Treloar and Nepean - [2009] FMCAfam 847

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRELOAR & NEPEAN

[2009] FMCAfam 847

FAMILY LAW – Application for stay of interim parenting orders pending appeal.

Family Law Rules 2004, Ch.22

Clemett and Clemett (1981) FLC 91-013
EJK & TSL(No.2) (2006) FamCA 806
Gronow & Gronow (1979) 144 CLR 513
House v R (1936) 55 CLR 499
Kelly & Kelly (1981) FLC 91-007
Nepean & Treloar [2009] FMCAfam 745

Applicant:

MS TRELOAR

Respondent:

MR NEPEAN

File Number:

SYM 3471 of 2006

Judgment of:

Altobelli FM

Hearing date:

24 July 2009

Date of Last Submission:

24 July 2009

Delivered at:

Sydney

Delivered on:

27 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

Slade Manwaring Solicitors

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Paul & Paul Lawyers

THE COURT ORDERS PENDING THE OUTCOME OF THE APPEAL THAT:

Order 4 made on 14 July 2009 be stayed on terms that the child spends time with the father in accordance with order 2 below.
The child, [X] born in 2003, spend time with the father as follows:
(a)For 3 alternate weekends from 10am Saturday to 5pm Sunday, commencing 1 August 2009;
(b)For a further 3 alternate weekends from after school Friday to 5pm Sunday;
(c)Thereafter each alternate weekend from after school Friday to before school Monday.
If there is to be an application for costs such application is to be made by way of written submissions, no greater than 500 words, to be filed and served within 14 days.
Any response to an application for costs be made by way of written submissions, no greater than 500 words, to be filed and served within 21 days thereafter.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 3471 of 2006

MS TRELOAR

Applicant

And

MR NEPEAN

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

This is an application for stay of orders made by me on 14 July 2009. The reasons were published as (2009) FMCAfam 745. The background of this matter is set out in those published reasons.
An application for stay is governed by the provisions of chapter 22 of the Family Law Rules 2004, specifically subrule 12. The applicable law is set out in the Full Court’s decision in Clemett and Clemett (1981) FLC 91-013, and I incorporate into these ex tempore reasons two paragraphs out of the judgment of Nygh J appearing at 76,175 of the judgment. I note that a much later Full Court decision in EJK & TSL(No.2) (2006) FamCA 806 confirmed that the principles in Clemett continue to apply, despite the very significant changes that have occurred since 1981 to the legislation.
In the stay application, I had the benefit of affidavits by the mother, her brother and the father, which, insofar as is relevant to the stay, depose to the child’s first experience with contact after the orders were made. I conclude from this evidence that [X] was upset on the second night of what was a four-day/three-night contact with her father and, indeed, this appears common ground. The mother asserts that [X] was also upset before and after contact. The father asserts she was not at all upset other than on the second night. The mother asserts that she is distraught at the potential effect of my orders. Under the circumstances, I accept all of the assertions made by both the mother and the father. I had the benefit of very good submissions from both Mr Batey, for the mother, and Mr Lloyd, for the father.
I consider now the matters referred to in the Full Court’s decision in Clemett. I do not believe this is a case where the appeal has been initiated as a delaying tactic. I accept that the appeal is a bona fide one from the mother’s perspective. She says, for example, that she is distraught by the orders I have made, and I accept that. I accept that the appeal appears to be based on substantial grounds. The notice of appeal has been comprehensively and, some might say, creatively drawn, but it is not as if the notice could be labelled as far fetched.
In Kelly & Kelly (1981) FLC 91-007, the Full Court says I should have regard to the merits of appeal based, of course, on the grounds. Whilst I have real reservations about the grounds of appeal, because it is an appeal against a discretionary judgment which, I think, is not “unreasonable or plainly unjust” to use the words of the High Court in House v R (1936) 55 CLR 499, and is not “plainly wrong” to use the words of Stephen J in Gronow & Gronow (1979) 144 CLR 513, nonetheless, I am not prepared to allow my own reservations to stand in the way of the granting of the stay if that would otherwise be in the best interests of [X].
The real question in a stay application is whether to grant a stay is in the best interests of [X] and, if so, on what grounds should a stay be granted. I specifically put it to counsel for the mother that if I granted a stay could it be on conditions or on terms. He thought it could, and suggested the condition or term for making the stay would be an order for contact as proposed by the mother in her notice of appeal, which was the same as the order for contact she sought before me at the interim hearing. Mr Lloyd, for the father, did not demur from the proposition that a stay could be granted on conditions or on terms and, indeed, the Full Court’s decision in Clemett is itself an example of where a stay was granted on terms (see, for example, page 91,014 of the report).
In determining whether to grant a stay or not, I must regard [X]’s best interests as the paramount consideration and not what the mother or father think about the correctness of my decision, or even, for example, what I think about the mother’s prospects of success on the appeal. I have already formed a view about what I regard as [X]’s best interests, and that is articulated in the published reasons for judgment referred to above.
Since then, two things have become obvious, which are relevant in the present context based on the evidence filed in the course of the stay application. Firstly, the mother is distraught by the decision. That is her subjective response. I cannot comment on whether it has any objective basis, but I am not prepared to ignore it, and I must accept the inevitability of a mother’s distress being apparent to a child, so it becomes very much a matter going to [X]’s welfare. And, secondly, [X] became upset on the second night of her contact with the father to the extent that even he decided it was appropriate to involve the mother. Experience in this jurisdiction suggests that this is an adjustment issue and commonly occurs in transitionary periods. Nonetheless, I am not prepared to ignore it.
I have decided to grant a limited stay, but on terms that provide for a modified contact order. Order 4 is one of the grounds appealed from. I will grant the stay of order 4 only, and on terms that see contact modified to the following effect. Firstly, for three alternate weekends, contact would be from 10am Saturday to 5pm Sunday. Next, for a further three alternate weekends, contact will be from after school Friday to 5pm Sunday, and thereafter each alternate weekend from after school Friday to before school on Monday. This will provide for a transitionary period over nearly three months before my original order is implemented. It is designed to attempt to address [X]’s upset and the mother’s distress without interrupting what I consider to be orders that are fundamentally in [X]’s best interests.
There is absolutely no further evidence before me that would support a stay of orders 2, 5 and 6, which are the subject of the notice of appeal. I stay the operation of order 4 made 14 July pending the outcome of the appeal on terms that the child spend time with the father as follows: so, for three alternate weekends from 10am Saturday to 5pm Sunday, for a further three alternate weekends from after school on Friday to 5pm Sunday; and, thereafter, each alternate weekend from after school Friday to before school Monday. So I grant the stay on those terms, and, of course, that comes into effect immediately. So to the extent that it varies the order I have previously made, it will apply immediately, and I will do the best I can to get these orders out in the next day or two.
If there is to be an application for costs, it can be by way of written submissions. Written submissions not exceeding 500 words to be submitted within 14 days. Any response, again not exceeding 500 words, within a further 21 days, and they can just be sent straight to the associate.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Anthony Thompson

Date: 12 August 2009