Sheldon & Weir
[2011] FamCA 2
•11 January 2011
FAMILY COURT OF AUSTRALIA
| SHELDON & WEIR | [2011] FamCA 2 |
| FAMILY LAW – CHILDREN – application to stay final parenting orders – orders permit international relocation – factors discussed – stay refused |
| Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 Friscioni & Friscioni [2009] FamCAFC 43 Green & Knowles[2010] FamCAFC 248 Gronow v Gronow (1979) 144 CLR 513 K & B (2006) FLC 93-288 Lovell v Lovell (1950) 81 CLR 513 Truong & Liu (No. 2) [2008] FamCAFC 194 |
| APPLICANT: | Mr Sheldon |
| RESPONDENT: | Ms Weir |
| FILE NUMBER: | NCC | 3259 | of | 2009 |
| DATE DELIVERED: | 11 January 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney and Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 December 2010 and 10 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Peattie on 21 December 2010 and the father on his own behalf on 10 January 2011 |
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring Solicitors on 21 December 2010 |
| COUNSEL FOR THE RESPONDENT: | Mr Tregilgas on 21 December 2010 and Mr Bithrey on 10 January 2011 |
| SOLICITOR FOR THE RESPONDENT: | Burke Elphick & Mead |
Orders
That the father’s application that the Court grants a stay of orders made in these proceedings on 8 December 2010 is dismissed.
Prior to the mother’s departure from Australia with the child she shall lodge with Burke Elphick & Mead the proceeds of sale of her motor vehicle.
In the event the mother has been unable to sell her motor vehicle prior to her and the child’s departure from Australia, a trustee for sale shall be appointed to sell the motor vehicle to a bona fide third party for the best price reasonably obtainable. Upon sale the trustee shall deposit the sale proceeds with Burke Elphick & Mead.
Burke Elphick & Mead shall hold the sale proceeds on trust in a controlled monies account pending:
(a)dismissal of the father’s appeal in which case the money shall be returned to the mother; or
(b)in the event of this Court orders the mother to return the child to Australia which she fails to do by the appointed date, release the funds to the father,
whichever first occurs.
That within 24 hours the solicitors for the mother shall give written notice to the father and the Court of the person nominated by the mother to be the trustee for sale of the motor vehicle.
Submissions as to costs shall be made in writing within 28 days by an applicant, reply within 14 days and any additional submissions in answer within a further 7 days.
IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE (BY VIDEOLINK FROM SYDNEY) |
FILE NUMBER: NCC 3259 of 2009
| Mr Sheldon |
Applicant
And
| Ms Weir |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the father’s Application in a Case, filed 17 December 2010, in which he seeks that the parenting orders I made on 8 December 2010 are stayed pending determination of his appeal. The pivotal matters in the 8 December 2010 parenting orders are orders for the mother to have sole parental responsibility and permission to remove the parties’ two and a half year old daughter from Australia and relocate to the Republic of Ireland. The orders he seeks in lieu are those contained in his Amended Application filed on 17 March 2010. The salient points are orders for equal shared parental responsibility, the mother not be at liberty to relocate with the child to the Republic of Ireland and his time with the child be increased so that within nine months she spends time with him six nights in each fourteen during school term and half school holidays.
On 21 December 2010, contrary to the mother’s submissions, I delivered short oral reasons for my decision to grant a temporary stay effective until 11 January 2011 or further order, whichever first occurs, and adjourned the matter for further hearing on 10 January 2011. On that occasion the parties were represented by counsel each of whom had an instructing solicitor. The further hearing date was discussed and 10 January 2011 appointed after both counsel indicated it was acceptable. Two days after the matter was adjourned the father’s solicitors filed a Notice of Ceasing of Act. He appeared on his own behalf for the second day of his stay application. The mother was represented by her solicitor on the second day.
Background facts
In my reasons delivered 21 December 2010 I recited key components of the chronology referred to in my substantive reasons; that is, my judgment published 8 December 2010. Although it involves some repetition it is appropriate to repeat those matters, as well as refer to additional matters of chronology, which, because of the nature of the submissions made on 10 January 2011 become relevant.
The mother was born in Ireland in 1977.
The father was born in Australia in 1979.
When the father was 19 years his paternal grandmother told him she was Aboriginal. Until this conversation in about 1998, neither he nor his family identified or had any particular interest in the Aboriginal community. His learning and embracing of his indigenous heritage has thus occurred in adulthood.
On 2 April 2004 the J Co-operative issued the father with a Certificate of Aboriginality.
On 2 February 2005 the mother left Ireland for an international working holiday. She arrived in Australia on 5 May 2006.
Having returned to Ireland for a wedding, in January 2007, the mother returned to Australia.
The parties met on 28 May 2007 and within a short time, they began dating.
By August 2007, the mother was pregnant with the subject child.
From when the mother discovered she was pregnant, she told the father she planned to return to Ireland to have the baby where she wanted the child to grow up. The father was supportive and agreed to accompany her to Ireland.
On 1 September 2007, the mother told her parents she was pregnant and that she and the father would be moving to Ireland, where she would have the baby.
On 2 September 2007, the parties visited the father’s parents in Newcastle. The father informed them of the pregnancy and that they would be moving to Ireland, which was where the child would be born.
On 9 September 2007, the parties moved in together.
On 16 September 2007, the parties booked two one-way air tickets to Ireland scheduled for departure on 21 December 2007.
Later that evening, the mother’s leg began to swell. At a Hospital the following day a Doppler scan of her right leg revealed a blood clot. The mother was assessed as being in a high risk category in relation to the development of further clots and advised not to fly. Because of the risk the parties understood flying would pose to the mother and baby they agreed to postpone their journey to Ireland and cancelled their flights.
Although the parties had known one another for only a few months, they decided to try to make their relationship work for their baby’s sake.
In October 2007, the mother accepted the father’s proposal of marriage.
In January 2008, the parties moved to rental accommodation at P. The mother understood the father had obtained a transfer of his position as a teacher to a school on the Central Coast. As it transpired, he had not and after they moved to P he commuted daily to Sydney. The mother had no friends on the Central Coast and was isolated without a car.
