THOMPSON & BANE
[2018] FamCA 709
•12 September 2018
FAMILY COURT OF AUSTRALIA
| THOMPSON & BANE | [2018] FamCA 709 |
| FAMILY LAW – ORDERS – Stay – Whether to stay final parenting orders pending appeal. |
| Family Law Act 1975 (Cth) s 60CA |
| Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 EJK & TSL (No. 2) [2006] FamCA 806 K & B (2006) FLC 93-288 Thornton & Thornton (No. 2) [2015] FamCA 301 |
| APPLICANT: | Ms Thompson |
| RESPONDENT: | Mr Bane |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 593 | of | 2010 |
| DATE DELIVERED: | 12 September 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 3 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tredrea |
| SOLICITOR FOR THE APPLICANT: | Jordan & Fowler Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Ross |
| SOLICITOR FOR THE RESPONDENT: | Adelaide Hills Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Roberts |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That the Application for Stay filed 13 August 2018 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Bane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 593 of 2010
| Ms Thompson |
Applicant
And
| Mr Bane |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Following protracted proceedings between Ms Thompson (“the mother”) and Mr Bane (“the father”) a final hearing was conducted in March 2018. Judgment was delivered on 27 April 2018 and orders made that finalised the parenting arrangements for B born in 2006, C and D both born in 2008 (collectively “the children”).
The orders were detailed but primarily provided for the mother to have sole parental responsibility for the children, that they live with her and spend time with the father as provided for in paragraphs 9 and 10 of the orders.
To better understand the issues to be considered, paragraphs 9(a) and 9(b) of the orders needs to be set out in their entirety:-
9. That the father spend time with the children as follows:-
(a)As to the child B:-
(i)At any time subject to B’s wishes including overnight time should the said child request same, with the mother to advise the father forthwith of any expressed wish and to facilitate such request as soon as is practicable;
(ii)As and from 19 October 2018, each alternate weekend from the conclusion of school on Friday, or 3pm if a non-school day, until 6pm Saturday;
(iii)That order 9(a)(ii) shall be suspended during school holidays;
(b)As to the children C and D:-
(i)As and from 6 July 2018, each Friday from 3.30 pm until 7pm for a period of eight (8) weeks;
(ii)As and from 19 October 2018, each alternate weekend from the conclusion of school on Friday, or 3pm if a non-school day, until 6pm on Saturday.
Paragraph 9(c) of the orders concerns the parenting arrangements for the children in terms of holidays and special occasions as and from 2019.
Paragraph 10 of the orders provides for the handover arrangements to be effected from the children’s school, the mother’s residence if the children are not at school or as a venue of last resort, a police station.
On 28 May 2018 the mother filed a Notice of Appeal in respect of paragraphs 9 and 10 of the orders made 27 April 2018. There are 11 grounds of appeal with grounds 1 to 5 relating to the child B, grounds 7, 9 and 10 relating to the children, ground 8 relating to D and ground 11 relating to C.
The mother filed an Application in a Case on 13 August 2018 seeking the following orders:-
(1)That the application be heard urgently before 17 August 2018.
(2)That the operation of paragraphs 9, 10, 11, 12, and 13 of the orders made 27 April 2018 be stayed pending determination of the mother’s Notice of Appeal.
(3)That the mother be granted permission pursuant to rule 15.51 of the Family Law Rules 2004 (Cth) to produce to the Court a report from [Mr O], the psychologist treating the child B in support of the Application in a Case.
The application was supported by a detailed affidavit.
Counsel for the mother conceded that given the mother only sought to appeal orders 9 and 10, the application for stay could not be pressed in relation to paragraphs 11, 12 and 13 of the orders.
There was a further concession that the gravamen of the application was really focussed on paragraph 9(a)(ii) and 9(b)(ii) as being the orders that would provide for B and C and D to spend time with the father as and from 19 October 2018.
Counsel also advised that the mother’s appeal had been the subject of a directions hearing and it was likely that it would be heard in the November 2018 sittings of the Full Court in Adelaide.
LEGAL PRINCIPLES
In Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 the following is set out:-
17.This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
18.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) 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) 161 CLR 681; Clemett & Clemett (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.
