Sellers and Sellers (No.2)
[2016] FCCA 2381
•13 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SELLERS & SELLERS (No.2) | [2016] FCCA 2381 |
| Catchwords: FAMILY LAW – Stay Application – appellant Father seeking a stay of final orders made by this Court on 19 August 2016 pending the outcome of his appeal – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: House v The King (1936) 55 CLR 499 |
| Applicant: | MR SELLERS |
| Respondent: | MS SELLERS |
| File Number: | MLC 9623 of 2015 |
| Judgment of: | Judge Bender |
| Hearing date: | 9 September 2016 |
| Date of Last Submission: | 9 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 13 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tulloch |
| Solicitors for the Applicant: | J A Middlemis |
| Counsel for the Respondent: | Mr McLeod |
| Solicitors for the Respondent: | Joliman Lawyers |
ORDERS
The Father’s application for a stay of the Orders dated 19 August 2016 is hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sellers & Sellers (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9623 of 2015
| MR SELLERS |
Applicant
And
| MS SELLERS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 August 2016 final orders were handed down whereby the Mother was permitted to relocate with the parties’ children X born (omitted) 2007 (‘X’) and Y born (omitted) 2012 (‘Y’) from (omitted) to (omitted).
Whilst the Mother had indicated in her evidence a desire to immediately relocate, she took on board the comments in my ex-tempore judgment that she delay relocation by a week to enable X to attend his book parade and say goodbye to his school friends.
On 25 August 2016 the Father filed a Notice of Appeal seeking that the appeal be upheld and the proceedings be remitted for trial by a different Federal Circuit Court Judge. In the Notice of Appeal he Father set out seven grounds of appeal with a notation that the grounds of appeal had been prepared without the Appellant’s practitioner having had an opportunity to consider the transcript or to read a transcript of the ex-tempore judgment of the Court and accordingly noted it may be necessary to amend the grounds of appeal and/or to add additional grounds of appeal upon the settled judgment being released or the transcript received.
Contemporaneously with the filing of the Notice of Appeal the Father filed an Application in a Case seeking that the Orders made on 19 August 2016 be stayed, that until further order the interim orders made by the Federal Circuit Court of Australia on 23 November 2015 be reinstated and the Mother be restrained from relocating the residence of the children away from the (omitted) area.
On 9 September 2016 the Father filed an Amended Notice of Appeal in which the seven grounds of appeal that had been set out in the original Notice of Appeal were excised and the Father detailed six grounds of Appeal which will be detailed in these reasons.
Evidence and Submissions
The Father relies on his affidavit sworn 25 August 2016 and the submissions made on his behalf by Counsel.
The Mother relies on her Response to an Application in a Case, her affidavit sworn 29 August 2016 and submissions made on her behalf by Counsel.
The Relevant Law
The principles relating to a stay application involving children’s orders are now well established and have been cited with approval by the Full Court in multiple cases including Tranh & Long [2008] FamCAFC 194, Cape & Cape [2013] FamCAFC 114, Blakely & Morrell (No.2) [2014] FamCAFC 226 and Sheldon & Weir [2011] FamCA 2.
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, Bryant CJ, Boland and Chrisford JJ, set out the applicable principles of a stay application at paragraphs 17 and 18 as follows:
17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
·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.
The Grounds of Appeal
The Grounds of Appeal set out in the Amended Notice of Appeal filed by the Father on 9 September 2016 are as follows:
1.Given her findings (at paragraphs 114,117,118,120 and 131 of her reasons) about the parties’ lack of capacity to communicate with each other, her Honour erred in:
(a) Permitting the mother to relocate with the children to the (omitted) area;
(b) Failing to properly consider and/or give adequate reasons about the impact that the parties’ lack of capacity to communicate might have on implementing time and communication between the father and the children upon the mother and children relocating; and
(c) Relying upon and/or giving undue weight to the evidence of Mr B (at paragraph 67 of her reasons) when such evidence was given without any proper explanation by Mr B as to the basis upon which he expressed such belief.