R, the subject child, was born in April 2008 at a Sydney Hospital.
On 28 April 2008 the father commenced full-time work as a teacher at Newcastle.
From when the parties commenced cohabitation until their departure for Ireland the father worked full-time as a teacher. Because of the mother’s deep vein thrombosis she was unable to work and, from before the child was born, she did not have paid employment. After the child was born the mother did not resume paid employment with her being primarily responsible for the child’s care.
On 9 August 2008, the parties booked three one-way tickets to Ireland on a flight scheduled to depart on 16 December 2008.
After a particularly stressful incident with the father, on 27 September 2008, the mother sought advice from her general practitioner, Dr H. Dr H referred the mother to a psychologist. Amongst other matters, Dr H was concerned the mother may have been suffering from post-natal depression.
The mother commenced the first of five appointments with a psychologist on 8 October 2008. The psychologist concluded the mother did not have post natal depression and that her emotional difficulties related to her relationship with the father and what the mother described as his verbal and emotional abuse of her.
In October 2008, the parties obtained an Irish passport for the child. Although the child is a dual Australian and Irish citizen they agreed, because they planned to remain in Ireland for a prolonged period, she should have an Irish passport. In preparation for their move to Ireland, the parties commenced shipping belongings to Ireland. They sold their car on 27 October 2008 then relinquished their lease.
On 18 November 2008, the father was granted leave by his employer from the end of Term 4, 2008 until 1 November 2009.
Before the parties departed Australia, the father applied for permanent work in Ireland as a teacher. The mother was still breastfeeding and did not apply for work in Ireland.
The parties and child departed Australia on 16 December 2008 and arrived in Ireland on 17 December 2008. Upon arrival, they moved into the mother’s parents’ home.
On 3 January 2009, the parties separated. At separation the child remained with the mother and the maternal grandfather arranged for the father to stay with other members of the maternal family.
On 13 January 2009, the parties attended marriage counselling where they agreed to separate and attend mediation. The critical issue was the child’s living arrangements. By then it was clear to the father that the mother did not agree with his proposal the family return to Australia forthwith.
On 27 January 2009, the mother and child farewelled the father. He had, in the meantime, spent time with the child for a few hours at a time.
On 13 February 2009, the father lodged a Hague Abduction Convention application with the Department of Community Services in New South Wales in which he sought that Australia request Ireland to return the child to Australia.
After 3 March 2009, the father stopped contacting the mother and child by Skype. The father did not, thereafter, have contact with the child until he returned to Ireland in June 2009.
On 24 June 2009 the father and his brother, W, arrived in Ireland for the Abduction Convention proceedings.
On 24 June 2009 interim orders were made in the High Court for the child to spend time with the father. These orders are set out at paragraph 86. These orders were varied in July 2009 so that the father would spend time with the child unsupervised, every day, for three hours.
On 17 July 2009, the High Court ordered that the child be returned to Australia. During the course of the Abduction Convention proceedings, amongst other matters, the father said he would vacate the P home in favour of the mother and child, provide her with a car and contribute towards the cost of her and child’s airfare to Australia. The High Court accepted his evidence and these matters were made conditions precedent to the child’s return. By Order 8 of the return orders, the parties were ordered to do all they could to have the parenting matters “listed before an appropriate Australian Court as soon as possible and the parties will take every measure in order to expedite the hearing”.
On 20 August 2009, the mother lodged an appeal against the return order.
Between September 2009 and December 2009 the mother did not make the child available to spend time with the father as often as required. She did not dispute the father’s evidence about the extent of her non-compliance.
On 19 November 2009, the mother’s appeal was dismissed. The matter was then adjourned until 26 November 2009 for consideration of outstanding matters.
Further orders were made by the Supreme Court on 27 November 2009 (paragraph 116). The Supreme Court did not discharge the obligations imposed upon the father by the High Court. In relation to the child’s arrangements, the combined effect of the orders of 21 July 2009 and 27 November 2009 was that the child would return to Australia with the father. She would, upon arrival, remain in his care for 10 days, during which the mother would spend time with her “as she seeks” and at the end of which the child would return to the mother.
On 14 December 2009, the mother’s solicitors informed the father’s solicitors of her proposals for contact with the child during the 10 day period she was to be with the father. In short this was for daily visits with changeover at T Police Station. Only after the father had the child in his possession in Australia did he assert he was not obliged to fulfil the conditions imposed by the High Court.
On 24 December 2009, the father commenced these proceedings. His application for interim orders came before Coleman J ex parte the same day and interim orders similar to those made in Ireland resulted. Notwithstanding irregularities alleged by the father (paragraphs 135-139) these orders made enforceable in Australia obligations the father told the courts in Ireland he would fulfil. Relevantly, these included that the mother have occupation of the P home, that the property be fully furnished and be provided with the child’s toys, a car and a fully stocked fridge. The orders provided the child was to be returned to the mother on 8 January 2010 and thereafter the father would spend time with her each Sunday and Wednesday from 10.00 am until 3.00 pm.
Although the mother attended T Police Station every day to receive the child, the father did not attend or make the child available.
On 31 December 2009, the mother filed an application for a recovery order.
On 4 January 2010 the father applied for interim orders to address the 24 December 2009 orders.
The father did not return the child to the mother on 8 January 2010.
On 13 January 2010, Stevenson J made interim parenting orders which are set out at paragraph 163. In accordance with these orders, the father delivered the child to the mother at T Police Station that afternoon. For the next week the child’s time was divided between her parents in accordance with those orders.
On 20 January 2010, Austin J heard the parties’ competing applications for interim orders. His Honour made orders on 22 January 2010 which are set out at paragraph 169. Essentially, these orders provided that the child live with the mother and spend time with the father each Sunday and Wednesday from 9.00 am until 4.00 pm. The child has spent time with the father in accordance with these orders.
The first day of this Div 12A commenced before me on 15 March 2010. As well as a suite of trial directions, on this occasion the July 2010 hearing dates were allocated.
The hearing took place over seven days in July 2010. Judgment was delivered and orders made on 8 December 2010. As has been mentioned orders were made which enabled the mother to relocate the child to the Republic of Ireland. Order 32 requires that she give the father written notice in 14 days of when she plans to depart Australia with the child.
