Ss and AH (No. 2)

[2009] FamCA 176

FAMILY COURT OF AUSTRALIA

SS & AH (NO. 2) [2009] FamCA 176

FAMILY LAW – STAY – Stay of orders pending Appeal – Special circumstances for stay – Relevant factors to be considered for stay – Expressed wishes of the Child not to see the Mother

FAMILY LAW – CHILDREN – Appointment of Family Consultant to explain orders to children – Not opposed

Kelly & Kelly  (1981) FLC 91017
Carline & Carline (1977) FLC 90320
K & B (2006) FLC 93288

APPLICANT: Ms SS

RESPONDENT: Mr AH

FILE NUMBER: BRF 1070 Of 1999

DATE DELIVERED: 26 February 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 8 December 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The Applicant Mother appeared on her own behalf

SOLICITOR FOR THE RESPONDENT: The Respondent Father appeared on his own behalf

Orders

IT IS ORDERED THAT:

1. The Mother’s application for a stay of the Orders dated 29 and 30 September 2008 is dismissed.

2. The Father is to present the children to a Family Consultant at a date and place to be determined by the Regional Co-ordinator of the Court’s Dispute Resolution Service, to have a Family Consultant explain to the children their rights and entitlements pursuant to the orders made by this Court on
   29 September and 30 September 2008.

Notation:

In the event the Family Consultant wishes to consult with the Judge to confirm the

intent of the orders, permission is given to do so.

IT IS NOTED that publication of this judgment under the pseudonym SS & AH is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1070/1999

MS SS

Applicant

And

MR AH

Respondent

REASONS FOR JUDGMENT

1. On 29 September and 30 September last year for reasons I gave at the time I made interim orders in this matter.  The effect of the orders was to grant the Father sole parental responsibility for the children the subject of the proceedings.  Further orders issued suspending paragraphs 3, 4, 5, 6, 7, 9 and 14 of the orders of Buckley J of 10 June 2005.

2. The practical effect of these orders was to suspend the time the Mother spends with her 11 year old daughter.  The Mother has not had physical time with her son for in excess of two years.

3. From those decisions the Mother has now appealed (refer appeals NA94/08 and NA95/08).  Copies of the appeal documents together with my reasons have been annexed to the Mother’s affidavit sworn on 2 December 2008.

4. On 3 December 2008 the Mother filed an Application in Form 2 seeking a stay of the bulk of the orders made on 29 September and 30 September 2008.  She does not appear to have appealed the orders for the appointment of an Independent Children’s Lawyer.  An Independent Children’s Lawyer has now been appointed.

5. In her latest application, the Mother seeks orders in the following terms:

   “1. That the orders of Judge Barry of 29/09/08 and 30/09/08 be stayed, as an Appeal has been lodged and Pre-Argument Statement filed.

   2. That no further directions etc. are made with regards to the hearing of this matter until the Appeal decisions have been made.

   3. That [Mr C] urgently arrange to meet with my Children, in order to fully explain the orders to them, if this stay is not granted.

   4. That both [J] and [K] be placed in the interim care of the Mother and the Father have supervised contact.

   5. That if Judge Barry will not grant (4), the orders of Judge Buckley of 10/06/05 be fully re-instated.

   6. That the father be expressly prohibited from attending at or collecting either child from school in the children’s contact days with the Mother.

   7. That [Mr C] draw up and provide to the Court and each party, a Contact calendar for 2009, which each party must adhere to.

   8. That the Appeal be expedited in the best interests of the Children, in order to prevent further damage to them.

   9. That an order be issued to the effect that […] College provide to the parties, within 7 days of written request, copies of all test results and assessments and any other information they may request, in writing, pertaining to the children.

   10. That an independent educational assessment of [J] be conducted by an experienced, competent professional.”

6. The application for a stay came before the Court on 8 December 2008.  Neither party was legally represented.  Ms McArdle of the Legal Aid Office appeared amicus curia.  The reason for this was the orders of 29 September contained a recommendation for the children to be independently represented.  Because of delays in processing the large volume of material, Legal Aid Queensland had not to that point in time had an opportunity to make a determination whether to fund such representation.

7. Ms McArdle noted the decision may still be pending for some time but as a matter of courtesy she elected to appear to inform the Court as to these matters.

8. On 3 December 2008, in conjunction with her application, the Mother filed the affidavit sworn on 2 December 2008.  There was a further affidavit sworn
   7 December 2008, filed by leave on the day of the hearing that annexes what appears to be a series of MSN and email messages from K to her Mother.

Principles to be Applied In applications for a stay of orders pending appeal

1. In the marriage of Kelly (1981) FLC 91017 at page 76015, Fogarty J stated a stay is not to be granted as a matter of course and that appropriate or special circumstances need to be shown before a stay should be granted.  In the 1977 decision of Carlin & Carlin(1977) FLC 90320, Watson SJ held relevant factors to be taken into account in determining whether a stay application should be granted included:

   a.the rights of the child;

   b.the right as to appeal;

   c.whether refusal of a stay renders a successful appeal nugatory;

   d.the hardship to the successful respondent in comparison to the hardship of the appellant;

   e.the grounds of appeal.

2. The factor of most significance in the present application to my mind involves the rights of the child.  The child in question is an intelligent young girl who has recently expressed strong views not to see her mother.  Those views were expressed to a professional independent person whose evidence has been tested by cross examination.

3. In the more recent decision of K & B (2006) FLC 93288, the Full Court Warnick, May and Boland JJ held:

   “The interests of children would not be promoted by an inflexible requirement or presumption in every case 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.”

Factual Assessment

1. I expect the appeal will be heard in the first half of this year.  The irony is that I had allocated trial dates for a final hearing in April this year.  Progress to a final resolution of this matter will be delayed considerably by an appeal against interim orders.  However, the Mother has the right to appeal and it is a course she has elected to take.

2. I propose to adopt my usual practice and make no comments on the merits of the appeal other than to note the Mother has on occasions displayed characteristics which may be described as litigious.

3. The effect of acceding to the Mother’s application for a stay is to act counter to the strongly expressed wishes of an intelligent 11 year old girl, who was assessed by the Regional Co-ordinator of the Court’s Dispute Resolution Service.  I accept that Mr H is appropriately experienced and at all times acted in an impartial fashion when interviewing the child.

4. One consequence of allowing a stay is that it would effectively remove any motive for the Mother to prosecute her appeal expeditiously.

5. The stay application was not instituted until more than two months had elapsed since the orders were made.

6. I see no basis for granting a stay in the circumstances as outlined.  I gave my reasons on 29 September and 30 September.  I do not propose to depart from those reasons, the orders made can remain in place until the Appeal Court can hear and determine the matter.

Question of Appointment of Family Consultant to Explain Effect of the Orders of 29 September and 30 September 2008 to the Children

1. The Mother, by correspondence with a Registrar of the Court, has been seeking such an order.  The Father now does not oppose such an order.  I will make an order in the following terms:

   The Father is to present the children to a Family Consultant at a date and place to be determined by the Regional Co-ordinator of the Court’s Dispute Resolution Service, to have a family consultant explain to the children their rights and entitlements pursuant to the orders made by this Court on 29 September and 30 September 2008.

   Notation to order: In the event the family consultant wishes to consult with the Judge to confirm the intent of the orders, permission is given to do so.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  26 February 2009