2.Her Honour erred in making findings about the mother’s unhappiness at paragraphs 54,162, and 166 of her reasons for judgement due to:
(a) The absence of any expert evidence being called by the mother regarding her emotional state; and
(b) By relying upon and/or giving undue weight to the evidence of Mr B (at paragraph 71 of her reasons) when such evidence was given without any proper explanation by Mr B as to the basis upon which he expressed his opinion.
3.Her Honour erred in giving undue weight to her findings about the mother’s unhappiness and failed to adequately consider and/or give reasons as to why the Mother’s unhappiness was the more significant factor in determining that the mother and children should be permitted to relocate when she also found (at paragraph 167 of her reasons for judgment) that the relocation would result in the children having a “less than optimal” relationship with their father, maternal and paternal families.
4.Her Honour erred in taking into account hearsay evidence given by the mother (at paragraph 47 of her reasons) that “….she has spoken to X’s current teacher and his proposed teacher at (omitted)’s and that they have told her it would make no difference to X when relocation occurred.”
5.In determining that “X should have at least next week…” (at paragraph 170 of her Honour’s reasons for judgment) but otherwise the mother and children would be permitted to relocate immediately despite the evidence of the mother (at paragraph 49 of her reasons) “….that X is not a boy you can spring things on and that he deals with change much better if he knows what is happening in advance so he has time to think things through” her Honour:
(a) Erred; and/or
(b) Failed to give adequate reasons.
6.Her Honour erred in failing to give any and/or adequate consideration to providing for a time before relocation to further establish the relationship between father and children particularly in light of:
(a) The age of the younger child Y (4 years) and her close relationship with the father;
(b) The fact that an immediate relocation would not permit X to conclude the current school year in (omitted); and
(c) Her finding (at paragraph 108 of her reasons) that the children have adapted to fortnightly travel between (omitted) and (omitted) which suggests that the need for relocation is not immediate from the perspective of the children and they would manage well with a continuation of the present arrangements for a period of time.
Consideration of the Relevant Considerations:
The bona fides of the Applicant
It is submitted on behalf of the Father that the Father holds a genuine belief that the Court erred in the decision it made in allowing X and Y to relocate and that the appeal is genuine and is not in any way a delaying tactic.
It is submitted on behalf of the Mother that the Father filed an application seeking orders that the Mother be prevented from relocating with X and Y to (omitted). It is submitted that the Father therefore is the one who called in “the umpire” and he now does not like “the umpire’s decision”.
It is submitted on behalf of the Mother that the Father’s appeal is without merit and that his appeal is nothing more than a delaying tactic. In those circumstances the Mother challenges the bona fides of the Father in bringing the appeal.
I accept that the Father genuinely holds a belief that the decision of the Court is wrong and I am therefore of the view that he is bona fide in bringing his appeal.
The weighing of the risk that an appeal may be rendered nugatory if the stay is not granted in this matter
If the stay is not granted in this matter, the Father’s appeal will not be rendered nugatory as in the event the appeal is upheld, X and Y will be able to return to (omitted).
The entitlement of the Wife to the benefit of the judgment and the balance of convenience and the competing rights of the parties
In the Mother’s affidavit sworn 29 August 2016 she sets out the disadvantages to her, X and Y if the stay application is granted and she is unable to relocate to (omitted) forthwith.
In paragraph 6 of the Mother’s affidavit she deposes that after the decision was handed down she immediately started making arrangements for she, X and Y to move to (omitted).
The Mother deposes that she spoke to the principal at (omitted) School in (omitted) where X is to attend to confirm that X will be starting school on 29 August 2016. It is the Mother’s evidence that as Monday 22 August 2016 was a pupil free day at X’s primary school in (omitted), the Mother made arrangements for she and X to tour (omitted) School on the 22nd of August.
In paragraph 8 of the Mother’s affidavit she deposes that she and X toured (omitted)’s on Monday 22 August 2016. The Mother deposes that X asked a lot of questions and became very excited about the prospect of his new school and facilities available to him at that school.
In paragraphs 12 and 13 of the Mother’s affidavit she deposes that on 23 August 2016 she spoke to X’s current school teacher in (omitted) to advise her of the Judge’s decision and that they would be moving the following weekend.
