Spalding & Barbaro (No 6)
[2023] FedCFamC1F 846
•6 October 2023
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Spalding & Barbaro (No 6) [2023] FedCFamC1F 846
File number(s): BRC 6176 of 2021 Judgment of: HOGAN J Date of judgment: 6 October 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – STAY – where the father seeks a stay of parenting orders pending the hearing and finalisation of an appeal – where the stay is not in the best interests of the children – where the application is dismissed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Clemett and Clemett (1981) FLC 91-013; [1980] FamCA 90
Friscioni & Friscioni [2009] FamCAFC 43
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackson & Balen [2009] FamCAFC 131
Trahn & Long (No. 2) [2008] FamCAFC 194
Division: First Instance Number of paragraphs: 25 Date of hearing: 6 October 2023 Place: Brisbane Counsel for the Applicant: Ms Fraser Solicitor for the Applicant: Hickey Lawyers Counsel for the Respondent: Mr Dodd Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
BRC 6176 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SPALDING
Applicant
AND: MS BARBARO
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
6 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 25 September 2023, and sealed 27 September 2023, is dismissed.
IT IS NOTED THAT:
A.Having informed the parties of its intention to deal with the Respondent’s application for an order for the costs of and incidental to the application for a stay when the application for costs associated with the trial which culminated in the Order made on 25 August 2023 is determined, the Court received submissions on behalf of each of the parties about the issue of an order for the costs of and incidental to the application for a stay.
B.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
C.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spalding & Barbaro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
Following many days of trial of the parenting proceedings between these parents, I made orders (the August 2023 orders) and delivered extensive Reasons for Judgment (the August 2023 Reasons) on 25 August 2023.
The central issues in the trial related to the risk posed to the children:
(a)D, born 2008;
(b)E, born 2009;
(c)B, born 2012; and
(d)C, born 2012,
of ongoing exposure to the parental conflict and the consequences for them of the same.
Before the August 2023 order was made, E, B and C had lived with their parents in an equal‑time week-about parenting regime in accordance with orders made by Carew J on 23 May 2018. Whilst D had also lived in that regime after the May 2018 order was made, as the August 2023 Reasons make clear, he had lived predominantly with the mother since about September 2020 and exclusively with her since February 2021.
For the reasons expressed in the August 2023 Reasons in some detail, I determined that it was in the children’s best interests that D remain living with the mother and that E, B and C cease living in the week-about parenting regime and that none of the children should spend any time, or have any communication, with the father.
Such conclusions and the orders which rested on them were ultimately urged by the mother and the Independent Children's Lawyer at the trial, whereas the father’s position then was that orders should be made for all of the children to live with him and, after an initial moratorium over their time with the mother, followed by a potentially indefinite period of supervised time with her, spend time with the mother on alternate weekends.
That is, no party at the trial contended for a continuation of the equal-time week-about parenting regime which had been in place since the May 2018 order was made and all parties contended that it was not in any of the children’s best interests for them to continue to spend time with their parents in accordance with the same.
The evidence establishes that the August 2023 order has been implemented. The consequence for the children is that, since 25 August 2023, E, B and C have not spent any time, or had any communication, with the father.[1]
[1]As the Reasons for Judgment delivered on 25 August 2023 make clear, D has not spent time with the father or communicated with him for a relatively significant period of time.
The evidence also establishes that the August 2023 order has been explained to the children by the mother and, insofar as E, C and B are concerned, Ms AC, who authored the Family Report which was part of the evidence at the trial. E has also spoken with the Independent Children's Lawyer about the August 2023 order. Consequently, all of the children have been told that they will be living with the mother and not spending time, or having communication, with the father.
THE FATHER’S APPLICATION FOR A STAY OF THE AUGUST 2023 ORDERS
On 25 September 2023, the father filed an application for a stay of the operation of the August 2023 order.[2] He had previously filed a Notice of Appeal on 22 September 2023, by which he challenges the August 2023 order.
[2] This was sealed on 27 September 2023.
Whilst, as I understand it, the father has until 20 October 2023 to file a draft index to the appeal book, such date is one of limitation; there is nothing to prevent the father from filing a draft index prior to that date, following which, as soon as practicable after it is filed, the Appeal Judicial Registrar must fix a date for a procedural hearing for the appeal and give the parties written notice of the same.[3]
[3] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 13.16.
There is no evidence about how long it will take for the appeal to be heard. There is no evidence to suggest that the father has taken any steps to seek expedition of the hearing of his appeal.
The mother opposes the grant of a stay of the operation of the August 2023 order pending the determination of the father’s appeal.
Principles
The determination of an application for the stay of the operation of an order pending appeal itself involves the exercise of discretion. The principles relevant to the exercise of that discretion in determining such an application are well-known and include that:
(a)whilst the onus to establish a proper basis for the stay is on the applicant for the stay, it is not necessary for an applicant to demonstrate any “special” or “exceptional” circumstances; and
(b)a person who has obtained a judgment is entitled to the benefit of that judgment; and
(c)a person who has obtained a judgment is entitled to presume the judgment is correct; and
(d)the mere filing of an appeal is insufficient to grant a stay; and
(e)the bona fides of the applicant should be considered; and
(f)a stay may be granted on terms that are fair to all parties – which may involve the court weighing the balance of convenience and the competing rights of the parties; and
(g)the court should weigh the risk that an appeal may be rendered nugatory if a stay is not granted and this is a substantial factor in determining whether it will be appropriate to grant a stay; and
(h)there should be some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case; and
(i)it is desirable to limit the frequency of any change in children’s living arrangements; and
(j)the court should consider the period of time within which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
(k)the best interests of the children the subject of the proceedings are a significant consideration. [4]
[4]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No. 2) [2008] FamCAFC 194; Clemett and Clemett (1981) FLC 91-013; Jackson & Balen (2009) FamCAFC 131 at paragraph 28; Friscioni & Friscioni [2009] FamCAFC 43 at [54]-[57].