An order granting a stay is not a parenting order within the meaning of s 60CA of the Family Law Act 1975 (Cth) (see, eg, Thornton & Thornton (No 2) [2015] FamCA 301). In EJK & TSL (No 2) [2006] FamCA 806 the Full Court considered at [17] that the best interests of the child may not be the paramount consideration in an application for stay they must be a significant consideration. .
BASIS FOR THE STAY
The mother contends that prior to the final orders B had not spent time with the father since October 2016 and C and D had spent no time with him since October 2017.
The orders provide for overnight time to commence with the father on 19 October 2018. The first overnight period would be before the anticipated appeal in November 2018.
The mother is concerned at her ability to comply with the orders given her observations of the children’s reluctance to engage with the father.
The mother considers it unlikely that B in particular would readily spend an overnight period with the father after not having seen him for two years.
She apprehends that the steps that may have to be put in place to ensure compliance with the order may present as a psychological risk to the children. There is likely to be distress and upset caused to the children. It is also asserted that the father has made no effort to learn or understand C’s medical needs and behavioural difficulties.
The mother sets out the efforts to comply with the orders on 6, 13, 20 and 27 July 2018 and 3 August 2018.
Further difficulties arise in terms of the alleged preparedness of the school to facilitate handover arrangements.
The father opposes the stay and whilst he concedes that there has not been strict compliance with the orders, there have been occasions when the children have interacted with him and whilst he considers that the mother continues to thwart the children spending time with him, nonetheless progress is being made.
The father points to promising interactions on 3 August 2018 and in particular on 17 August 2018 when the mother agreed to bring the children to a McDonald’s Restaurant to have a meal with the father. It is his observation that the children appeared happy to see him and the interaction was positive and free of anxiety or distress.
The father is concerned that if the stay is granted, the modest progress that has been made and the potential to further improve the children’s relationship with him will be brought to an end.
The father recognises the mother’s concerns that she is at risk of contravention proceedings. The father’s counsel conceded that the father had contemplated a contravention application but it had not yet been advanced.
A concession was made that the father would not pursue contravention proceedings pending the determination of the appeal.
Counsel submitted that the orders should not be stayed given the strong findings made against the mother that she does not intend to comply with the orders and that she is unlikely to promote the children’s relationship with the father.
If the orders are not stayed, it provides an environment whereby the mother will need to consider that the best interests of the children are served by them having a meaningful relationship with their father.
The mother does not disagree that there has been some interaction between the children and their father although she would consider that it is not as promising as the father contends. Nonetheless, she considers that the children should have a relationship with their father and promotes that there be a process of reunification therapy rather than strict compliance with the orders.
In circumstances where the parties agree that the best interests of the children are served by them having a relationship with the father but the difficulty arises in terms of how that should be achieved, a stay of the orders would effectively terminate any opportunity for the children to see their father.
The father’s concession that he will not pursue enforcement would remove the principal concern of the mother and provide an opportunity for the parties to promote the children’s relationship with the father and to explore ongoing opportunities for the children to spend time with him.
CONCLUSION
The father is entitled to the benefit of the judgment unless circumstances exist which raise the risk of the appeal being rendered nugatory. It can be argued that the relatively short period of time for the appeal being heard and determined is such that the applicant argument centres upon the balance of convenience. In the ordinary course that argument has merit. The father’s concern if a stay is granted is that the progress that has been made may be lost and if so, that consideration must be brought to account as a significant factor affecting the children.
The question for determination is whether a dismissal of the mother’s stay application would provide an injustice to her. I am not able to determine the likelihood of success of the mother’s appeal, but by reference to the affidavits filed by the mother and in particular reports that she sought to tender on behalf of her psychologist and B’s psychologist were not introduced into evidence by her but may well be part of an application to adduce further evidence at the appeal I find that she presents an arguable case.
In K & B (2006) FLC 93-288 the Full Court said at [32]:-
… 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 order, or significant events which have occurred after the making of those orders.
The concession of the father that he will not bring any contravention application pending the determination of the appeal is an important consideration. In those circumstances, I give weight to the entitlement of the father to the benefit of the judgment, not necessarily as to the specific terms and conditions of the orders, but to the thrust of the judgment namely, that the children will benefit from having a relationship with him.
Given the mother’s concession that there has been some positive progress I am not confident that if the orders are stayed that will continue.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 September 2018.
Associate:
Date: 12 September 2018
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