The Mother deposes that X’s teacher suggested a little goodbye party for X which was arranged for the Thursday of that week after recess.
In paragraph 14 of the Mother’s affidavit she deposes to advising her employer of the decision permitting relocation and that her last day of her work was on Thursday 25 August 2016. The Mother deposes that it is her belief that her now previous employer has already filled her position.
The Mother further deposes that she is only in receipt of a part-pension which does not meet the everyday living expenses for herself, X and Y. In the event the stay is granted, the Mother deposes she will now be reliant upon her partner Mr F for financial support which will cause extreme financial hardship for herself and Mr F who will be required to support two households.
In paragraph 17 of the Mother’s affidavit she deposes that in participation of the relocation, she packed up all her own, X and Y’s belongings and took most of them to (omitted) on the weekend of 20 and 21 August 2016.
Does the Appellant have an arguable case?
It is submitted on behalf of the Father that his appeal is genuine and that there are proper matters for argument before the Full Court.
It is submitted on behalf of the Mother that the Father’s grounds of appeal make no allegations that there has been an error of law or fact and that in reality the appeal is nothing more than an attack on the exercise of the discretion of the Court. It is submitted therefore that the chances of success of the Father’s appeal is not great.
I will briefly consider each of the grounds of the appeal.
Ground 1: Given her findings (at paragraphs 114,117,118,120 and 131 of her reasons) about the parties’ lack of capacity to communicate with each other, her Honour erred in:
(a) Permitting the mother to relocate with the children to the (omitted) area;
(b)Failing to properly consider and/or give adequate reasons about the impact that the parties’ lack of capacity to communicate might have on implementing time and communication between the father and the children upon the mother and children relocating; and
(c) Relying upon and/or giving undue weight to the evidence of Mr B (at paragraph 67 of her reasons) when such evidence was given without any proper explanation by Mr B as to the basis upon which he expressed such belief.
It is submitted on behalf of the Mother that the Court properly considered the impact of the parties’ current communication difficulties as is evidenced by the paragraphs cited by the Father under this ground of appeal.
It is further submitted on behalf of the Mother that the evidence before the Court is that since the parties’ separation in December 2014, the parties have either by agreement or as a result of the orders of the Court ensured that X and Y have spent regular time with both parents and that at no time has either party failed to make X and Y available to spend time with the other or breached the Orders of the Court for time to take place.
It is therefore submitted on behalf of the Wife that it was clearly open on the evidence before the Court, for the Court and Mr B to be satisfied that despite the parties’ communication difficulties each of the parties would encourage and promote X and Y’s relationship with the other.
Grounds 2: Her Honour erred in making findings about the mother’s unhappiness at paragraphs 54,162, and 166 of her reasons for judgement due to:
(a) The absence of any expert evidence being called by the mother regarding her emotional state; and
(b)By relying upon and/or giving undue weight to the evidence of Mr B (at paragraph 71 of her reasons) when such evidence was given without any proper explanation by Mr B as to the basis upon which he expressed his opinion.
Ground 3: Her Honour erred in giving undue weight to her findings about the mother’s unhappiness and failed to adequately consider and/or give reasons as to why the Mother’s unhappiness was the more significant factor in determining that the mother and children should be permitted to relocate when she also found (at paragraph 167 of her reasons for judgment) that the relocation would result in the children having a “less than optimal” relationship with their father, maternal and paternal families.
It is submitted on behalf of the Mother that when giving his viva voce evidence Mr B expanded on what he had meant by the use of the term “unhappiness” in his report and the basis upon which he formed the view that it was in X and Y’s best interests that the Mother be permitted to relocate to (omitted).
It is further submitted on behalf of the Mother that that Court properly looked at all relevant factors in determining the best interests of X and Y and to say that the decision hinged on the question of the unhappiness of the Mother is to oversimplify the basis of the decision of the Court to allow relocation.
Ground 4: Her Honour erred in taking into account hearsay evidence given by the mother (at paragraph 47 of her reasons) that “….she has spoken to X’s current teacher and his proposed teacher at (omitted)’s and that they have told her it would make no difference to X when relocation occurred.”
