Summers and Ritchie (No 2)

[2009] FamCA 1157

FAMILY COURT OF AUSTRALIA

SUMMERS & RITCHIE (NO. 2) [2009] FamCA 1157

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings

Family Law Act 1975 (Cth)

Clemmett (1981) FLC 91-013
Kelly & Kelly (1981) FLC 91-007

APPLICANT: Ms Summers

RESPONDENT: Mr Ritchie

INDEPENDENT CHILDREN’S LAWYER: Ms Dart

FILE NUMBER: BRF 2385 of 2006

DATE DELIVERED: 23 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 23 November 2009

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT:

Ms Byrne

Whitehead Payne Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Dart
Legal Aid Queensland

Orders

1. The Application for a Stay of Orders filed by the Mother on 28 October 2009 is dismissed.

2. The costs of today are reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2385 of 2006

MS SUMMERS

Applicant Mother

And

MR RITCHIE

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. On 5 October 2009 I made orders in this matter in which the parents of a child, born in April 2004, have been fighting about her parenting arrangements for the whole of her life.  I delivered ex tempore reasons for judgment in respect of the orders made on that day.

2. On 28 October 2009, the mother filed a Notice of Appeal in respect of those orders and, at the same time, filed an Application for stay of those orders, which such application is accompanied by an affidavit sworn by her.  The context in which the appeal and this application is made needs to be further expanded.

3. On 11 August 2009, I had earlier made a series of orders in relation to the child.  The mother appealed those orders by a Notice of Appeal filed shortly thereafter, and also sought a stay of those orders, pending that appeal. Shortly thereafter, the mother filed a notice of discontinuance of that appeal, and as a result, the application for stay in respect of that appeal consequentially lapsed.

4. The current appeal and application also occurs in a significant context relevant to an assessment of the child’s best interests. 

5. First is the matter already referred to, namely that, in her short life, the child has seen nothing but litigation about her best interests, and has witnessed, apparently, no capacity of her parents to co-parent. 

6. Secondly, as I referred to in my reasons for judgment given on 5 October, this matter not only has a long history, but a sorry history that includes significant recalcitrance on the part of the mother in providing time for the father to spend with his daughter. 

7. The mother made it clear in those earlier proceedings, and makes it clear again today, and indeed, makes it clear in what purports to be her Notice of Appeal, that her position is that the child should not only spend no time with her father, but should have absolutely no communication whatsoever, in any form, with him, or with his parents, the child’s grandparents.

8. Parenting proceedings were being conducted by Bell J, as part of his Honour’s docket.  His Honour had made orders on 8 July 2009.

9. In what might be seen to be highly unusual orders made by his Honour on that occasion, Bell J ordered that as part of time being facilitated and supervised pursuant to s 65L of the Act, a recovery order issue for the recovery of the child, but that it lie in the registry, and that it be executed if the mother failed to deliver the child “…on each and every occasion as is required in order 1 hereof.”

10. It might be seen, then, if only from the terms of that order alone, that his Honour, too, was concerned about the recalcitrance exhibited by the mother in respect of the time and communication between the child and her father.

11. It is to be observed that the Notice of Appeal filed by the mother is admitted as not having been served on either the solicitors for the father, or the Independent Children’s Lawyer.  It is said by the mother that she “has further work to do” in respect of that Notice of Appeal.  How that purports to be a reason for not serving a document required under the rules to be served, eludes me.

12. In respect of the application and affidavit for stay, the mother says that she served those documents by facsimile.  The mother’s facsimile has, it seems, been at all times functional and effective in communicating with the court, (of which the most recent example is two facsimile transmissions received at 3.30 and 3.33 on Friday afternoon last, seeking that the mother appear by telephone in respect of the application this morning). Yet, oddly, each of the solicitor for the father, and the Independent Children’s Lawyer, have not received the facsimile transmission allegedly sent by the mother, serving the application for stay and accompanying affidavit.

13. In any event, the solicitor for the father, and the Independent Children’s Lawyer, were content to allow the mother’s application to proceed before the court this morning, despite the fact that each of them had only quickly read the Notice of Appeal, the application and the affidavit in support of that application. 