On 8 December 2010 the mother purchased aeroplane tickets for her and the child to return to Ireland.
On 9 December 2010, the mother’s solicitors informed the father’s solicitors in writing that she and the child would depart Australia for the Republic of Ireland on 23 December 2010.
As the transcript of 21 December 2010 reveals neither the father nor his solicitors responded to the mother’s solicitor’s letter of 9 December 2010. Before responding to the Court’s enquiry about whether or not there had been a response to the letter, counsel for the father sought and was given a short adjournment to clarify the situation. As recorded in my reasons of 21 December 2010, counsel for the father informed the Court his solicitors, at that stage, no longer had a grant of legal aid and they determined not to respond to the letter. It was said that the reason the father did not provide notice was because his solicitors were still on the record and he, therefore, could not communicate with the mother’s solicitors. During submissions counsel for the father agreed the father could have taken steps to inform the mother he planned to appeal, apply for a stay and opposed her making arrangements to depart Australia with the child on 23 December 2010.
As I said on that occasion, the failure by those advising the father and the father to respond to the mother’s letter of 9 December 2010, was quite troubling.
On 12 December 2010, the child returned from time with the father with a photograph album that contained photographs of her with the paternal family. On the inside cover there was written “[d]earest [R], we all love you very much. We will miss you every day. Lots and lots of love Daddy, Nanny, [other paternal family members]. Love and big kisses [R] from your whole family in Australia”. It is the mother’s evidence that “[b]ased on both the lack of notification as to [the father’s] intentions then the message contained inside the album, I inferred that [the father] did not intend to pursue an Appeal and/or Stay. I therefore proceeded to take steps in preparation of my trip to Ireland, including vacating my home, selling my belongings, and cancelling my Centrelink payments and health care card”.
The photograph album was prepared by the father’s sister, D. The father had informed her of the effect of the 8 December 2010 orders and that the mother planned to depart with the child on 23 December 2010. The father’s sister was aware the father was exploring options of appeal but contemplated she may not see the child after 12 December 2010 prior to the child’s departure. Thus she prepared the album to comfort the child and to reassure her how much she was cared for. The father did not look in the album and passed it to the mother when he returned the child to her on 12 December 2010. His point being, in essence, he had no part in conveying a message to the mother which suggested he accepted the child could depart Australia on 23 December 2010. Considered from the mother’s perspective, however, it was reasonable in the absence of a response to her solicitor’s letter of 9 December 2010 for her to regard this as another indication the father did not oppose the child’s removal from Australia on 23 December 2010.
Some of the steps preparatory for her departure were taken by the mother before she received the album. Her car was listed for sale on 12 December 2010. She gave notice to her landlord on 9 December 2010 and on 10 December 2010 informed Centrelink of the orders and her plans to depart Australia with the child on 23 December 2010. The mother’s lease had expired on 5 August 2010 which she had not renewed. After the mother gave notice she was advised the property would be unavailable to her from 21 December 2010 and that new tenants would take occupation on 23 December 2010.
On 16 December 2010, the mother moved into a spare bedroom with a friend, Ms O, and her family. There the mother and child share a bed. The child does not have a cot. The mother had sold furniture and effects at a garage sale and her mattress individually. The sale of her belongings achieved $300.00. She had given kitchenware and summer clothing to St Vincent de Paul before she received the father’s stay application.
On 17 December 2010 the father filed an Application in a Case seeking “Orders 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, 23, 32 of the Family Court of Australia at Newcastle made on 8 December 2010, in these proceedings, be stayed pending the determination of the Applicant’s Appeal from said orders.” At the time of filing his Application in a Case, the father had not filed a Notice of Appeal. He sought that the “provisions of Rule 22.11, to the extent that they require an Appeal to have been filed prior to any Application for a stay, be dispensed with.” This was the first indication by the father to the mother he would appeal and opposed her removal of the child on 23 December 2010.
I determined this Court has jurisdiction to grant a stay of orders even though a Notice of Appeal had not yet been filed and on 21 December 2010 I delivered judgment and made orders granting a stay of the 8 December 2010 orders until 11 January 2011 or further order of the Court. These orders are set out below:
1.Subject to compliance by the father with Orders 2 and 3 of these orders, Orders 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, 23, 24, 25, 31 and 32 be stayed until 11 January 2011 or further order of the Court, whichever shall first occur.
2.No later than 5.00 pm on 22 December 2010 the father shall deposit $300 cash with the mother’s solicitors towards the mother’s living expenses.
3.The father shall file and serve a Notice of Appeal, pay any required filing fee and lodge other documents required by the Family Law Rules 2004 no later than 6 January 2011.
4.In the event the father fails to comply with Order 3, Order 1 is discharged.
5.Service of the documents referred to in Order 4 is to be effected within 24 hours of filing.
6.The mother is restrained from removing the child [R] born … April 2008 from the Commonwealth of Australia before 12 January 2011 or further order of the Court, whichever shall first occur.
7.It is requested that the Australian Federal Police place the abovenamed child on the PASS alert system in force at all points of arrival and departure in the Commonwealth of Australia and maintain her on the PASS alert system until 12 January 2011 or further order of the Court whichever shall first occur.
8.The father’s Application in a Case filed 17 December 2010 is adjourned for further hearing before me at 10.00 am on 10 January 2011.
9.Liberty to apply to Ryan J on two days notice.
Events subsequent to granting the stay
Two days after I granted the temporary stay, the father’s solicitors filed a Notice of Ceasing to Act. These were the third solicitors who have represented him in these proceedings.
On the same day the father lodged a Notice of Appeal and application for a waiver.
In accordance with the orders of 21 December 2010 the father deposited $300.00 with the mother’s solicitors. That money has been used as intended, for the mother’s and child’s living expenses.
Subsequent to the granting of the temporary stay, the mother was able to transfer the departure date of her airline tickets, which are non-refundable and non-transferable, to 31 January 2011. This process cost $340.00 and was cheaper than simply cancelling her tickets. The mother would be able to change the departure dates again at a further, I infer, similar cost.