It is submitted on behalf of the Mother that she was perfectly entitled to give evidence of a conversation she herself was a party to and that it was a matter for the Court as to what weight to give to that evidence.
It is submitted on behalf of the Mother that the question of the timing of relocation was put to Mr B by the Father’s counsel during cross-examination and in particular whether it would be better for X and Y if relocation, if allowed, be delayed either until the end of X’s third term or the end of the school year. It was Mr B’s very clear evidence that he was not of the view that a delay in relocation would be of benefit to either or X or Y in the event the Court formed the view it was in their best interests to move to (omitted).
It is therefore submitted on behalf of the Mother that the basis for the decision of the timing of the relocation was as a result of the evidence of the expert witness as is borne out in paragraphs 169 and 170 of the judgment.
Ground 5: In determining that “X should have at least next week…” (at paragraph 170 of her Honour’s reasons for judgment) but otherwise the mother and children would be permitted to relocate immediately despite the evidence of the mother (at paragraph 49 of her reasons) “….that X is not a boy you can spring things on and that he deals with change much better if he knows what is happening in advance so he has time to think things through” her Honour:
(a) Erred; and/or
(b) Failed to give adequate reasons.
The Mother’s evidence as summarised in paragraph 49 of the reasons was in response to a question put to her as whether X was aware she wanted to immediately move to (omitted) if relocation was allowed. When she indicated that X was aware that it was her intention to move immediately if permitted to do so, she was challenged as to appropriateness of involving him in adult issues. It was in this context she explained X is a child who needs to know what is happening in advance.
It is submitted on behalf of the Mother that the evidence before the Court was that X had been aware for eighteen months that the question of relocation was unresolved between his parents that the Judge was about to decide and that because he was aware of the plans to relocate if the Judge said “yes”, this evidence supported the decision to not delay relocation.
Ground 6: Her Honour erred in failing to give any and/or adequate consideration to providing for a time before relocation to further establish the relationship between father and children particularly in light of:
(a) The age of the younger child Y (4 years) and her close relationship with the father;
(b) The fact that an immediate relocation would not permit X to conclude the current school year in (omitted); and
(c)Her finding (at paragraph 108 of her reasons) that the children have adapted to fortnightly travel between (omitted) and (omitted) which suggests that the need for relocation is not immediate from the perspective of the children and they would manage well with a continuation of the present arrangements for a period of time.
It is submitted on behalf of the Mother that Y’s age, her close relationship with the Father and the preservation of that relationship of that relationship with the Father if relocation was allowed was fully canvassed with Mr B. It is submitted Mr B’s evidence that Y will be able to maintain a relationship with the Father if relocation was allowed, is properly addressed in the judgment.
It is further submitted on behalf of the Mother that Y has spent substantial time with the Father since 2015 and therefore everything has been done to ensure Y has a close and meaningful relationship with the Father that will continue going forward in the event of relocation.
It is submitted on behalf of the Mother that Grounds 6(b) again addresses the timing of relocation and is a repetition of Grounds 4 and 5.
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.
It is unknown when this appeal can be heard.
It is submitted on behalf of the Father that he will do all things necessary to have this appeal expedited and heard as soon as possible.
Enquiries of the Appeals Registrar for the Southern Region revealed that the draft appeal index in this matter is due at the end of September and that in this circumstance it is unlikely this appeal will be able to be heard until the sittings of the Full Court in February 2017. It is fully acknowledged that the listing of the appeal will be a matter for the Full Court to determine.
It is submitted on behalf of the Father that the existing arrangements for X and Y are more than satisfactory and X and Y will continue to be able to spend significant and substantial time with both parents until the appeal is determined.
It is further submitted that in X’s case he can continue to stay at his current school.
In the Mother’s affidavit at paragraph 8 she deposes to X’s face beaming after completing his tour of (omitted)’s on 22 August 2016 and of his excitement about starting at his new school.
In paragraph 16 of her affidavit the Mother deposes to having to explain to X that they would not move on the weekend after being served with the Father’s Notice of Appeal and of X becoming confused and upset when told that this was not going to happen.