14. In that way, they were each, as it were, “doing the mother a favour” because doing so allowed the mother’s application for stay to proceed urgently instead of needing to be adjourned and be heard on a subsequent occasion.

15. The Notice of Appeal filed by the mother contains what purport to be, 31 grounds.  The word “grounds” must be used loosely, because, in nature and form, the Notice of Appeal consists of 31 paragraphs that are more in the nature of an affidavit, much of which relates to what might be described as assertions about the history of this matter, and significant complaints by the mother against this court, both in respect of these proceedings and, I gather, in respect of proceedings previously conducted between the mother and her previous partner, and their son.

16. Favourably to the mother, I will proceed on the assumption that the appeal, notwithstanding what I respectfully consider to be the significant deficiencies in the Notice of Appeal, is made bona fides by her and not made for the purposes of delay. 

17. So, too, I proceed on the assumption (again favourable to the mother) that the Notice of Appeal, in its current form, is competent and discloses what might be regarded by the Full Court as grounds of appeal, albeit that a process of “reframing” would, in my view, be necessary by that court before the appeal could proceed. 

18. I will assume, again, favourably to the mother, that the Notice of Appeal, then, contains grounds brought on a bona fide basis, which allege error on my part in making the orders which I did on 5 October.

19. It needs to be observed that the orders made on that day were interlocutory, or “interim” orders.  Although leave to appeal is not required in this court, they being parenting orders, nevertheless, it is important to observe the principles applicable upon an appeal, from interlocutory or interim orders. 

20. It is impossible for me to conclude, in light of the matters just referred to, that this appeal enjoys reasonable prospects of success.  I take that into account as one of the matters relevant in deciding whether a stay of my orders ought be granted.

21. The general principles, in respect of applications for a stay, have been dealt with in a number of earlier decisions of the Full Court of this court, principle among them being Kelly & Kelly (1981) FLC 91-007, and Clemmett (1981) FLC 91-013.

22. It is plain that the court has a discretion whether to order a stay. That discretion is exercised in circumstances where, as Rule 22.11 makes clear a Notice of Appeal does not, without more, operate as a stay of orders made by this court.

23. It is necessary, in deciding whether to exercise the discretion in favour of ordering a stay, to consider a number of matters, some of which I have already referred to. 

24. An important matter in parenting cases is the best interests of the child. In this jurisdiction, as in other jurisdictions, an important consideration is whether there is a real risk that denying a stay will render the appeal nugatory.  So too, it is important to take into account the prejudice, or possible prejudice, to a respondent to the appeal, who, by reason of orders having been made by the court, is entitled to expect that those orders will be carried into effect.

25. It seems to me that, here, no argument has been advanced on behalf of the mother to suggest that the failure to grant a stay would render any appeal nugatory. 

26. There is, in my view, significant prejudice, or potential prejudice, to the respondent, who has been now engaged in litigation over a considerable period of time, in an attempt to arrive at arrangements for having some form of contact, albeit as earlier orders have provided, supervised time.  In that respect, it is important to observe that, in the proceedings before me, the mother sought to have the position with respect to parenting orders, return to orders made much earlier by Bell J.  Those orders were made in about the middle of 2008.

27. That application, as I said at the time, simply ignores all of the matters important to the child’s best interests, which have occurred in the 12 months since those orders were made.  That is an important consideration in assessing whether the failure to grant a stay will render any appeal nugatory.  It is also an important consideration in looking at the possible prejudice to the respondent father.

28. Parenting proceedings, and appeals from parenting orders, occupy a somewhat unusual position with respect to the granting of stays, because in such an application, as in virtually all applications relating to children, their best interests is the predominant consideration. 

29. Plainly enough, if I considered that the appeal, if successful, was likely to impact significantly on orders made by me that might have a direct impact on the best interests of the child, the mother’s case for a stay is significantly stronger.  That, in my view, is not the case here. 

30. There are a number of reasons for that, most of which can be found in my earlier reasons for judgment, which referred to evidence given by Ms B, a family consultant who had prepared a Children’s and Parents’ Issues Assessment Report.

