SRS & KLS & Child Representative

[2005] FamCA 700

[2005] FamCA 700

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA34 of 2005
AT SYDNEY  File No CAF1785 of 2000

BETWEEN:

SRS
Appellant Father
- and -
KLS
Respondent Mother
and
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & MAY JJ
DATE OF HEARING:                 9 & 10 June 2005
DATE OF JUDGMENT:             29 July 2005

APPEARANCES:  The Appellant Father in person.

Mr Gill of Counsel, instructed by Legal Aid office (ACT), GPO Box 512, Canberra, ACT 2601, appeared on behalf of the Respondent Mother.

Mr Hubert of Counsel, instructed by Capon & Hubert, Barristers, and Solicitors, PO Box 458, Mawson, ACT 2607 appeared on behalf of the Child Representative.

SRS & KLS

EA34 of 2004
CORAM:  Kay, Holden and May JJ
DATE OF HEARING:    9 & 10 June 2005
DATE OF JUDGMENT: 29 July 2005

Catchwords: PRACTICE and PROCEDURE - APPEALS – STAY OF ORDERS - CONTACT - the appellant father sought to appeal the refusal to stay an order that reduced his contact from 11 nights out of 28 to 6 nights out of 28 pending the hearing of a substantive appeal against the orders – whilst the stay ought to have been granted the effect of the refusal of the stay meant that a new regime has now been created - any potentially temporary further change might be unsettling - CSN v JBN (1998) FLC 92-833 followed - appeal dismissed.

1. This judgment concerns an appeal against the dismissal of an application by the appellant seeking a stay of orders pronounced on 11 March 2005 concerning a child B born 29 March 1999.

1. The orders made by the trial Judge were supported by the Child Representative who did not support the father's application for a stay of the orders.

1. On 13 December 2001 Faulks J made orders by consent that provided that the child was to live with his father

“(a)from 12 noon Thursday to 12 noon the following Wednesday on one occasion each four weeks commencing 15 November 2001 and every four weeks thereafter;

(b)from 12 noon Thursday until 12 noon the following Tuesday on one occasion each four weeks commencing 29 October 2001 and every four weeks thereafter;

and with his mother at all other times.”

The orders also made provision for the sharing of school holidays, birthdays and other special occasions. 

1. Subject to some minor variations that were not relevant for present purposes, those orders remained in operation until they were discharged by orders made by Collier J on 11 March 2005.  Those orders provided that B was to live with his mother and that the father was to have contact during school terms each alternate weekend from immediately after school on Friday until the commencement of school on the next succeeding Monday, extending to Tuesday morning in the case of a long weekend.  They also made provision for the sharing of school holidays and other special events.

1. The proceedings before Collier J were heard from 9 to 20 February 2004.  At the conclusion of the evidence each party was directed to file written submissions and some extensions of time were given concerning those submissions.  The last of the submissions appears to have reached Collier J by July 2004.  Judgment was delivered on 11 March 2005.

1. In the proceedings before Collier J the mother sought orders that B reside with her and that the father have no contact with the child or in the alternative the contact be from after school Friday until 5.00pm Sunday each third weekend.  The father sought a discharge of the mother’s application and the continuation of the existing arrangements that saw B residing with him for six consecutive nights in one fortnight and for five consecutive nights in the alternate fortnight.  Alternatively the father sought the child reside with him and that contact be “only as determined by this Honourable Court”.

1. The children’s representative had submitted that if the Court was of the view there should be contact between the father and B then that contact should be alternate weekends from 4.00pm Friday until the commencement of school on Monday together with half the school holidays and special occasions.

1. The proceedings before Collier J also concerned an application by the father that another child of the mother, A born 18 August 1994, should reside with him.  Amongst the orders made on 11 March 2005, was an order dismissing that application.

1. On 31 March 2005 the appellant lodged a Notice of Appeal containing some 35 grounds.  In the Notice of Appeal he sought “that the orders and all findings of fact by Collier J on 11 February 2005 be set aside”.  He also sought the matter be remitted for rehearing before a single judge other than Collier J. 

1. On 5 April 2005 he filed an application seeking a stay of Collier J’s orders of 11 March 2005 and in the course of the submissions that he made to Collier J in support of the stay said:

“…If I’m successful in my appeal it will stay the way it is, I’m not looking for a change, I’m looking for consistency (indistinct).  I’m not looking for sole custody, and that was explained a number of times during the trial and just to conclude, your Honour, all I’m looking for is my 11 days and my half school holidays…That’s what I’m after, your Honour.  I’m after my 11 days.  By maintaining, giving me the stay, maintaining the status quo, even if I’m successful or when I’m successful at the appeal it still stays the same…”

1. In support of his application for a stay the father emphasised that for much of the child’s life he had spent 11 days in each 28 day period in his father’s care.  He further emphasised that the orders provided that he was to share equally the school holidays and that the effect of granting a stay of the orders would mean the continuation of a well-settled arrangement for the child.  If no stay was granted and the appeal was to be successful then the change in the child’s routine could be extremely unsettling and traumatic for him.

