Traynor and Department of Family and Community Services NSW
[2014] FCCA 1793
•7 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAYNOR & DEPARTMENT OF FAMILY AND COMMUNITY SERVICES NSW | [2014] FCCA 1793 |
| Catchwords: FAMILY LAW – Appeal – stay – application for stay pending determination of substantive appeal. |
| Legislation: Family Law Act 1975 (Cth) s.60CC |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Department of Family and Community Services NSW & Traynor & Anor [2014] FCCA 1781 |
| Applicant: | MS TRAYNOR |
| Respondent: | SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES NSW |
| File Number: | SYC 4826 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 7 August 2014 |
| Date of Last Submission: | 7 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Griffin |
| Solicitors for the Applicant: | Jacqui Griffin |
| Counsel for the Respondent: | Ms Hartstein |
| Solicitors for the Respondent: | NSW Crown Solicitor |
ORDERS
The Application for a stay of the Orders made on 7 August 2014 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Traynor & Department of Family and Community Services NSW is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4826 of 2014
| MS TRAYNOR |
Applicant
And
| SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Respondent
REASONS FOR JUDGMENT
There is before the Court this afternoon an Application to stay orders by way of a recovery order and ancillary orders which I made this morning.
The Application in the substantive matter originally came before the Court on the 4th of this month, which was then ex parte. I adjourned the Application until yesterday at 2:00pm and made directions to advise the Respondent and, indeed, the Independent Children’s Lawyer in the other proceedings about the Application, and I heard the application for a recovery order yesterday afternoon.
I handed down my decision this morning and written reasons have now been provided to the parties. I granted a recovery order. I declined to make an order placing the child’s name on the Family Law Watch-List and I declined an order for publication of details of the child (Department of Family and Community Services NSW & Traynor & Anor[1]).
[1] [2014] FCCA 1781
The purpose of the proceedings related to proceedings in the Children’s Court of New South Wales which have been adjourned until tomorrow week, Friday 15th August 2014. On 29th July the Children’s Court had made an interim order placing the child under the parental responsibility of the Minister.
Before the Court today is an Application in a Case seeking a stay. The relevant order that is sought is set out in Order 1:
That the orders made 7th of the 8th 2014 be stayed pending the appeal. A copy of the notice of appeal has been provided. The appeal was lodged earlier today.
The facts relied upon for the appeal are set out at paragraph 6 of the Notice of Appeal, and say the child X is not at risk of immediate serious harm, as Department of Human Services in Victoria are involved in her family, and it is not in her best interests to be removed from the primary care of the Mother and disrupt the bond. It is a handwritten document and it is difficult to read.
The grounds of appeal are set out in paragraph 9 and say the Court’s discretion erred in the assessment of the best interests of the child X, in particular, subsection 60CC(2)(a) and (2)(b) and (3)(d) of the Family Law Act. The orders sought in the appeal are:
(1) the orders made 7th of the 8th 2014 be discharged;
(2) in the alternative, the matter be adjourned to the Children’s Court at Parramatta.
I have raised a query as to whether this Court has the power to transfer the proceedings before it to a State court. At this stage, I am not in a position to say that the Court does have the power but, in my mind, nothing turns on that.
For the Appellant, who is the First Respondent in the substantive proceedings, Ms Griffin has submitted:
a)(1) that if the stay is not granted, the appeal will be rendered nugatory;
b)(2) a preliminary assessment of the strength of the appeal is that it is an arguable case; and
c)(3) the undesirability of changing a child’s place of residence.
Ms Griffin, for the Appellant, submitted that if the mother is successful, the child would be first of all removed from Victoria to New South Wales and then back to Victoria.
Ms Hartstein of Counsel for the Respondent submitted that the Mother’s appeal may be arguable, but it does not have a high chance of success. Further considerations of safety of the child are overwhelming and, indeed, the Children’s Court has already made an order placing the child in the parental responsibility of the Minister.
In her submission in reply, Ms Griffin submitted that the Victorian Department of Human Services can provide any protective measures for the child and officers of that department have no concerns.
Applicable Principles
The applicable principles relating to an application for a stay pending an appeal are most usefully found in the decision of the Full Court of the Family Court of Australia, being Aldridge & Keaton (stay appeal)[2]. At paragraph [17] of the decision their Honours, Bryant CJ, Boland and Crisford JJ, said that:
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.
[2] [2009] FamCAFC 106
In paragraph [18] their Honours spelled out in some detail 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.
Those principles are set out in paragraph [18]. The authorities stressed the discretionary nature of the application which should be determined on its merits. Principles relating to the matter include the following:
(1)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.
(2)A person who has obtained a judgment is entitled to the benefit of that judgment.
(3)A person who has obtained a judgment is entitled to presume the judgment is correct.
(4) The mere filing of an appeal is insufficient to grant a stay.
(5) The bona fides of the applicant.
(6)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.
(7)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.
(8)Some preliminary assessment of the strength of the proposed appeal, whether the appellant has an arguable case.
(9)The desirability of limiting the frequency of any change in a child’s living arrangements.
(10)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.
(11)The best interests of the child the subject of the proceedings are a significant consideration.
Those are the principles which should guide this Court in deciding whether a stay should be granted.
Conclusions
As I said, whilst it is for the Applicant to establish a proper basis for the stay, there is no need to establish any special or exceptional circumstances. Certainly, the Department of Family and Community Services which obtained the judgment this morning is entitled both to the benefit of the judgment and to presume the judgment is correct. It is not argued that the mere filing of the appeal justifies the grant of a stay. It has not been argued by the Respondent to the appeal or the application for a stay that this is not a bona fide application. I am not of the view that this is a matter where a stay may be granted on terms. Either the stay is ordered or it is not. There is no halfway position or compromise position.
Certainly, it has been argued by the Applicant that if a stay is not granted, the appeal will be rendered nugatory. That may be the case. I note that the Notice of Appeal was filed today. There is no evidence before the Court as to the period of time in which the appeal can be heard. I do not know when it can be heard. There is only a limited period of time, in my view, as the substantive matter is back before the Children’s Court in eight days’ time on 15th August 2014.
I have considered the grounds in the notice of appeal. Essentially, the Appellant is arguing that the Court’s discretion miscarried in the assessment of the best interests of the child and that on a factual basis the child is not at risk of immediate serious harm because the Victorian department is involved with the family.
Of course, it has been argued, certainly, in the matter that was decided this morning, that the Victorian department does not have the same depth of knowledge of the circumstances as the New South Wales department has.
It is not for this Court to assess the merits of the positions of the departments which is a matter for the Court which hears the substantive application, namely, the Children’s Court. Certainly, the desirability of limiting the frequency of any changes in a child’s living arrangements is a matter for consideration, and there is some force in the argument that between now and 15th August 2014 there could be some disruption to the child’s living arrangements, and that clearly impacts on the assessment of the best interests of the child.
Certainly, it has been put on behalf of the Applicant in the substantive proceedings that the entire proceedings before this Court are motivated by a concern for the safety of the child, bearing in mind the history that has been put before the Court.
It was put before the Court in the substantive proceedings. It is, of course, difficult for a trial judge to predict what weight a Court of Appeal will give to the arguments on an appeal. Essentially, however, the argument is that the Court’s discretion miscarried and that the Court did not properly consider the best interests of the child.
I am not of the view that it is an argument of such strength that it would justify granting a stay. Bearing in mind the matters that I have considered both in the substantive matter, which was heard in the last 25 hours, relating to the New South Wales Department’s concern for the welfare of the child, I am of a view that it could not be said that the best interests of the child have not been considered, and the Application for a stay is dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 8 August 2014
0
2
2