In paragraph 18 of the Mother’s affidavit she deposes to the impact on her and the children of further delay in relocation in the following terms:
18. I have been in a relationship with Mr G for 18 months; it has been very taxing on us having to travel every weekend to see each other. It has taken its toll, emotionally, physically and psychologically on the children and myself. The children and I need stability. The whole roller coaster ride is not assisting in fostering a child focused routine for the children whereby they are settled. If it was that I am forced to remain in (omitted) it could possibly, in the long term, have a drastic impact on my relationship with Mr G and my physical, psychological and emotional wellbeing not to mention the children’s. My ability to properly manage as a parent may also be compromised. As previously deposed my move will greatly improve my career opportunities, self-esteem and ability to contribute to the support and advancement of the children.
The desirability of limiting the frequency of any change in the children’s living arrangements; and
The best interests of the child the subject of the proceedings are significant.
Whilst these matters are listed as separate principles to consider when determining a stay application, the Full Court in the matter of Friscioni & Friscioni [2009] FamCAFC 43, held at paragraphs 55 to 57 as follows:
55. In cases where a stay is sought of parenting orders pending an appeal against those orders it has long been recognised that there are other factors that may be relevant. This was recognised by Kirby J in JRN & KEN v IEG & BLG (supra) who said at 1332: “In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests”. In other words it is important to consider the “consequences for a child of granting or refusing a stay”: EJK and TSL (No. 2) (supra) per the Full Court (Coleman, May and Boland JJ) and K and B (2006) FLC 93-288 at 32 per the Full Court (Warnick, May and Boland JJ).
56. In Clemett and Clemett (supra) Nygh J said at 76,175:
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.
57. In Trahn and Long (No.2) (supra) the Full Court included as “principles” the following:
the desirability of limiting the frequency of any change in a child’s living arrangements may support the granting of a stay for a short period of time; and
the best interests of the child the subject of the proceedings.
It may be that these are not separate factors but that in the context of consideration of the best interests of a child it is desirable to limit the frequency of changes in the living arrangements for a child.
The Father’s Counsel agreed with my observation that there is paradox in requiring the trial judge who has already determined what is in the best interests of the children concerned to consider that question again on an application for a stay pending appeal.
It is submitted on behalf of the Father that the difference between the assessment of children’s best interests at trial and of children’s best interest upon a stay application is the importance the law attaches to limiting the frequency of changes in children’s living arrangements on a stay application.
In the matter of Blakely & Morrell(No.2) [2014] FamCAFC 226 at paragraph 42 the Full Court held as follows:
42. In the circumstances of this case it was incumbent upon his Honour to give careful attention to the line of authority commencing with Clemett & Clemett (1981) FLC 91-013 which emphasises the importance of cases involving children to limiting the frequency of changes in their living arrangements.
I am of the view that a stay application involving children must be approached on the basis that the best interests of the children are the paramount consideration. When considering what is in the best interests of the children, the Court must consider those matters set out under section 60CC of the Family Law Act 1975 (Cth) (“the Act”) and in addition, the desirability of limiting the frequency of any changes in the child’s living arrangements.
There will be matters where the desirability of limiting the changes to a child’s living arrangements will be given great weight in the determination of the child’s best interests when delivering a stay application and other matters where that issue will not be relevant. This factor is not to be given precedence over any of the other factors set out in section 60CC of the Act. Each matter will be determined on the particular circumstances that apply to that case.
It is submitted on behalf of the Father that the best interests of X and Y are met by them continuing in to stay in (omitted) until such time as the appeal is determined.
It is submitted on behalf of the Father that if the stay is not granted X will be required to change school, Y will commence kindergarten in (omitted) and both will be uprooted from their community and extended families. If the appeal is successful they will be required to move back to (omitted) which unnecessarily undermines X and Y’s stability.
It is submitted on behalf of the Mother that it is not in X and Y’s best interest to allow the stay.
It is submitted on behalf of the Mother that she, X and Y have been living in a state of limbo for over twenty months and that to continue that uncertainty for what in all probability will be another twelve months before this appeal is determined, will be more destabilising for X and Y than allowing them to relocate to (omitted) at this time where both she and X and Y will have some level of certainty in the interim period.