As was mentioned earlier, the mother had cancelled her Centrelink payments in preparation for her return to Ireland. The last Centrelink payment was due on 23 December 2010. On this date, the mother contacted Centrelink and advised them of the outcome of the stay application. Centrelink reinstated the mother’s single parent payment and family tax benefit, the effect of which she continues to receive Centrelink payments of $457.28 per week.
On 21 December 2010, counsel for the father informed the Court the father was willing to vacate the property his mother rented at P, ensure there was a pantry and a refrigerator stocked with basic foods, and that his grandmother had volunteered to lend the mother a car for a reasonable period so that she would have transport. On 24 December 2010, the mother’s solicitors wrote to the father and acknowledged receipt of his payment of $300.00. They also asked whether he was:
… willing to provide any further assistance to both the mother and the child whilst they remain in Australia. In particular, we enquire as to whether you will make good the following offers:
1. to provide further cash assistance to our client;
2.to provide our client and the child assistance with respect to groceries;
3. to provide our client with a motor vehicle.
On 6 January 2011, the mother filed a further affidavit which was sent to the father’s email address noted on his correspondence from the mother’s solicitors. This email address is slightly different to the email address included on the father’s Notice of Address for Service and was not received by the father. The father received the mother’s affidavit by express post the following day.
That afternoon the father hand delivered a letter to the mother’s solicitor, curiously dated three days earlier, which responded to their letter posted 24 December 2010. In relation to the points raised by the mother’s solicitors the father responded he had paid $300.00 and would continue to pay assessed child support. In relation to the second point, he correctly pointed out his offer of assistance for the groceries related to the mother moving into the P home. Nonetheless, he said he was happy to drop some bags of food to the solicitor’s office or at changeover. He queried whether the request was for “more money by another name!” In relation to the use of his grandmother’s motor vehicle, he said this offer was “intended to be for the period that it took her to secure another vehicle”. As the vehicle had not been sold, he questioned whether she required a second. He additionally offered to provide “her with some furniture for her new residence”.
The father’s mother has now given up the lease on P and he has moved to NH.
On 5 January 2010, Ms O was hospitalised with tonsillitis. Her son also had tonsillitis. In order to give the O’s some space and to avoid the child becoming ill, the mother and child moved out for a night and stayed at the home of another member of her mothers group.
Twice since 21 December 2010 Dr H has increased the dosage of antidepressant medication which the mother had been taking. She has also been prescribed sleeping medication (Normison) and referred to a psychologist. In a medical certificate dated 6 January 2011, Dr H said the mother “attended our surgery for relapse of her depression”.
The applicable law
During the hearing on 21 December 2010 there was discussion about the applicable law in applications such as this. In addition, these were referred to in my oral reasons delivered that day, particularly reference to the decision by the Full Court in Truong & Liu (No. 2) [2008] FamCAFC 194 at paragraph 38 and Friscioni & Friscioni [2009] FamCAFC 43. I incorporate paragraph 38 of Truong & Liu (No. 2) and paragraphs 53-57 of Friscioni & Friscioni [2009] FamCAFC 43 into these reasons. Because the paragraph from Truong & Liu (No. 2) (supra) is cited in my reasons delivered 21 December 2010, it is sufficient to set out here only those paragraphs referred to in Friscioni as follows:
53.This is an appeal against a discretionary judgment and in determining such an appeal there is a strong presumption in favour of the correctness of the decision. The limits on interference by an appellant court with such a judgment are well established in the authorities. It is not enough that the appeal court considers that, if it had been in the position of the court below, it would have reached a different outcome. It must be established that there has been some error made in exercising the discretion. It may be shown that there has not been a proper exercise of judicial discretion if in making the decision the primary judge acted upon a wrong principle; was guided or affected by extraneous or irrelevant matters, was mistaken as to the facts, did not take into account some material consideration or gave inadequate weight to relevant considerations. It may not appear how the result embodied in the order was reached, but if upon the facts the result is unreasonable or plainly unjust it may be inferred that in some way there has been a failure properly to exercise the judicial discretion: House v The King (1936) 55 CLR 499 (per Dixon, Evatt and McTiernan JJ) at 504-5.
54.There can be no stay of proceedings or the enforcement of a decree pending an appeal unless an order is made to the contrary and the mere filing of an appeal is not sufficient to ground a stay. This recognises that the successful litigant should not be deprived of the benefit of the litigation unless it is appropriate: Kelly and Kelly (1981) FLC 91-007 per Fogarty J. Thus the making of an order for a stay is wholly discretionary and the circumstances that would justify an order for a stay depend on the circumstances of each case. The onus of establishing a proper basis for a stay is on the applicant for the stay. Factors that may be taken into account in exercising the discretion are well settled and include what has been described as a “substantial factor” Trahn and Long (No 2) (supra) namely whether there is a real risk that to deny a stay would render a successful appeal nugatory or would make it impossible or impractical to restore the situation. However the hardship that would be suffered by an unsuccessful applicant for stay must be weighed against the hardship that would otherwise be suffered by the unsuccessful respondent to the application. In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 Brennan J at 685 included as factors relevant to take into account “whether the grant of a stay will cause loss to the respondent; and …where the balance of convenience lies”: see also De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678 per Gummow J. Other considerations are the grounds and merits of the appeal, any undue delay between the time the original order was made and the filing of the application for a stay; the bona fides of the applicant for the stay and the length of time it will take for the appeal to be heard: Carlin and Carlin (1977) FLC 90-320; Kelly v Kelly (supra); Clemett and Clemett (supra); Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (supra); De Lewinski v Director General, New South Wales Department of Community Services (supra); and JRN & KEN v IEG & BLG (supra). Some of the factors have been variously expressed. For example, in Clemett Nygh J identified as a factor whether the appeal was not a mere delaying tactic. In Trahn and Long (No 2) in relation to consideration of the merits of the appeal the Full Court described it as “some preliminary assessment of the strength of the proposed appeal-whether the appellant has an arguable case”: see also JRN & KEN v IEG & BLG (supra) per Kirby J at 1332.
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.