1. In refusing the stay Collier J delivered short reasons for judgment.  His Honour noted that prior to his orders being made the orders in force effectively were for a shared parenting arrangement.  He appreciated that the stay would continue the orders that were in existence beforehand but then said:

“7…The difficulty I have is this.  I have made findings that are significantly against the father and are very, very critical of the influence and effect of spending more time than I have ordered with [B] may have upon [B].  They are findings involving acts which are, as I think I have described them in the judgment, bizarre and unusual.

8To my mind it would be easy to grant the stay saying that things might as well be left as they are until the Full Court examines the matter and, if necessary and if appropriate, overturn both my finding and my orders.  However, having regard to the findings that I have made, I am of the view that the best interests of the child, which to my mind remain the paramount consideration, and having full regard to the principles in Clemett [(1981) FLC 91-013], CSN v JBN [(1998) FLC 92-833] and even for that matter Sanders [(1976) 26 FLR 474], it is not appropriate that I grant the stay. That means the orders I have made come into force and effect as soon as possible.”

1. The judgment in Sanders v Sanders concerned a baby of less than three months of age.  The child was in the mother’s care until 25 June 1976 when an order was made that the father have custody of the child.  A stay application was refused on 29 June and the Full Court entertained an appeal on 30 June.  Evatt CJ which whom Marshall and Watson JJ concurred said:

“In custody cases, whether they arise at first instance or on appeal, in my view it is not desirable to disturb the status quo pending the determination of the matter unless there is something about that status quo which might be harmful to the child…In this case there is nothing to suggest that any harm would have resulted to the child by staying with the mother, and it is not suggested she would not have been able to give it the care which it needs.”

1. The decision in Clemett and Clemett concerned an appeal against the refusal of the trial judge to grant a stay following a judgment in which he granted custody of a child to the wife notwithstanding that the child had been in the care and control of the father for a considerable period and was “reasonably happy and contented and had been properly looked after by the father”.  In the principal judgment delivered by Nygh J on behalf of the Full Court his Honour said:

“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…”

1. Their Honours then reversed the decision of the trial judge and granted a stay pending the outcome of the substantial appeal.

1. In the third of the cases referred to by Collier J, CSN v JBN (1998) FLC 92-833 the Full Court examined the refusal of a trial judge to grant a stay of orders which had the effect of transferring the care of an 18 month old child from its father to its mother. The Full Court cited the passages from Sanders and Clemett referred to above and expressed the view that in the case under consideration where the evidence indicated that at least in the short term the child was being adequately and appropriately cared for by the husband it would have been appropriate to have granted a stay.  That was especially so because the effect of not granting a stay could have led to a situation where the child moved from the husband’s house to the wife’s house pursuant to the orders of the trial judge and was then placed back in the care of the husband pursuant to the orders of the Full Court were the appeal to be successful. 

1. In CSN v JBN the Full Court indicated that a stay should have been granted by the trial judge but that having regard to the passage of time since the judgment was delivered and given that the appeal had now been fully argued it would be inappropriate for the Full Court to allow the appeal in respect of the stay whilst it reserved the judgment in respect of the principle appeal.  The Court said:

“Events have overtaken proceedings and we have no undisputed evidence before us as to the present circumstances of the child which could lead us to conclude that the welfare of the child would now require the child to be placed once again in the husband’s care pending the delivery of the judgment in this matter.”

1. In the matter presently under consideration we face the same dilemma.  The principle appeal has now been fully argued.  Whilst the issues canvassed before the trial Judge were wide and far ranging and whilst the possible outcomes at the trial might have seen either parent having no contact with the child, the issues that have crystallized for the purposes of this appeal are far narrower.  Essentially we are asked to determine whether or not the Full Court should interfere with an order that provides for the father to have contact with his son for three nights every fortnight and reinstate an order which would see the contact being a total of 11 nights in 28. 

1. Whilst there are other subsidiary issues raised by the appeal, that matter lies at the core of the appeal.  It seems to us that the matters that motivated the trial Judge to conclude that it was inappropriate for B to reside with his father, especially that the father’s narcissistic personality would cause him to foster in his son a set of values that were not proper values, could not have been seen as so pressing to demand an immediate and significant change to the amount of exposure the child was having to his father particularly when seen in the light of a judgment that had been reserved for some 13 months.

1. All that having been said, however, the effect of the refusal of the stay has meant that the new regime has now been created.  The situation has been explained to the child.  We have no evidence as to what effect it would have on the child were we to resurrect the previous situation.  We would hope to be in a position reasonably promptly to deliver the substantive judgment in the matter.  In all of the circumstances we are of the view that the appeal against the stay should now be refused.

1. The formal order of the Court is that the appeal filed 6 April 2005 is dismissed.

I certify that the 21 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate