STENNET & STENNET (No.2)

[2018] FCCA 2399

FEDERAL CIRCUIT COURT OF AUSTRALIA

STENNET & STENNET (No.2) [2018] FCCA 2399

Catchwords:
FAMILY LAW – Parenting – application for stay of interim orders pending appeal – stay declined.

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Applicant: MS STENNET

Respondent: MR STENNET

File Number: LNC 650 of 2015

Judgment of: Judge Altobelli

Hearing date: 22 August 2018

Date of Last Submission: 22 August 2018

Delivered at: Wollongong

Delivered on: 22 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Hill

Solicitors for the Applicant: Fay Rose Legal

Solicitors for the Respondent: Peter Jurd Lawyer

Solicitors for the Independent Children's Lawyer: Acorn Lawyers

ORDERS

1. The Application in a Case filed by Ms Stennet on 13 August 2018 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Stennet & Stennet (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

LNC 650 of 2015

MS STENNET

Applicant

And

MR STENNET

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I provide the following ex tempore Reasons for Judgment.  By way of an Application in a Case filed on 13 August 2018, the Mother in this case asks me to stay Orders that I made on 10 July 2018 pending her appeal to the Full Court.  The said Application is opposed by the Father and the Independent Children's Lawyer does not support the application.

2. The Mother was represented by her Counsel, Mr Hill.  Mr Jurd, the Father’s solicitor appeared for him by telephone, and Mr Williamson appeared as the Independent Children's Lawyer in this case.  The only evidence in support of the Application is the Mother’s Affidavit that was sworn on 3 August and filed on 13 August.  Each of Mr Hill, Mr Jurd and Mr Williamson made oral submissions before me this morning. 

3. Despite the application specifically seeking Orders that the Orders I made on 10 July be stayed pending the hearing of the Mother’s appeal, Mr Hill quite correctly varied that application this morning to reflect that it was only the Orders for the Mother to return to Tasmania with the children that was sought to be stayed pending the hearing of the appeal. 

4. The only other evidence before the Court is the Court’s Reasons for Judgment that were published on 10 July.  The Reasons for Judgment are quite comprehensive, and for my part, largely self-explanatory.  The only other relevant facts, none of which appear to be in contention, are that this matter is listed for hearing some time in December before Judge McGuire in Tasmania.  A Family Report has been ordered.  The only other uncontentious fact is that the Mother continues to be here in New South Wales with the children.

5. Mr Hill helpfully referred the court to the Full Court’s decision in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. The relevant paragraph to me appears to be paragraph 18 of the said Full Court judgment that sets out the principles in relation to determining an application for a stay:

   The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   a person who has obtained a judgment is entitled to the benefit of that judgment;

   a person who has obtained a judgment is entitled to presume the judgment is correct;

   the mere filing of an appeal is insufficient to grant a stay;

   the bona fides of the applicant;

   a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   the desirability of limiting the frequency of any change in a child’s living arrangements;

   the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   the best interests of the child the subject of the proceedings are a significant consideration.

6. The onus to establish a proper basis for the stay is on the Applicant, that is, the Mother in this case.  It is not necessary for her to demonstrate any special or exceptional circumstances.  Both the Father and the Independent Children's Lawyer submit that she has not discharged the onus that is on her, and as it turns out, having regard to the other principles to which I will shortly turn, the Court agrees. 

7. The second principle is that a person, in this case, the Father, who has obtained a judgment, is entitled to the benefit of that judgment.  That was an explicit submission made on behalf of the Father in this case. 

8. The third principle is that a person who has obtained a judgment is entitled to presume the judgment is correct.  The Court notes that an appeal has been filed.  The Notice of Grounds of Appeal are perhaps somewhat loosely drafted but nonetheless raise a number of issues.

9. The next principle is that the mere filing of an appeal is insufficient to grant a stay. 

10. The Court notes that the next principle is about the bona fides of the Applicant.  There is no suggestion that the Mother is not acting in good faith in pursuing the appeal and seeking the stay. 

11. The next principle is that a stay be granted on terms that are fair to all parties.  This may involve a Court weighing the balance of convenience and the competing rights of the parties.  The conditions on which this stay is sought relates only to the order for the children to in effect be returned to Tasmania, which is quite an appropriate limitation of the stay.  Also, the stay is of course pending the final hearing before Judge McGuire in December. 

12. The next factor is a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted.  The Full Court noted that this will be a substantial factor in determining whether it would be appropriate to grant a stay.  It seems common ground between those appearing in this matter that it is unlikely that the appeal will be heard before December when the matter will be heard by Judge McGuire in Tasmania. 

13. A factor that is relevant as to whether the appeal is rendered nugatory is what steps have been taken to enforce the Orders that I made on 10 July.  Whilst I am not personally aware of this, I accept at face value what the solicitor for the Father has indicated, and that is that he has caused to file a Contravention Application that is returnable before Judge McGuire on 24 September 2018. 

14. I can see the appropriateness of the matter being filed before His Honour given that the matter is now in his docket. The experience of this Court, and I did not hear much opposition to my observations in this regard, is that the most likely scenario is that His Honour will deal with the contravention as part of the final hearing before him when he is fully appraised of the evidence, has a Family Report, and will be able to conduct a proper hearing.

15. I refer to all of these matters because I am not satisfied that the appeal will be rendered nugatory if I do not grant the stay that is sought.  True it is that the Mother is in breach of the Orders that I have made for her to return with the children to Tasmania. In the circumstances, there is a relatively short period of time before a substantive hearing before this Court. It is not necessarily the case, indeed, I would suggest it is highly unlikely, that she will be compelled to do the thing that she has been ordered to do before the final hearing before His Honour, and in those circumstances I cannot see how the appeal would be rendered nugatory if a stay were not granted.

16. Returning to the Full Court’s principles as stated in Aldridge & Keating, I must undertake some preliminary assessment of the strength of the proposed appeal and whether the Appellant has an arguable case.  I accept for present purposes that the Appellant has an arguable case. 

17. The next principle is to consider the desirability of limiting the frequency of any change in the children’s living arrangements.  Having regard to what I have already observed earlier, I cannot foresee at this point the prospect of there being a further change in the children’s living arrangements before the matter comes before Judge McGuire for hearing.

18. The next consideration is the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay.  In the circumstances of this case and as mentioned earlier in these reasons, it seems unlikely that the Full Court will hear this appeal before December, and indeed, one wonders whether there is even the necessity in the circumstances. 

19. The last matter that needs to be taken into account is the best interests of the children.  Despite Mr Hill’s valiant submissions this morning, he has said nothing that would cause me to revisit in the least bit the decision that I made on the last occasion, that is, on 10 July, when I considered exhaustively what I considered to be in the best interests of these children.

20. The Court observes in passing that in the Mother’s Notice of Appeal in the orders that she proposes for the children to spend time or communicate with the Father, all that she does is to propose for the father to have FaceTime communication with these children, and that is on a final basis. 

21. Having regard to the matters that I discuss at length in my Reasons for Judgment and the Orders I made which are of course subject to appeal, she fails with respect to address the issue of the children having some form of relationship with their father in circumstances where she consented to Orders that would, if they had been properly implemented, have seen that take place. 

1. In the circumstances, all of the matters that I have considered lead me to conclude that the application for stay should be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 29 August 2018