Notice of Appeal
The father’s filed Notice of Appeal sets out the grounds for appeal identified below. At the adjourned hearing he presented a further Notice of Appeal which he intends to file. This contained additional grounds to those contained in the filed notice. These additional grounds are also set out.
The learned Trial Judge:
1.Erred in finding of facts that are in direct opposition to the findings of facts already determined by the High Court of Ireland.
2.Erred in finding that it is possible for an Aboriginal child to share that culture from outside of the Aboriginal community.
3.Erred in giving too much weight to the Family Consultant’s view that the Child would have a ‘Strong sense of her aboriginal identity even if she lives in Ireland and does not return to Australia until 2014 and thereafter annually’.
4.Erred in failing to consider the Child’s Aboriginality and culture when ordering sole parental responsibility to the Mother, particularly where ‘cultural upbringing’ is a defined (sic) as a ‘major long-term issue’.
5.Erred in not excusing herself from hearing the proceedings after the father’s application for her to do so.
6.Erred in preferring the Mother’s evidence over that of the Father’s in globo.
7.Erred in not accepting to hear the evidenced (sic) produced by the father siblings (sic).
8.Erred to make finding about the father’s siblings without hearing their evidence.
9.Erred in finding that the Family Consultant spoke positively about the use of Skype without taking into consideration or making reference to the evidence given by the Family Consultant under cross-examination on this issue.
10.Erred in accepting the mother’s evidence as to the psychological and emotional state of the child as expert evidence.
11.Erred in finding that the Child’s physical needs had been inadequately addressed when returned to the Mother on 13 November 2009 having regard to ‘the severity of the nappy rash and weight loss’.
12.Erred in finding that that (sic) the Child had ‘seriously deteriorated’ when returned to the Mother on 13 November 2009.
13.Erred in finding that the child lost weight.
14.Erred in finding that the cause of the child losing weight in the period leading up her (sic) being returned to the Mother on 13 November 2009 was ‘loss of appetite or inadequate attention, her need for a lactose free diet, or perhaps a combination of both’
15.Erred in finding that the Father refused to allow the Mother to spend time child when they returned to Australia.
16.Erred in finding that there is a ‘real risk’ that the Child may fear that the Father ‘would keep her from her mother’.
17.Erred in finding that the Child could not adjust to overnight periods before 2014.
18.Erred in finding that the Child was absent from the mother for a 17 day period.
19.Erred in appearing to positively find that the Paternal Grandfather had sexually abused the Paternal Aunt.
20.Erred in finding that the Father’s ‘difficulty’ to say he believed his sister’s allegations of sexual abuse was a matter of ‘some significance when determining the Father’s ability to keep the child safe from his Father’.
21.Erred in finding that the Father had ‘caviled’ (sic) and ‘avoided answering the question’ about whether he was ‘20’ or ‘21’ in December 1999.
22.Erred in finding that relationship between father and child would, if she relocates to Ireland, be able to sustain and develop into a mutually fulfilling one in which she has a strong sense that he is her father and be able to be a mutually fulfilling one, as such a finding is against the weight of the evidence.
23.Erred in finding that the child would not be unduly troubled by a significant reduction in the frequency of contact or time spent with the Father, particularly given the likelihood that he will remain in Australia (no evidence of this).
24.Erred in finding that, unless permitted to relocate, there is a ‘real risk’ the Child’s emotional needs will be gradually and increasingly ‘unmet’ by the Mother.
25.Erred in failing to give sufficient weight to the evidence of Dr [B].
26.Erred in placing too much weight upon the issue of ‘communication’, such as it was at hearing, when allocating sole parental responsibility to the Mother.
27.Erred in placing too much weight upon the evidence of the Family Consultant that the Mother may have emotional difficulties if she remained in Australia which would affect her parenting of the Child.
28.Erred in finding that a Safety Order is an equivalent to an AVO without any evidence as to Safety Order’s (sic) from an authority in Ireland.
29.Erred in finding that the safety order was granted to the mother on the basis of an incident in the park.
30.Erred in making a determination about the safety order whilst it is still be fore the Irish courts of appeal.
31.Erred in finding that the access schedule in Ireland was over onerous on the mother.
32.Erred in making no adverse finding against the mother for the numerous breaches of Orders made by her.
33.Erred in finding that the father falsified testimony for perceived forensic advantage, and inferring from this that the father’s evidence should not be preferred.
34.Erred in using the fathers (sic) decisions during the ‘17’ day period as the sole basis to determine that he does not understand the emotional and psychological needs of the child.
The father added 12 additional grounds to his proposed Amended Notice of Appeal, which are grounds 5, 34, 37-47 inclusive. These are as follows:
5.Erred in not giving weight to the mother’s evidence in saying “the only thing she [the child] is at risk of is being pigeon-holed as a low socio-economic Aboriginal”.
35.Erred in finding that the father falsified testimony for perceived forensic advantage, and inferring from this that the father’s evidence should not be preferred.
37.Erred in making negative findings about the father’s character and honesty in giving evidence.
38. Erred to find that the father has a problem with alcohol.
39.Erred to find that the child had no negative effects from being away from the father for 5 months.
40.Erred to find that the mother has a reasonable likelihood to promote a relationship between the child and the father.
41.Erred in finding that the child’s emotional state is so closely intertwined with the mothers in the long-term.
42.Erred to finding that the deep vein thrombosis jeopardised the mother’s ability to remain in Australia, even whilst pregnant.
43.Erred to find that the father gave misleading evidence in the Irish proceedings.
44.Erred to find that the father’s evidence about the maternal grandfather remaining in Australia was unreliable.
45.Erred to prefer the evidence of [Ms S] despite her being disciplined by the Psychologists Registration Board for inappropriate behaviour.
46.Erred to not consider the impact of the Global Financial Crisis and the subsequent economic position of Ireland when determining the viability of each parent to support themselves and the child in Ireland.
47.Erred in not taking measures to ensure the mother complies with Australian orders from Ireland in light of the fact it took 2 full defended hearings under the Hague Convention for child abduction to have the child returned to Australia.