Rule 13.12(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision. There is no such applicable legislative provision.
It was properly conceded by Counsel for the father that the mother is entitled to the benefit of the August 2023 judgment and that she is entitled to presume that it is correct. I accept the submission made by Counsel for the mother to the effect that the children are also entitled to the benefit of the August 2023 judgment and to presume that it is correct – particularly, it seems to me, where the consequences for them of the August 2023 order have been explained to them and they are now living in the parenting regime imposed by that order.
As already noted, the father’s position at the trial was that the equal-time week-about parenting regime imposed by the May 2018 order was a parenting regime that was not in the children’s best interests. Given this, I am not persuaded that the balance of convenience favours the making of an order staying the operation of the August 2023 order pending the determination of the father’s appeal, especially when weighed against the competing rights of the mother as the party entitled to the benefit of the August 2023 order.
Given that the August 2023 order has been implemented, I am not persuaded that failing to grant a stay of the operation of the order now will render the father’s appeal nugatory or that there remains a real risk it will not be possible for the father, if successful on his appeal, to be restored substantially to his former position. The children’s parenting regime has already been changed; whether they will be required in the future to deal with a further change – namely, a reversion to the week-about parenting regime that the father said at trial was not one that was in their best interests – will depend on whether the father’s appeal succeeds.
Given that the August 2023 order has been put into effect and that the children have had it explained to them, I accept the submissions made by Counsel for the mother that to make an order now which stayed the operation of the August 2023 order would render the benefit of the same to E, B and C nugatory; it would also require them to adapt to another change to their living arrangements and would inevitably involve them having to be told that what they have recently been told will be their parenting regime (namely, living with the mother and spending no time, and having no communication, with the father) will not now be that and they will return to living in a week-about parenting regime – although there may be a further change and a reversion to the existing regime of living with the mother and spending no time and having no communication with the father if the father’s appeal is unsuccessful. I am simply unpersuaded that such a consequence could sensibly be seen as being in the children’s best interests, particularly noting the desirability of limiting the frequency of any changes in their living arrangements.
I accept the submission made by Counsel for the mother that there is no evidentiary basis for the assertion made by Counsel for the father that E, B and C will be at risk of suffering harm if an order staying the operation of the August 2023 order is not made. I also note that any assessment of the asserted risk to those children needs to take into account that, even if the operation of the August 2023 order was stayed pending the determination of the father’s appeal and they returned to living in the parenting regime which existed before the August 2023 order was made, E, B and C would then live with the mother and D for every second week. Given this, the assertion of risk of harm does not persuade me to exercise the discretion in favour of granting a stay of the operation of the August 2023 order pending the determination of the father’s appeal against the same.
The Notice of Appeal filed on behalf of the father contains two grounds of appeal:
(a)Ground 1 – disproportionate weight was placed on the views of the children in that significant weight was placed on D’s views but insufficient weight was placed on the views of the other children; and
(a)Ground 2 – the decision was unreasonable and unjust in circumstances where there was an established status quo parenting arrangement of equal time since 2013.
The Notice of Appeal does not assert error in the making of the findings of fact that were made and, therefore, there is no challenge to the same.
Insofar as the father’s appeal seeks to challenge the exercise of the broad discretion afforded to judges at first instance, it confronts the principles outlined in House v The King.[5] Insofar as the father’s appeal may be regarded as asserting that, because of the existence of the long-standing equal-time parenting regime, the decision to make the August 2023 order in the terms made was plainly wrong, the August 2023 Reasons speak for themselves.
[5] (1936) 55 CLR 499.
Having regard to the grounds of appeal and the extensive August 2023 Reasons, the submission by Counsel for the mother that neither ground of appeal has the remotest possibility of success is understandable. However, for the purpose of considering this application for a stay of the operation of the August 2023 order pending the determination of the appeal against the same, I am prepared to accept the submission by Counsel for the father that his appeal is arguable. I also can see no reason to doubt that the father genuinely wishes to prevent the children living only with the mother and spending no time, and having no communication, with him. It would be hard to say, therefore, that his bona fides in bringing the appeal are suspect.
Finally, insofar as the significant consideration of best interests of the children is concerned, it was my judgment, for the reasons expressed in significant detail in the extensive August 2023 Reasons, that the children’s best interests would be served by the orders I made. Such conclusion is a significant factor which weighs against the grant of an order staying the operation of the August 2023 order. A further significant factor, now that the August 2023 order has been implemented and explained to the children, which also weighs against the grant of a stay is the likely impact on them of having to be told that there will, in fact, be further disruption to their living arrangements. In addition, I also accept the submission by Counsel for the mother that the result of staying the operation of the August 2023 order would be to return E, B and C to the identified conflict from which that order removed them. Such a consequence would not, in my view, be in the children’s best interests. I consider that staying the operation of the August 2023 order would be contrary to the children’s best interests.
For the reasons expressed, I am not persuaded that the father has discharged the onus of establishing a proper basis for the stay of the operation of the August 2023 order. Instead, I consider that the appropriate exercise of the discretion is to permit the mother and the children to have the benefit of the August 2023 order. Consequently, I decline to make an order staying the operation of the August 2023 order pending the determination of the father’s appeal and I dismiss the Application in a Proceeding by which such order was sought.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 6 October 2023
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