31. It is important to again mention some of those matters in the context of this application, thereby rendering it apparent in these reasons that I am acutely cognisant of the child’s best interests in making the orders that I make here. 

32. Ms B notes that:

    When I arrived on the ground floor, I could hear (the mother) speaking in a very loud and agitated voice, stating words to the effect of “This is wrong on so many levels ... I should not have to be here ... the court will not listen to me ... my child should not have to go through this.”  The child, […], was standing beside her mother, holding on to a doll’s pram.  Her affect was flat and unemotional.  When spoken to, she responded politely, and was happy enough to accompany myself up to the child care room on level 3.

33. Ms B advised the mother that speaking about her perceptions of court matters, and the injustice of how she sees she or children were treated either in these proceedings or in earlier proceedings, was utterly inappropriate in front of a child of this child’s age. 

34. Ms B goes on to say:

    The mother was advised not to speak about her perceptions of court matters in front of the child, and that she would have an opportunity to voice her opinion privately once we had [the child] settled.  The mother continued to speak over the top of myself, ignored my advice not to talk in front of the child, and continued to criticise the court and the father throughout the process of signing [the child] into the child care room.

35. I, myself, had to speak to the mother about speaking over the top of me twice during the course of the proceedings this morning, where, despite late notice and her failure to serve the application for telephone evidence, the mother was granted the indulgence of appearing by telephone.

36. In what I consider to be an important aspect of the preliminary report prepared by Ms B, she says:

    [The child] was relaxed and smiling, but still reticent to give her (paternal) grandmother a hug, and definitely resisted giving the father a hug.  [The mother] was still in an agitated state, and still loudly protesting about having to be at the registry and still stating that, “This is wrong on so many levels”, in front of the child.  It was noted that [the child’s] affect had become (emphasis added) flat and non emotional once again.

37. Ms B goes on to say:

    Again, I tried to explain to [the mother] that her non compliance with previous court orders, and her non attendance to court ordered assessment appointments, was hindering the court’s attempts to decide what is in the best interests of [the child], and that, had she cooperated with the court in the past, it might have been possible to have reached a satisfactory outcome that ensured that [the child] was, indeed, safe, but was afforded the opportunity of knowing and having a safe relationship with both her parents.  [The mother] continued to talk over the top of me, and I cannot be certain that she heard what I said.

38. The reference there by Ms B to non attendance at court-ordered assessment appointments refers, specifically to attendances for the section 65L process.  That process, by definition, allows the court to have an opportunity to observe and assess the parties, and, crucially, the parties with the children. 

39. It is, in my view, significant that the mother has failed or refused to avail herself of those opportunities.  Opportunities to participate in section 65L processes are, by dint of the paucity of resources for such processes, not afforded to every case in this court.  It is an opportunity for parties to learn, grow and develop, in an entirely safe environment, their co-parenting skills and an opportunity for a trained expert to observe those interactions, to offer advice and to report to the court on the matters that are directly relevant to the determination of the child’s best interests.

40. Having now seen and heard the mother on a couple of occasions, I, myself, would be anxious for both parties to be psychiatrically assessed.  However, there are, or there have been in the past, difficulties in having the mother attend appointments for assessment. That assessment, too, has as its purpose, the prospect of providing to the court the widest possible level and extent of data, so as to allow informed decisions to be made about a child’s best interests.

41. In summary, then, if a consideration is to be given about the prospects of rendering an appeal nugatory, which is an important, but by no means the sole, consideration in granting a stay, it is necessary to look at all of the matters to which I have just referred, including the prospects of success of any such appeal from an interlocutory order, the lengthy history of this matter, the concerns about the need for the child to commence the process of having a relationship with her father. That needs to be balanced against what the mother would, apparently, agitate for, both on an interim basis and, I gather, a final basis, and that is, that the father and his parents be completely, entirely and totally excluded from her life in every way, shape and form.

42. In that respect, it is significant, in my view, to note that the so-called Notice of Appeal filed by the mother concludes:

    My children and I have suffered from years of abuse because the court has forced abusive men to come near us.  I want the court to order NO CONTACT.

43. In the exercise of my discretion then, for the reasons that I have just given, I refuse the application for stay.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  1 December 2009