Discussion
Turning then to the grounds of appeal. In Bryant (supra) Kirby J said that a decision on a stay application should not become an occasion for a detailed analysis of the issues that will arise in the special leave application and, if granted, the appeal. His Honour noted that the evaluation of the prospects of success will necessarily involve a matter of judicial impression. That judicial impression, his Honour noted, does not predetermine one way or the other the substantive application. A similar approach is appropriate and adopted in consideration of a stay application pending an appeal to this Court’s Full Court.
It is the father’s application his is a strong appeal. By way of example, in submissions he particularly focussed upon the Court’s refusal of his adjournment application made at the start of the final stage of the hearing. Although this does not form a ground of appeal, as I understood his submission, this related to those grounds which challenge my findings the child would be able to achieve a positive appreciation and participate in her Aboriginal heritage and that her sense of Aboriginal identity should be strong. The father explained that since judgment was delivered he has approached elders of the J community and it would be his intention to adduce evidence on appeal which would challenge the findings on this matter.
The mother’s solicitor pointed out the father could have obtained this evidence prior to the hearing in July 2010. Reference was made to the detailed reasons given for refusal of the adjournment and in relation to this issue. The father agreed after judgment was reserved there was no application by him to reopen for the purpose of adducing evidence of the type which he says he would now seek to bring on appeal.
The father referred to ground 8 which related to the Court’s refusal to admit affidavits from his brother and sister served after his adjournment application failed. This was said to be particularly relevant to the Court’s findings about an incident which involved the father’s brother and was one of two incidents which the Court accepted came within the definition of “family violence”. The father indicated he would challenge the Court’s findings in relation to both matters and, if successful, this would directly influence the decision to give the mother sole parental responsibility. While it is correct as a consequence of my findings in relation to family violence I determined the presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility did not apply, I went on to consider nonetheless whether an order that the parties have equal shared parental responsibility would be in the child’s best interests. There follows approximately three pages of consideration of factors about why, even if the presumption applied, I was satisfied it was not in the child’s best interests. These later findings were not reliant upon matters which involve the father’s siblings.
The mother pointed out the Court’s findings about the father’s failure to comply with trial directions, including filing affidavits. The father conceded there was no error by the Court in relation to these findings about the extent of his non-compliance or his failure to seek to add to the list of witnesses to at least identify an intention by him to adduce evidence from his brother and sister. Nor does he challenge the accuracy of the findings in relation to the argument advanced on his behalf about why the Court would admit this evidence late.
I agree with the mother’s submissions these matters were traversed in my reasons and given the nature of appeals would be unlikely to attract appellate intervention.
In the mother’s solicitor’s submissions in relation to the merits of the appeal, reliance was placed on Lovell v Lovell (1950) 81 CLR 513 in relation to the functions of an appellate court on an appeal from a discretionary order and the onus which sits upon an appellant. Also, on Gronow v Gronow (1979) 144 CLR 513. The mother’s solicitor correctly identified that the grounds variously fell into challenges to the Court’s findings as to credibility, matters of weight and findings of fact. A discrete ground related to my decision on 3 June 2010 to refuse the father’s application that I disqualify myself. In relation to this matter, the mother’s solicitor submitted if the father considered he had a basis to appeal the disqualification decision it was incumbent upon him to do so promptly and not stand by until the final judgment to challenge that earlier decision. With respect, I agree. See Green & Knowles [2010] FamCAFC 248.
As a general proposition, the mother’s solicitor submitted there was evidence available for the Court’s findings in relation to all matters which came within the three groups of grounds of appeal. Reference was particularly made to ground 6 which concerned the findings about the father’s credit and the reasons therefore enumerated at paragraphs 213-220 of my reasons. It was pointed out a number of the new grounds sought to agitate issues which were not raised at the final hearing. The father agreed this was so.
In relation to grounds 2, 3 and 4, it was submitted issues about the child’s Aboriginal identity and associated matters comprise a significant component of the Court’s reasons. Also, that the father’s journey of self-discovery and embracing his Aboriginal heritage commenced when he was 19 years old and that the Court accepted he is a proud member of the J people. The point being, in essence, the orders provided for the child to have greater involvement with her Aboriginal heritage during her childhood than was the case for the father.
Reference was made ground 29 which alleged the Court erred in finding that a safety order is equivalent to an apprehended violence order. It was pointed out this was the evidence given by the father in his affidavit.
In relation to the findings of fact, it was the mother’s submission that even if it was demonstrated there may have been an erroneous finding, the factual findings impugned by the father were not such as would be likely to enliven appellate intervention.
On a reconsideration of my reasons although one could not conclude there is no merit in the father’s grounds of appeal as presently drafted they are relatively modest and a successful appeal is more unlikely than likely. When the grounds are considered in the context of my knowledge of the evidence and the analysis of those issues in my reasons, I am unable to find the appeal is based on substantial grounds.
The father is bona fide in his desire to overturn the decision and the appeal is not merely a delaying tactic. Nonetheless, it had been my hope and expectation the father would have filed an Application in an Appeal for expedition and taken steps to present as meritorious an application as possible to the Full Court for expedition before now. On 21 December 2010 I informed the parties there would be a sitting of the Full Court in Sydney in the week commencing 31 January 2011. I indicated I would be interested to see whether on the next occasion the father had taken necessary steps to see if his appeal could be included in that sitting. I indicated he would need to be able to demonstrate that he would be able to prosecute a prompt appeal and, in this regard, that he had taken steps to secure a transcript.
The father wrote a letter on 23 December 2010 to the Court seeking expedition and in his Notice of Appeal at Part F he applied for expedition. He did not file an Application in an Appeal nor an affidavit of the evidence upon which he would rely in support of expedition. The father does not have a grant of legal aid for an appeal. He had spoken to the transcript providers and was informed a transcript would cost approximately $12,000.00. The father has not applied for a transcript and said that if he is refused legal aid for an appeal he would need to consider an application for a commercial loan.
The father pointed out the Eastern Appeals Registrar was on leave during the period of the adjournment and he was unaware he needed to file an Application in an Appeal and supporting affidavit. Of course, when the Court raised these matters with the father on the last occasion, he was legally represented and, one would have anticipated, he would have immediately sought advice from his lawyers about how to proceed. This it would appear he failed to do.