It is submitted on behalf of the Mother that if the appeal is ultimately successful and on retrial relocation is not allowed X and Y will be able to move back to (omitted) without undue distress or disruption to their lives.
It is submitted on behalf of the Mother that for her to remain in (omitted) will cause her considerable distress in terms of having to continue a long distance relationship with Mr F, living in cramped accommodation with her Father and, given that she had ceased her employment, a commensurate loss of income increasing the financial burden on Mr F to support two households.
Conclusion
In this matter there is no issue that the appeal is bona fide or that a failure to grant the stay would render the appeal nugatory.
It is submitted on behalf of the Mother that the grounds of appeal as set out in the Father’s amended Notice of Appeal exhibit no error of law but rather go to the discretionary nature of the decision. It is therefore argued that the Father has not established that he has an arguable case such that it would justify a stay of the decision.
It is the submission of the Father that he does have an arguable case on the basis that I erred in the exercise of my discretion in making the decision.
Counsel for the Father quite properly referred the Court to the principles in House v The King (1936) 55 CLR 499 which sets out the manner in which an appeal against an exercise of discretion should be determined.
Whilst disagreement by an appellant Court on matters of weight only do not justify a reversal of the primary judge (Gronow v Gronow (1979) 144 CLA 513 at 519),
Where a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect him or her, mistakes the facts or does not take into account some material consideration then the decision can be overturned by the appellate Court.
It is therefore submitted on behalf of the Father that the matters raised in the Notice of Appeal go to there being an erroneous exercise of discretion by the Court and as such the Father has an arguable case.
I accept the Father’s submissions in this regard.
At this time, the question of when this appeal will be heard is unknown although realistically it is not likely to be until 2017. There is some merit in the Mother’s supposition that it could be up to twelve months before the outcome of the appeal is known.
This stay application therefore must be determined on the question of whether it is in X and Y’s best interests that a stay be granted, taking into consideration the Section 60CC factors and the desirability of limiting the frequency of any changes for X and Y.
I have clearly determined that I am of the view that it is in X and Y’s best interest to relocate, hence the Orders of 19 August 2016.
However, I am required to again consider X and Y’s best interests in the context of a stay application not only on the factors set out under Section 60CC but also considering the desirability of limiting the frequency of any changes in their living arrangements.
In this matter, X and Y have been living in a state of uncertainty since at least March 2015 when the Mother’s commitment to her relationship with Mr F was cemented and she, X and Y began their regular commute between (omitted) and (omitted) whilst waiting for a decision as to whether that could become a permanent move.
The Mother, X and Y have been living in the maternal grandfather’s home in (omitted) rather than restabilising their own home in that area in the clear hope that they would be able to move to (omitted) into the home with Mr F which has been set up for the Mother, X and Y to move into, a home the Mother’s Counsel describes as one of three homes X and Y currently live in.
It is submitted on behalf of the Father that a stay will enable X and Y to continue the living arrangements with which they have been familiar since the parties separated and that this will limit the changes that may be imposed upon them in the event his appeal is successful.
It is submitted on behalf of the Mother that to require X and Y to continue to live in limbo for an extended and unknown period of time will place them in a position of greater uncertainty than if permitted to relocate.
It is further submitted on behalf of the Mother that the physical and emotional toll on her of not being able to relocate which would involve her commuting every weekend to be with Mr F, the loss of her employment as she had acted on the Orders that permitted her to relocate and had left her employment and the financial burden that maintaining two households will place on Mr F also adds to the uncertainty for herself, X and Y.
I am of the view that to require X, Y and the Mother to continue to live in limbo with an unknown future for what is realistically anywhere up to twelve months, is more destabilising for them than is the possibility of a return to (omitted) sometime in the future if the appeal is successful.
In the interim, I am of the view that a settled life in (omitted) with the Mother will give them the stability and security that is needed in their lives and will be less disruptive than a continuation of the current arrangements.
In these circumstances the Father’s application for a stay of the Orders made on the 19 August 2016 is dismissed and those Orders will remain in full force and effect pending the outcome of the appeal.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Bender.
Date: 13 September 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Stay of Proceedings
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Appeal
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