Taylor and Lethbridge
[2014] FCCA 2990
•17 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAYLOR & LETHBRIDGE | [2014] FCCA 2990 |
| Catchwords: FAMILY LAW – Children – application for stay of orders pending appeal – application dismissed. |
| Legislation: Family Law Reform Act of 1995 |
| Commissioner for Taxation & Myer Emporium Limited (1986) 160 CLR 220 Clement (1981) FLC 91-013 EJK & TSL (No.2) (2006) 35 Fam LR 590 JRN and KEN & IEG and BLG (1998) 72 ALJR 1329 |
| Applicant: | MR TAYLOR |
| Respondent: | MS LETHBRIDGE |
| File Number: | BRC 4768 of 2012 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 17 December 2014 |
| Date of Last Submission: | 17 December 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 17 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appearing in person |
| Solicitors for the Respondent: | The Respondent appearing in person |
| Solicitors for the Independent Children’s Lawyer: | Forest Glen Lawyers |
ORDERS
That the Application in a Case filed 5 December 2014 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Taylor & Lethbridge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRC 4768 of 2012
| MR TAYLOR |
Applicant
And
| MS LETHBRIDGE |
Respondent
REASONS FOR JUDGMENT
I have before the Court today an application for a stay of orders that were made by me on 20 November 2014 after a significant final hearing held at various times throughout this year.
Those orders provided, in effect, for the father to have sole parental responsibility for a seven and a half year old child, X. The orders also provided for the child to live primarily with the father and made a provision for the child to spend time with the mother subject a number of conditions and if those conditions were not met, some supervised time at the (omitted) Contact Centre. A number of other ancillary orders were also made.
On 1 December this year, the mother filed a notice of appeal against those orders. The grounds of appeal are lengthy and I do not propose to recite them all into this judgment, but the mother raises a number of concerns about the effect of those orders, not only on herself, but also in the child, X. I am not aware whether a return date has been set for the first mention of that appeal.
The mother then, on 5 December, filed an application in a case which brings the matter before me today. In the application she sought a number of orders, the primary order which is being determined by this judgment, is for a stay of those orders and she sought that that be done as a matter of urgency.
She then sought that the appeal be heard on an urgent basis. She asked for the matter to be “listed as a biased case which unfairly discriminates against the mother”. She sought an order restraining Ms H from further participation and input in this case and that the child, X, be placed in her primary care until the appeal is determined.
The father opposes the stay and his Response also sought some other orders. In particular, that there be some protective restraints placed upon the mother. The independent children’s lawyer opposed the stay. I indicated at the commencement of hearing today’s matter that I would not be prepared to consider the other orders other than the application for the stay.
The reason for that is this, a number of the factors raised by the mother are really matters for the Full Court of the Family Court who will hear the appeal. The request for urgency is a matter the mother will be able to raise with the Appeals Registrar when the matter goes before him or her.
As for restraining Ms H from further participation, I do not consider it appropriate to consider that aspect today. That is a matter that can be raised again if the mother is successful in her appeal and the matter needs to be re-heard by another judge. But given that this matter is now on appeal, it is not a factor that I should consider today.
In relation to changing the child’s residence, I’m of the view it is not appropriate to consider that given I delivered detailed reasons for judgment after a five day hearing as to where the child should live.
The father seeks, also, orders of a protective nature. Whilst there has been a number of incidents set out in his affidavit that he says supports his reasons for seeking those orders, I am not satisfied it’s appropriate to consider them in light of the appeal before the Full Court, and in light of the fact that I heard a lengthy final hearing throughout the year.
I will turn, firstly, to the legal approach that needs to adopted in determining a stay application. Rule 22.11 of the Family Law Rules provides that the filing of a notice of appeal does not stay the operation, or enforcement, of the order appealed from unless otherwise provided for by a legislative provision. There is no legislative provision in this case that would automatically stay the operation of my orders of 20 November.
22.11(2) provides:
If an appeal has been started –
Which, in this case, it has –
- a party may apply for an order staying the operation or enforcement or part of the order to which the appeal or application relates.
That’s what the mother has done and which I’m hearing today.
22.11(3) provides:
An application for a stay must be filed in the registry in which the order under appeal was made and be heard by the judge who made the order under appeal.
That is what the mother has done and I am the judge that made the order under appeal and, therefore, the mother has done all that is necessary to properly bring her application before me today.
In Commissioner for Taxation & Myer Emporium Limited (1986) 160 CLR 220, Dawson J considering the provisions of order 70, rule 12 of the High Court Rules applicable at that time and analogous to the rule 22.11 stay applications under the Family Law Rules, held as follows:
It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify the departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from be nugatory. Generally, that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.
I have, in quoting that, removed the references to which his Honour was referring.
Now, whilst those principles remain applicable to parenting cases, the Court in exercising its discretion as to whether a stay order should be granted, must consider the implications for the child or children. In Clement (1981) FLC 91-013, Nygh J, with whom the other appeal judges agreed, held:
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.
Now, that case, though, was decided prior to the Family Law Reform Act of 1995, and when the whole of Part VII required the application of the best interest principles. Under the Family Law Act as it currently stands, when making a parenting order, the Court must consider the child’s best interests as the paramount consideration, section 60CA.
A stay order is not a parenting order, and therefore, the best interest principles does not apply anymore to such an application. Nevertheless, although not the paramount consideration, the child’s best interests remain a significant consideration. See for example, EJK & TSL (No.2) (2006) 35 Fam LR 590 at 594 paragraph 17, where the Full Court quoted from the decision of Kirby J in JRN and KEN & IEG and BLG (1998) 72 ALJR 1329 at 1332:
In my opinion, some adaption of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court, and in particular, children whose welfare must always be in the mind of the Court in making an order affecting their interests.
The mother is clearly concerned that I have X in my mind when making my decision today.
This child, though, has been living with the father since the recovery order made by Judge Coker was executed on 16 October 2013. His Honour’s orders provided that the child live with the father; that the father have sole parental responsibility for her; that the child spend supervised time with the mother each alternate weekend at the (omitted) Children's Contact Centre at a time that can be arranged by the contact centre; that the parents equally share the cost of the mother’s attendance at the centre; and that the mother be restrained from attending the child’s school or after school care.
The orders that were made by me on 20 November were more detailed. And although the child’s primary residence was not altered, nor the parental responsibility, provision was made for the mother’s time with the child to increase if certain conditions were met. Although the mother is not obliged to meet them. If she doesn’t, however, the child’s time with her remains as it has been pursuant to his Honour’s orders.
The mother complains about the orders I made including, and significantly, those conditions that I imposed in order to provide for increased time to the mother. If I was to grant the stay that the mother seeks, the operative orders would be those made by his Honour Judge Coker. The mother also complains about them.
Although the mother has sought orders that go beyond the stay application, I’ve already indicated that I have declined to determine that part of her application because they really go to the heart of the application that was before me and determined by me last month after a five day hearing.
The refusal to grant the stay orders sought will not render the mother’s appeal nugatory in any respect. To refuse the stay would not change the child’s current primary living arrangements in any way.
In all of the circumstances, I am satisfied the mother’s application for a stay should be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 22 December 2014
Key Legal Topics
Areas of Law
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Civil Procedure
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