Notwithstanding the father’s protestations that he could be relied upon to pursue the expeditious determination of his appeal, the mother submitted the father had a poor track record in relation to compliance with orders and procedural directions. In the proceedings at first instance, the mother pointed out that in a fairly serious way the father failed to abide directions aimed at the timely disposition of the parenting application. In addition, she highlighted how the father had failed to honour promises he made to the courts in Ireland about steps he would take to moderate some of the hardships to her if a return order was made and to co-operate with the expeditious disposition of parenting proceedings in this country upon her return. Also, that his non-compliance extended beyond procedural matters and he had failed to comply with orders in relation to parenting matters made in Ireland and Australia.
I agree these matters weigh strongly against the Court being satisfied that notwithstanding the father’s promise to prosecute his appeal expeditiously. I am strongly satisfied it is far from certain he could be relied upon to do all which is necessary to achieve this outcome. In reaching this view I have not overlooked the difficulties which the father said he experienced filing documents during the Christmas period and that from 23 December 2010 he has been unrepresented. The point is, however, even when the father has been represented and has said he would comply with various orders and directions, he has failed to do so.
Thus, it is now apparent, the father’s appeal will not be ready for consideration in the 31 January 2011 sittings of the Full Court and I have real reservations the matter will be disposed of other than in the normal course.
Neither the father nor mother had enquired of the Appeals Registry about when, unless it was expedited, the father’s appeal would be called on for hearing. I indicated to the parties that in an unrelated matter which I dealt with in December 2010, an experienced practitioner informed the Court the Appeals Registry had advised it would be approximately 12 months for an appeal filed some weeks before this matter, would be heard. This would suggest that the volume of Court business which the Full Court is required to undertake is such that there may be many months before the father’s appeal would be determined. This is in accordance with my understanding of the current situation with appeal listings.
It is appropriate, therefore, to consider the child’s circumstances and whether this is satisfactory. In my reasons dated 21 December 2010 I said that the child’s and mother’s circumstances were unsatisfactory. The situation was and continues to be that the mother shares a room with the child at the home of her friend, Ms O. She has her car and otherwise she and the child are living out of suitcases. While this is a situation to which the mother has contributed, so too has the father by his failure to respond to the mother’s solicitors letter dated 9 December 2010. In my view the subject matter of that letter was so important anything less than almost an immediate reply was inadequate. On the adjourned hearing the father said he presumed his solicitors would have responded to this letter. This explanation is slightly different to that communicated by his counsel on 21 December 2010. Even if the father’s statement to me on 10 January 2011 is correct, this issue was too important for mere assumption. It was incumbent on the father to instruct his solicitors to immediately communicate his opposition to the child’s removal and inform the mother of his intention to appeal or alternatively to personally communicate this to her. Had he done so the mother would have been able to reconsider her position before she moved out of her rented property and sold her belongings.
The mother states that since leaving her rented home, the child has become confused and upset. Since living at the O’s home, the child has become more nervous, and on occasions cries and screams when the mother leaves, even if it is just to go to the bathroom.
Even before the mother gave up her rental accommodation, I described her financial position in my reasons at paragraph 279, and said she was in a very vulnerable financial position.
Ms O resides with her husband and their two children. They are a single income family and she said their offer of accommodation was only intended to be for a short period, namely from when the mother ended her tenancy and departed for Ireland on 23 December 2010. It is her belief, she and her husband “will be unable to continue to offer our support to [the mother] indefinitely because of our own financial circumstances”. I accept the mother’s accommodation arrangements are tenuous and unsatisfactory.
It is clear the mother’s health has deteriorated since 21 December 2010. Dr H has increased the mother’s antidepressant medication twice, the first time from 20mg to 40mg per day and the second time from 40mg to 60mg per day. That is, a three-fold increase in the mother’s dosage of antidepressant medication since 21 December 2010. The mother’s solicitor referred to findings made at paragraphs 543-545 of my reasons in the substantive matter. These related to the deterioration in the mother’s emotional and psychological wellbeing prior to 8 December 2010. There I discussed the cumulative effect on the mother of ongoing stress and anxiety through her dealings with the father and personal isolation, which therapy and medication had been unable to alleviate.
The circumstances which have developed since delivery of judgment in the substantive matter, in particular the mother’s belief in the face of the father’s failure to reply to her solicitor’s letter of 9 December 2010 that he did not oppose her departure with the child on 23 December 2010, render unsurprising that a person who the Court determined was already struggling emotionally, is now as distressed as the evidence established the mother is.
Because the child is young and was found to be reliant upon the mother to have her psychological and emotional needs met, it is also not surprising with the deterioration the mother’s emotional and psychological wellbeing that the child also appears to be struggling.
It is the father’s contention the Court would determine the child’s circumstances are satisfactory. He does not challenge the mother’s evidence about her distress and the effect of the ongoing litigation upon her. As I understood his submission, aspects of her evidence resonate with his own experience particularly whilst in Ireland for the Abduction Convention proceedings. However, he points out in his interim application that the child live with him in early 2010, the Court rejected his argument that the mother’s, in effect, vulnerable emotional health, depression and her and the child living in temporary accommodation with Ms O, were unsatisfactory. Also, that for a time before the parties met, the mother was happy in Australia and in 2009, whilst she was in Ireland, the mother required mood stabilising medication and saw a psychologist. In essence, his point being, the mother and child’s situation now are similar to those which existed in early 2010 and thereafter and could not evaluated as being unsatisfactory. This submission fails to address the cumulative effect of events after the 2010 interim orders were made.
The father also points out that he is willing to give the mother a selection of furniture and kitchen equipment for her use. He correctly pointed out he had previously provided a selection of household items and some furniture, when the mother returned to Australia in early 2010. However, the mother no longer has any household goods and, notwithstanding the father’s offer, the mother would still be without, for example, a refrigerator, washing machine and numerous other household items which would be required to make her and the child anything near comfortable. The mother has $155.94 in the bank and a credit card debt of $4,941.42. She has yet to have her rental bond reimbursed and has no other assets. She has very little capacity to re-establish an adequate home environment.
