unnecessary to go into further detail about this incident. Suffice it to say that the husband appears to have taken it upon himself to have spent unsupervised time with the child on that occasion.  To the time of hearing the stay application, that is, 7 March 2019, the husband had not spent time with the child since 14 December 2018.

  7. The husband made further endeavours to comply with the requirement to attend an anger management course.  He contacted LL Group and it appears that they arranged for a Ms NN, a social worker, to conduct an anger management course involving the husband.  Ms NN said that she is qualified and trained in providing LL Group’s 12 week course or similar course.  Ms NN provided the husband with a document in which she certified that he attended “The LL Group’s 12 week course, or a similar course, (“the Anger Management Course”)”.  This document, which was described as a Certificate of Completion was forwarded by the husband’s solicitors to the wife’s solicitors on 20 February 2019.  The wife took issue with this and had her solicitors inform the husband’s solicitors that she did not accept that the husband had complied with the requirement to attend an appropriate anger management course.

The applicable law

  1. The relevant legal principles which govern the granting or otherwise of an application to stay orders have been set out in numerous authorities of this Court.  I propose to refer to only two authorities.  The first is the longstanding decision of the Full Court in Clemett & Clemett (1981) FLC 91-013 at page 76,175 where Nygh J, with whom Dovey and Ross-Jones JJ agreed, said as follows:

    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.

  2. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 the Full Court set out the principles relevant to determination of a stay application as follows:

    ·   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.

  3. These parties have been involved in litigation about the parenting arrangements for their child now over a long period.  I accept that the wife is very concerned about the prospect of the child spending time with her father unsupervised.  The wife said that since judgment was delivered with the prospect that the child would be spending unsupervised time with the husband, she has become increasingly anxious.  She said that the thought of the child spending unsupervised time with the husband causes her to become teary and increasingly emotional.  She said that she finds it hard to focus at work and often for no reason at all breaks down in tears.  She said that she often finds it difficult to sleep at night. She said that she is so scared and frightened of the husband that she cannot be in the same room as him.  She said that she is fearful that the child when spending time with the husband will be exposed to him being aggressive and violent.

  4. Having seen and heard the wife during cross-examination, I accept her assertions in this regard.  Accordingly, I accept her bona fides in filing her appeal and I do not regard such as a delaying tactic.  In my view, given the wife’s anxiety and her fears concerning the husband and his behaviour, if the stay sought by her is not granted her appeal would be rendered largely nugatory.  This is because the essence of her appeal is to postpone the commencement of the time when the husband will have unsupervised time with the child and, in time, overnight unsupervised time with the child.  As can be seen from my orders of 22 November 2018, upon the husband satisfactorily completing the required anger management course and providing to the wife the certificate of completion, Order (6) would require his time with the child to be unsupervised.

  5. In relation to the strength of the wife’s proposed appeal, considerable time was taken by counsel on behalf of the wife endeavouring to press the substance of the grounds.  I must say, as a trial judge, I usually find it difficult to make an assessment of the strength of an appeal against one’s own decisions.  As I have said, I do not regard the filing of the appeal to be a delaying tactic.

  6. In relation to the time in which the appeal could be heard, I indicated during the hearing that my general sense of progress of the list of pending appeals led me to think that there would be little delay and that the waiting time would probably involve only some months. 

  7. If the stay was granted the child would continue to be able to spend time with her father, albeit on a supervised basis.  I accept that there is a certain artificiality and limitation imposed by the supervision which has continued now over a long period of time.  I accept also that there would be considerably greater opportunity for the child to develop a meaningful relationship with her father if time spent was not supervised.

  8. In weighing the relevant principles, in my view, the balance swings clearly in favour of granting the stay, particularly because not to do so would render the wife’s appeal largely nugatory and I am confident that the appeal will be able to be heard without reasonable delay.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 May 2019.

Associate: 

Date:  13 May 2019

Key Legal Topics

Areas of Law

  • Family Law

  • Civil Procedure

Legal Concepts

  • Appeal

  • Costs

  • Stay of Proceedings

  • Jurisdiction

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