Although the father said he was confident his mother would direct her rental bond refund to the mother, there was no evidence from the paternal grandmother she would do this. Thus, notwithstanding the father’s offers the mother and child would remain in a very difficult situation.
The father correctly pointed out that the hardship which the mother may endure if the stay is granted must be weighed up against the hardship to him if it is refused. He emphasised to deny him a stay, in the event of a successful appeal, would render his appeal nugatory or, in effect, make it impossible or impractical to restore the situation. The situation being, to secure the child’s return to Australia. He relied upon the mother’s unsuccessful defence of his Abduction Convention application, as well as her unsuccessful appeal against the return order. He pointed out the parties had engaged in strongly contested litigation in Ireland and Australia which has continued for the best part of two years. Reference was made to the mother’s failure to fully comply with access orders in the later part of 2009. According to the father, he had been informed by an unidentified source, that Australia would not request a child’s return pursuant to the Abduction Convention twice. As to this latter point, the father provided no evidence. However, even if he is correct, this would not stand in the father’s way of himself requesting the child’s return reliant upon the Abduction Convention. The father would, as he has now, have a right of custody and her withholding would be a wrongful retention.
The mother referred to the Court’s findings which accepted she was likely to comply with orders, her reasons for noncompliance with orders in late 2009, compliance with orders throughout 2010 and emphasised that reliance could be placed upon the Abduction Convention to secure the child’s return to Australia in the event this was ordered. The mother said she would return the child to Australia if ordered and conceded that if the result of the father’s appeal was that ultimately an order was made for the child to return to Australia and, she failed to do this, prima facie, this would be a wrongful retention within the meaning of the Abduction Convention.
By way of additional security, the mother offered her only valuable asset, which is her car. Although I do not have evidence of its current value, at paragraph 268 I identified that the mother’s father paid $10,500.00 for it in early 2010. While in the subsequent 12 months the car may have deteriorated in value, there is no evidence it has been damaged and it is reasonable to infer on sale the car would be worth no less than half its purchase price. While I do not consider it likely the mother would refuse to abide the Court’s orders to return the child to Australia, this sum would provide extra motivation for compliance and, if released to the father in the face of non-compliance, comprise a modest but not insignificant contribution to costs he might incur in securing the child’s return.
I contemplated whether to require the mother’s written undertaking she would return the child to Australia in the event she was ordered to do so. However, in the face of her concession she would return the child which is recorded in these reasons and the unenforceable nature of such an undertaking, I decided against doing so.
On balance, I am not satisfied that permitting the mother to remove the child from Australia would render a successful appeal nugatory or make it impossible or impractical to secure the child’s return to Australia. While I accept there is a possibility this may involve further litigation and delay, I am satisfied the child would be returned to Australia.
The father made strong submissions about the potential effect on the child of changing her circumstances. He emphasised she has continuously lived in Australia for the last 12 months. Here she has access to him and paternal relatives to a degree which would not be available to her in Ireland.
The mother pointed out that for the preceding year the child lived in Ireland with her and her maternal grandparents. She would thus, be returning to a place and people familiar to her and, to a situation which the Court was satisfied was consistent with her best interests. Reference was made by the mother to K & B (2006) 37 Fam LR 1 where the Full Court held that the interests of children would not be promoted by an inflexible requirement or presumption in every stay application to maintain the status quo prior to the making of orders the subject of the stay application and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders. Friscioni (supra) was also relevant, that case being an unsuccessful appeal against the trial Judge’s refusal to grant a stay of orders which enabled the mother to relocate with the child from Australia to Czechoslovakia before the father’s appeal was heard.
In my long judgment I explained my reasons for determining that it was in the child’s best interests to live with the mother and relocate to Ireland. Changes to the child’s routine, particularly the amount of time she could spend with the father and paternal relatives, were discussed at length. I also discussed the impact on the child’s relationship with the father when he returned to Australia and there was no face to face contact until he returned to Ireland in June 2009, as well as the longer period of time during which the child did not have contact with paternal relatives. These relationships were restored or developed after the child returned to Australia.
Provision is made in the orders for the father to spend time with the child in Ireland which, in the period between the child’s departure and the hearing of his appeal, he could avail himself. The father is a teacher and free to travel without jeopardising his employment during school holidays. In fulltime employment, he earns $70,000.00 per annum. Thus, the father could spend time with the child in Ireland pending the determination of his appeal.
The father has promptly presented his appeal and in this regard there is no issue of delay.
When these matters are all considered and weighed it is my view that the father’s stay application should be refused. In coming to this view I appreciate that there are factors which weigh in favour of it being granted. These include that the father is bona fide, there is some merit in his appeal and there would be a significant change to the child’s circumstances. I also accept that others might have a different impression of the merits of the father’s appeal and view these as having greater merit than I do. I also accept that issues arise in securing the return of the child if ultimately an order is made for this to occur.
On the other hand the particularly significant factors which weigh in favour of refusal of a stay include I am strongly satisfied that even if the hearing of the father’s appeal were expedited he cannot be relied upon to do all which is required of him to ensure an expedited hearing occurred. His history of non-compliance with his promises to courts, procedural and parenting orders weighs significantly against him in this regard. I am particularly concerned about the unsatisfactory situation in which the child and mother now find themselves. Although this is something to which the mother has contributed so too has the father. The threefold increase in the mother’s medication because of the deterioration in her emotional and psychological wellbeing is another important factor. Because of the child’s reliance upon the mother this directly affects the child, and as I said earlier it is not surprising there is evidence the child is struggling.
I am strongly satisfied it is important and clearly in the child’s best interests that the best interests’ outcome ordered on 8 December 2010 is promptly implemented.
Thus, in the exercise of my discretion the father’s stay application will be dismissed. The orders I made on 21 December 2010 were time limited and without further order by me some will expire today and others tomorrow. Orders will also be made which address the mother’s offer of security for her car. Although I contemplated the father might be appointed trustee for its sale, he did not want this responsibility. Accordingly the mother will be required to nominate a suitable person within 24 hours.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 11 January 2011.
Associate:
Date: 11 January 2011
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